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Canada Ratifies WIPO Internet Treaties

Michael Geist Law RSS Feed - Fri, 2014/05/23 - 04:12
Canada has formally ratified  the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The ratification was a key part of the copyright reform process, leading to contentious debate over the Canadian approach to providing legal protection for digital locks. The treaties will enter into force on August 13, 2014.

From Toews to Todd: The Unravelling of the Government's Lawful Access Sales Strategy

Michael Geist Law RSS Feed - Fri, 2014/05/23 - 03:32
As criticism of Bill C-13 mounts, the government's sales strategy for its latest lawful access bill is starting to unravel. Many will recall the immediate, visceral opposition to Bill C-30, the last lawful access bill that started with then-Public Safety Minister Vic Toews declaring the day before introduction that Canadians could either stand with the government or with the child pornographers. The bill never recovered as Toews' divisive remarks placed the spotlight on the warrantless disclosure provisions and the lack of privacy balance. Within ten days it was on placed on hiatus and formally killed a year later.

While the government has removed some of the most contentious elements from Bill C-30, many privacy concerns remain (immunity for voluntary disclosure, metadata). Indeed, it appears that its primary takeaway from the last legislative failure - an incredibly rare moment in the life of a majority government - was that it was a botched sales job. So despite a promise not to bring back lawful access legislation, it did so months later, this time armed with a new marketing strategy. Bill C-13 was framed as a cyber-bullying bill and its primary sales people were presumably supposed to be the victims of cyber-bullying and their parents.

The turning point on Bill C-13 came ten days ago when they appeared before the Justice Committee studying the bill. Carol Todd, the mother of Amanda, led off and courageously insisted that the government stop using her child's name to undermine privacy:


"While I applaud the efforts of all of you in crafting the extortion, revenge, porn, and cyberbullying sections of Bill C-13, I am concerned about some of the other unrelated provisions that have been added to the bill in the name of Amanda, Rehtaeh, and all of the children lost to cyberbullying attacks.

I don't want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian's personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety.


We should not have to sacrifice our children's privacy rights to make them safe from cyberbullying, sextortion and revenge pornography."

Ms. Todd's comments effectively derailed the government's sales strategy for Bill C-13, making it clear that the failure to appropriately protect our privacy victimizes the same people the bill purports to protect. In the days since her appearance, the voices against the bill have grown louder. Ontario Privacy Commissioner Ann Cavoukian this week:

"The time for dressing up overreaching surveillance powers in the sheep-like clothing of sanctimony about the serious harms caused by child pornography and cyberbullying is long past."

Former Public Safety Minister Stockwell Day, who faced his own backlash against lawful access, yesterday:

"There can be an overreaction in terms of how you correct it. So [Cavoukian is] raising a bit of an alarm here. Let's be very careful in how we could protect someone in a situation like this, but let's also be careful in going too far and limiting even things like free speech, [or using] invasive techniques that could be employed by policing. I'm hoping they take another look at this and kind of curtail some of those powers."

Next week, the committee resumes with appearances from criminal lawyers, the Canadian Bar Association, and others (I'm currently scheduled to appear on Thursday). With the criticism likely to grow, the government should recognize that its lawful access strategy has failed yet again. The right approach would be to separate the bills, move forward on addressing cyber-bullying, and go back to the drawing board on surveillance and lawful access.

Who's Watching Whom: An Examination of Canadian Privacy and Surveillance

Michael Geist Law RSS Feed - Thu, 2014/05/22 - 03:46

Earlier this week I was pleased to speak at the monthly Geek Girls Toronto event. Hosted at the Mozilla offices, a sold-out audience showed yet again that there is enormous public interest and concern with recent privacy and surveillance developments. A video of the talk, which focused on the problems associated with lawful access, privacy reform, and surveillance, is posted below.




The Copyright Board of Canada Music Streaming Decision: The Good, the Bad, and the Ugly

Michael Geist Law RSS Feed - Wed, 2014/05/21 - 00:58
The Copyright Board of Canada issued its long-awaited music streaming decision late last week, setting royalties to be paid by Internet music streaming services such as Pandora for non-interactive and semi-interactive streaming for the years 2009 to 2012. This covers passive Internet radio services and services that allow users to influence what they listen to. Given that Pandora left the Canadian market over high tariff rates, the outcome of the decision was destined to be a key determinant over whether many of the missing Internet music streaming services enter the Canadian market.

For fans of Pandora or similar services, the decision brings good news. The board largely rejected the arguments of Re:Sound, the collective responsible for the tariff and settled on rates close to what the Internet services were seeking. While the collective argued for rates similar to those found in the U.S., the Board ruled that the U.S. was not a suitable comparison. 

Moreover, it rejected arguments that this form of music streaming cannibalizes music sales, concluding that exposure to music through non-interactive and semi-interactive streaming may increase sales:


We are unconvinced that non-interactive and semi-interactive streaming cannibalizes sales of CDs or downloads. Though the Objectors' evidence and arguments in this respect are not without contradictions, we agree with them, for the reasons set out in paragraph 157 below, that non-interactive webcasting is similar to over-the-air radio. We find that neither over-the-air radio nor non-interactive webcasting is likely to cannibalize music sales; if anything, they are likely to stimulate them.

The same is true of semi-interactive webcasts. Pandora's American free and paying subscribers are about twice as likely to purchase CDs or downloads as are non-subscribers. Furthermore, while purchases by Pandora's subscribers are declining, the decline is not as steep as for non-subscribers.

The end result are tariff rates that the Board estimates would constitute between 4 and 5 percent of Pandora's Canadian revenues. By comparison, the board says Pandora pays about 50% of U.S. revenues as royalties. If these estimates are accurate, Canada could emerge as an attractive market for music streaming services.

If that is the good news, the bad news is that Re:Sound may well send the issue to federal court for review. Re:Sound lost on many of its points and ended with a tariff far below what it was seeking. No surprise then that its president is quoted as saying:

“We are disappointed that the rates certified by the Board do not reflect market rates in Canada and are a small fraction of the rates payable by the same services in the U.S."

Re:Sound says it is reviewing the decision and will have more information shortly.

The ugly in this decision is the incredible length of the decision-making process. Re:Sound started this process in March 2008 - more than six years ago. In the years that followed, it adjusted its demands as the market changed. The Board finally heard arguments and evidence over a ten day period in September and October 2012. 

The decision therefore comes more than 18 months after that hearing. By virtually any standard - let alone an Internet one - this is an unacceptably long period of time to address an issue. The Supreme Court of Canada has a much bigger workload, yet releases its decisions far faster. Moreover, technology and the market move much faster than the board - consider that the iPhone launched in Canada in July 2008, months after the initial Re:Sound filing. The long delays created significant commercial uncertainty and likely led to delays in new services entering the Canadian market. As I argued earlier this month, the Copyright Board is broken and a serious digital strategy should commit to fixing it.

Podcast (FIXED): Firefox’s adoption of closed-source DRM breaks my heart

Note: This is a fixed version of this week's podcast; I accidentally uploaded an older podcast under this headline.

Here's a reading (MP3) of a my latest Guardian column, Firefox's adoption of closed-source DRM breaks my heart, a close analysis of the terrible news that Mozilla has opted to add closed source DRM to its flagship Firefox browser:

The decision to produce systems that treat internet users as untrusted adversaries to be controlled by their computers was clearly taken out of a sense of desperation and inevitability.

It’s clear that Mozilla plans to do everything it can to mitigate the harms from its DRM strategy and to attempt to reverse the trend that brought it to this pass.

Like many of Mozilla’s longtime supporters, I hold it to a high standard. It is not a for-profit. It’s a social enterprise with a mission to empower and free its users.

I understand that Apple, Microsoft and Google are for-profit entities that have demonstrated repeatedly that their profitability trumps their customers’ rights, and I fault them for this. But it’s not unreasonable to hold mission-driven nonprofits to a higher standard than their commercial counterparts.

Mozilla says it’s doing everything it can to reduce the harm from what it sees as an inevitable decision. As a Mozilla supporter, contributor and user, I want it to do more.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

European 'Right to be Forgotten' Ruling Fails to Strike Free Speech - Privacy Balance

Michael Geist Law RSS Feed - Tue, 2014/05/20 - 00:29
The European Court of Justice shook up the privacy and Internet world last week by ruling that European data protection law includes a right to be forgotten with respect to search engine results that are "inadequate, irrelevant or no longer relevant." As a result of the decision, search companies such as Google will be required to remove results from its index that meet this standard upon request.

My weekly technology law column (Toronto Star version, homepage version) notes that as people flock to remove content from the Google search index - reports indicate that the company began receiving removal requests within hours of the ruling - there remains considerable uncertainty about how to implement the decision, whether it will migrate to Canada, and if a new right to be forgotten will serve the cause of privacy protection or harm free speech and access to information.


The decision arises from a 2010 complaint by a Spanish man who was upset to find that searching his name in Google yielded links to a 1998 announcement in a newspaper on a real estate auction designed to generate proceeds to pay back social security debts. The information was both factual and readily accessible online, yet the man felt that the now-outdated information was a violation of his privacy.

As the case made its way through the courts, several European countries waded into the issue. The Spanish and Italian governments sided with the confirmation of a right to be forgotten, while Austria, Greece, and Poland supported Google’s position that it should not be required to remove lawful content from its search index.

In ruling against Google, the court reached two key conclusions.  

First, it ruled that it could assert jurisdiction over the search giant, despite the fact that the processing of the data took place outside of Spain. That aspect of the decision should not have been particularly surprising, since most countries take the position that a real and substantial connection (Google has a Google.es site and actively markets its services in Spain) is sufficient to assert jurisdiction over an out-of-country entity. For example, Canada maintains that its privacy laws apply to organizations outside the country that collect, use or disclose personal information of Canadians.

Second, the court ruled that Google could be compelled to remove links to personal information that is "inadequate, irrelevant or no longer relevant." While the court suggests that this akin to a right to be forgotten, it is really a right to digital obscurity since the actual content is not removed from the Internet.

Companies may be focused on the practical costs associated with content removal, but many already remove content if served with a valid court order, notification of defamation, or copyright infringement notice. Adding privacy removals may generate additional costs, but they do not raise significant technical challenges.

The legal challenges are far more troubling, however. First, the ruling vests enormous power and responsibility in the hands of search companies and other intermediaries. Rather than leaving difficult questions on the validity or harm of information to impartial courts, the ruling requires search engines to make the call.  Given the potential for liability if they refuse to remove the links, the search engines will likely err on the side of removal.

Second, the ruling does not lead to the removal of the underlying content itself, which in many instances may be both legal and accurate. If there are concerns about third party content (no one doubts the right of an individual to delete content they posted themselves), surely there is a need to address that issue, rather than targeting intermediaries such as search engines.

Third, the Supreme Court of Canada recently ruled that the law must sometimes balance important rights such as privacy and freedom of expression. Yet the European ruling suggests that privacy trumps freedom of expression and the right to information. By eliminating the need for balance, the ruling shockingly undermines important speech rights in return for a bit of online obscurity.

gratitude would have been better

Fair Duty by Meera Nair - Mon, 2014/05/19 - 23:11

Last week, the Ottawa Citizen published an op/ed written by Blayne Haggart, Assistant Professor of Political Science at Brock University. I have crossed paths professionally with Blayne, and fully share his concern about the detriment wrought by the expansion of copyright. However, in this instance, he may have done more harm than good.

At issue is the removal of Chris Hadfield’s reworking and performance of David Bowie’s composition Space Oddity from YouTube. Readers of the Ottawa Citizen may have come away with the impression that Bowie pressured Hadfield to remove the video. Or that Bowie compelled YouTube to issue a takedown notice of the video. As reported by Joe Silver at ArsTechnica on 14 May 2014, Hadfield chose to remove the video himself, in compliance with the agreement he had made with Bowie, and that plans were underway to renew the license. This was a private matter between the two parties, and could have stayed that way.

Yet the fact that something that people liked to watch was disappearing from YouTube prompted a bewildering public outcry. Bowie’s character was impugned, without evidence that Bowie disliked Hadfield’s use of the song, or that he wished it removed from view. In fact, the contrary is more conceivable, given the very positive coverage that followed the release of the video. At that time, Simon Usborne of The Independent wrote: “David Bowie champions Canadian astronaut Chris Hadfield’s ‘Space Oddity’ cover.” Over at the desk of The Telegraph, Neil McCormick wrote: “Chris Hadfield’s performance of David Bowie’s Space Oddity from space is another brilliant moment for one of the greatest comebacks in pop history.” It is quite possible that a future license is forthcoming. That we might have to wait to see the video again, should not be reason for a mass lament.

Moreover, inciting a public condemnation of copyright, on this issue, is not helpful to the larger goal of finding an appropriate balance between copyright holders and copyright users. That goal cannot be accomplished without goodwill on both sides of the negotiations. A mediating point is in the use of exceptions to copyright; exceptions allow unauthorized use of works, without having to wait for copyright’s term of protection to end. Exceptions ensure that the goal of copyright – to foster creativity – is not thwarted by the rights embedded within copyright.

Readers of this blog will know that the most prominent Canadian exception is fair dealing. With the amendments that came into force in 2012, fair dealing addresses unauthorized uses of copyrighted work for purposes of research, private study, criticism, review, news reporting, parody, satire or education, if the manner by which the use occurs is fair. As I have written before, such an evaluation is not as cryptic as it sounds; ten years ago the Supreme Court of Canada gave appropriate guidance. Since then, many people have worked very hard to educate our educators on the importance of using copyright and fair dealing appropriately. But copyright representatives still eye exceptions with askance, and try to roll back the support given to exceptions by both the Supreme Court of Canada and the Federal Government of Canada. In the hands of a copyright lobbyist, op-eds that illustrate a lack of respect for creators and denounce copyright, only facilitate arguments for a continued expanding of rights and diminishing of exceptions.

In its current incarnation, fair dealing is the most expansive it has ever been. However, it still does not offer clear protection to new creative work, when the artist has drawn vigorously from another copyrighted work. Creative endeavor will not always suit a predefined category (see sometimes art is just art). But, a new exception provided in 2012 – section 29.21, non-commercial user-generated content – covers some of this gap. “It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work … .” This exception plays a vital role in protecting Canadians who want to play with existing creations and explore their own potential for creativity via the possibilities that digital technology provides.

Naturally, conditions apply; fortunately, those conditions invoke an analysis very similar to evaluation of fair dealing. Given that some of Bowie’s lyrics were rewritten to suit Hadfield’s situation, it is plausible that Hadfield could have argued the legitimacy of using Bowie’s work without permission, if he had posted the video at a Canadian host. But it should not surprise anyone that a noted representative of Canada, and a musician in his own right, chose to engage with a musician of iconic status and work in cooperation.

Hadfield’s memoir, An Astronaut’s Guide to Life On Earth (2013) describes the team effort that went into making the video, with Bowie’s permission being integral to the project. The outcome was stunning, garnering 10 million views within the first three days and millions more over the following year. I hope that all viewers took note of the last scene of the video; the list of acknowledgements that concludes: “With special thanks to David Bowie, NASA, ROSCOSMOS and the CSA.”

Many are the occasions when it is incumbent to publicly complain about the excesses of copyright. But this was not one of them. Taking our cue from Chris Hadfield, “Thank You” would have been more appropriate.

Update — June 13  Making more music; Chris Hadfield with Emm Gryner.

Update — June 28  The Ottawa Citizen issues an apology to David Bowie (dated 20 June 2014).

 

 

 


Podcast: Firefox’s adoption of closed-source DRM breaks my heart

Here's a reading (MP3) of a my latest Guardian column, Firefox's adoption of closed-source DRM breaks my heart, a close analysis of the terrible news that Mozilla has opted to add closed source DRM to its flagship Firefox browser:

The decision to produce systems that treat internet users as untrusted adversaries to be controlled by their computers was clearly taken out of a sense of desperation and inevitability.

It’s clear that Mozilla plans to do everything it can to mitigate the harms from its DRM strategy and to attempt to reverse the trend that brought it to this pass.

Like many of Mozilla’s longtime supporters, I hold it to a high standard. It is not a for-profit. It’s a social enterprise with a mission to empower and free its users.

I understand that Apple, Microsoft and Google are for-profit entities that have demonstrated repeatedly that their profitability trumps their customers’ rights, and I fault them for this. But it’s not unreasonable to hold mission-driven nonprofits to a higher standard than their commercial counterparts.

Mozilla says it’s doing everything it can to reduce the harm from what it sees as an inevitable decision. As a Mozilla supporter, contributor and user, I want it to do more.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

Coming to SLC

I'm delighted to announced that I'll be the guest of honor at Salt Lake City's Westercon 67 this July -- Westercon being the annual convention for science fiction fandom west of the Mississippi. There's quite a fantastic roster of other guests as well! See you 44 days in SLC!

Makers: the Japanese fan-trans

Haruka Tsubota has undertaken a Japanese fan-translation of my novel Makers. It's available as Epub and Mobi, and licensed CC-BY-NC-SA. Here's the original book.

The FCC’s Important Step to Power Wireless Broadband

Google Public Policy BLOG - Fri, 2014/05/16 - 12:24
Posted by Aparna Sridhar, Google Policy Counsel
Today, the Federal Communications Commission took an important step toward powering tomorrow’s wireless broadband.  The FCC adopted new rules that will designate some spectrum--resources that, under the FCC’s plan, would not in any event be auctioned for wireless carriers’ broadband services--for unlicensed devices and applications on a shared basis.  
Unlicensed uses of spectrum are an important complement to carriers’ mobile broadband services.  For example, the Wi-Fi networks in homes, businesses, and coffee shops allow users to take data off the wireless carriers’ licensed networks, which enables faster service and reduces congestion on cellular systems.  For smartphones and tablets in particular, Cisco has found that daily data consumption over Wi-Fi is four times that of cellular.  Offloading data from cellular networks to Wi-Fi has saved mobile network operators billions of dollars in network deployment costs.  Faster and cheaper access to online services drives usage of those services and thus demand for all forms of network access, creating a virtuous cycle of investment.  Access to new, lower-frequency TV band spectrum could accelerate this process and create more unlicensed service options, allowing better indoor coverage and service in rural and underserved areas.  
The FCC’s plan allows television broadcasters to sell their spectrum rights voluntarily so they can be purchased by mobile operators.  This will enable more efficient spectrum use and spur economic growth.
The FCC had a challenge in designing its plan for an auction of TV broadcast spectrum, and we’re pleased that it is supporting both licensed and unlicensed uses.  While the plan doesn’t provide as much unlicensed spectrum as we recommended, it should provide just enough unlicensed spectrum to attract investments in equipment and operations in the new band.  Google will do its part to ensure that our Spectrum Database supports sharing of the newly allocated spectrum.
We’re grateful that Congressional supporters of unlicensed spectrum use have continued to back the FCC’s progress on this front. While there’s still a lot of work ahead to get the final details of the auction right, we look forward to working with all stakeholders to build the next generation of wireless technologies and see them deployed across America.

Competition Bureau Recommends New Regulations To Address Wireless Competition Concerns

Michael Geist Law RSS Feed - Fri, 2014/05/16 - 00:20
The Canadian Competition Bureau has filed a submission to the CRTC's wholesale mobile wireless services review in which it reaffirmed its view that the Canadian wireless market is uncompetitive and would benefit from regulation.  The Bureau finds that a more competitive market would deliver $1 billion annually in benefits to the Canadian economy:

incumbents appear to have the ability and incentive to profitably raise the rates they charge their retail competitors for wholesale roaming services, and potentially other wholesale arrangements, above competitive levels. The incumbents’ wholesale customers may be passing these price increases on to retail customers. These retail price increases may be harming competition in retail mobile wireless services markets in Canada. In particular, more competitive markets could deliver approximately $1 billion in benefits to the Canadian economy.



The submission, which includes a commissioned study on the Canadian market, also concludes that:
  • more customers are either leaving Canadian retail mobile wireless services markets or not entering these markets at all, than would have in a fully competitive marketplace.
  • Rogers and TELUS are generally earning above-normal returns on their mobile wireless investments
  • the CRTC has an opportunity to significantly increase the economic efficiency of the Canadian economy. Specifically, by taking steps to increase competition in wholesale mobile wireless services markets, the CRTC can improve consumer welfare by enhancing the affordability and variety of retail mobile wireless services in Canada.

In light of these findings, the Bureau recommends:

To achieve these significant gains, the CRTC should adopt measures to address the incentives for the incumbents to raise their retail competitors’ wholesale prices. Appropriate measures may include the introduction of competitive safeguards or mandated wholesale access, or targeted spectrum allocations towards non-incumbent carriers in upcoming auctions, which the Bureau may address further as additional evidence develops in this proceeding.

Last year, some commentators suggested that the Competition Bureau consider whether there is a wireless competition concern in Canada. The views of Canada's independent agency responsible for ensuring "that Canadian businesses and consumers prosper in a competitive and innovative marketplace" are now on the record and are unequivocal.  There is a wireless competition problem in Canada and regulation is needed to address it.

Has Canada Caved on Copyright Term Extension in the TPP?

Michael Geist Law RSS Feed - Fri, 2014/05/16 - 00:15
The Trans Pacific Partnership negotiations resume next week and while an agreement does not appear imminent, reports from Japan indicate that the copyright term issue may have been resolved.  Japan and Canada are two of several TPP countries whose term of copyright protection is life of the author plus 50 years. According to the Japan News, those countries (which also include New Zealand, Malaysia, Vietnam, and Brunei) are prepared to cave to U.S. pressure to extend the term of copyright to life of the author plus 70 years:

Among the 12 countries, Japan, Canada and four other countries protect an author's copyright for 50 years after their death, the United States and four other countries for 70 years and Mexico for 100 years. Following the agreement, Japan will extend its duration by 20 years.


If true, the extension represents a major loss for Canada and run counter to a government consultation that generated huge opposition on the issue. The extension in the term of copyright would mean no new works would enter the public domain in Canada until at least 2035 (assuming an agreement takes effect in 2015). â€¨Many important authors would be immediately affected since their works are scheduled to enter the public domain in the 2015 - 2035 period. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould as well as non-Canadians such as TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history.

Mozilla breaks our hearts, adds DRM to Firefox


For months, I've been following the story that the Mozilla project was set to add closed source Digital Rights Management technology to its free/open browser Firefox, and today they've made the announcement, which I've covered in depth for The Guardian. Mozilla made the decision out of fear that the organization would haemorrhage users and become irrelevant if it couldn't support Netflix, Hulu, BBC iPlayer, Amazon Video, and other services that only work in browsers that treat their users as untrustable adversaries.

They've gone to great -- even unprecedented -- lengths to minimize the ways in which this DRM can attack Firefox users. But I think there's more that they can, and should, do. I also am skeptical of their claim that it was DRM or irrelevance, though I think they were sincere in making it. I think they hate that it's come to this and that no one there is happy about it.

I could not be more heartsick at this turn of events.

We need to turn the tide on DRM, because there is no place in post-Snowden, post-Heartbleed world for technology that tries to hide things from its owners. DRM has special protection under the law that makes it a crime to tell people if there are flaws in their DRM-locked systems -- so every DRM system is potentially a reservoir of long-lived vulnerabilities that can be exploited by identity thieves, spies, and voyeurs.

It’s clear that Mozilla isn’t happy about this turn of events, and in our conversations, people there characterised it as something they’d been driven to by the entertainment companies and the complicity of the commercial browser vendors, who have enthusiastically sold out their users’ integrity and security.

Mitchell Baker, the executive chairwoman of the Mozilla Foundation and Mozilla Corporation, told me that “this is not a happy day for the web” and “it’s not in line with the values that we’re trying to build. This does not match our value set.”

But both she and Gal were adamant that they felt that they had no choice but to add DRM if they were going to continue Mozilla’s overall mission of keeping the web free and open.

I am sceptical about this claim. I don't doubt that it’s sincerely made, but I found the case for it weak. When I pressed Gal for evidence that without Netflix Firefox users would switch away, he cited the huge volume of internet traffic generated by Netflix streams.

There's no question that Netflix video and other video streams account for an appreciable slice of the internet’s overall traffic. But video streams are also the bulkiest files to transfer. That video streams use a lot of bytes isn't a surprise.

When a charitable nonprofit like Mozilla makes a shift as substantial as this one – installing closed-source software designed to treat computer users as untrusted adversaries – you’d expect there to be a data-driven research story behind it, meticulously documenting the proposition that without DRM irrelevance is inevitable. The large number of bytes being shifted by Netflix is a poor proxy for that detailed picture.

There are other ways in which Mozilla’s DRM is better for user freedom than its commercial competitors’. While the commercial browsers’ DRM assigns unique identifiers to users that can be used to spy on viewing habits across multiple video providers and sessions, the Mozilla DRM uses different identifiers for different services.

Firefox’s adoption of closed-source DRM breaks my heart

Why the Canadian Government Should Maintain Its Position on CETA and the ISDS Provision

Michael Geist Law RSS Feed - Tue, 2014/05/13 - 23:29
Media reports last week indicated that finalizing the Canada - European Union Trade Agreement has been delayed by a Canadian demand to exclude intellectual property from the scope of the investor-state dispute settlement system. While that sounds like an arcane, technical issue, it actually involves potentially billions of dollars and the Canadian government deserves kudos for adopting its current position even as the pressure builds to simply cave on the issue.

The investor-state dispute settlement provision is among the most controversial aspects of CETA (and the proposed Trans Pacific Partnership) since it opens the door to private lawsuits by companies against the government over the state of national law. These lawsuits can involve claims for hundreds of millions of dollars, with costs that may ultimately be borne by taxpayers. The Canadian government is keenly aware of the risks, since it is currently facing a $500 million lawsuit by pharmaceutical giant Eli Lilly over the approach of Canadian courts to the concept of utility in patent law. The Canadian government is likely to ultimately win the lawsuit, but the legal risks are still significant, with Eli Lilly effectively demanding that every Canadian pay it nearly $15 due to our patent laws. If Eli Lilly can file a $500 million lawsuit over two patented drugs, the potential for numerous lawsuits and billions in claims is a real possibility.


With the government slowly realizing that ISDS provisions open the door to a flurry of similar lawsuits, it is now trying to slam it shut on European-based lawsuits by excluding intellectual property from the scope of the provision.  That is the right policy - the CATO Institute recently argued that ISDS provisions don't belong in trade agreements altogether - and the Canadian government is taking the right position on CETA. ISDS provisions should be avoided and certainly should not extend to court rulings in intellectual property disputes. That is true for CETA and should also be the case for the Trans Pacific Partnership, which is still being negotiated.

Copyright Board Indicates It Will Not Include Mandatory Delete Rule in Tariff

Michael Geist Law RSS Feed - Tue, 2014/05/13 - 23:21
The Copyright Board of Canada has issued an order in the tariff proceedings with Access Copyright that indicates its preliminary view is that it will not support the collective's demand for a provision that would require deletion of digital copies made under a copying tariff where an institution stops relying on the tariff.  Access Copyright wants the following included:

[w]here the Licensee is no longer covered by a tariff for the making and distribution of Digital Copies, the Licensee shall immediately cease to use Digital Copies of Published Works in the Repertoire, delete from their hard drives, servers or storage area networks, and make reasonable efforts to delete from any other device or medium capable of storing Digital Copies, those Digital Copies and upon written request from Access Copyright shall certify  that it has done so.

The Board says its preliminary view is that it will not include such a requirement in the tariff.

Netflix Speed Rankings Raise Rogers Internet Traffic Management Questions: What Did It Know ...

Michael Geist Law RSS Feed - Mon, 2014/05/12 - 20:59
Netflix released its latest ISP Speed Index yesterday, including Canada for the first time.  Given the popularity of the online video service, the Netflix report has attracted increasing attention as it offers a comparative look at the average download speeds for Netflix customers across Internet providers around the world. While the company acknowledges that there are various factors that influence speed (including device used, video quality, etc.), those issues are found across all ISPs, so the comparisons remain valid.

Canada's performance is middling at best as the Netflix data indicates that we are a mid-tier country at best.  Canadian speeds that do not compare well with most European countries (note that Asian countries such as South Korea and Japan are not included but would likely rank far ahead of Canada as well). The biggest surprise in the report is how poorly Rogers ranked, coming in last among the 14 Canadian ISPs that were measured. The ranking is particularly surprising since the other large cable companies (Shaw, Videotron, Cogeco, and Eastlink) all ranked in the upper half of Canadian ISPs.


The poor ranking, which would have placed Rogers in last place in many other countries (Denmark, Finland, Ireland, the Netherlands, Norway, Sweden, the UK, and Uruguay) raises questions about Rogers' Internet traffic management practices.  In response to the Netflix story and some tweets on the issue, Rogers responded:

Netflix test done just before we virtually doubled Netflix capacity, we'll continue to add more capacity as required

I followed with a tweet raising questions about the meaning of doubling Netflix capacity and asking whether the company was throttling Netflix traffic. Rogers replied:

We don't throttle Netflix. We've doubled capacity in the links that carry traffic from Netflix to our customers.

While these responses are meant to be reassuring, they raise troubling questions about how Rogers manages its network and whether the slow Netflix speeds could have been used to create a competitive advantage for its own online video services. While the company says that it does not throttle Netflix traffic (ie. deliberately slow it down), its response also suggests that it knew that the service was being slowed by insufficient capacity.  I wrote about net neutrality in my weekly technology law column this week (Toronto Star version, homepage version) and the Rogers responses raise a host of related regulatory questions:
  • How long did it know that Netflix speeds were slow? 
  • Why are Netflix-specific links within the network the problem? 
  • Does Rogers separate Netflix traffic from other traffic? 
  • If so, why does it not disclose the practice? 
  • Is the slowing of video a violation of Section 36 of the Telecommunications Act, which the CRTC has said amounts to controlling the content? 
  • Are other online video services affected in the same manner?
  • Are Rogers online video services affected?

The Netflix rankings are presumably designed to provide greater transparency on actual ISP speeds.  Now that we have Canadian data, we need some answers from one of Canada's largest ISPs on why it ranked so badly.

Appointment of New Copyright Board of Canada Chair Offers Chance for Change

Michael Geist Law RSS Feed - Thu, 2014/05/08 - 02:44
Copyright Board of Canada chair William J. Vancise will see his term come to an end this month, opening the door for the government to start the process of reforming the much-criticized board. Vancise has served the maximum two terms as chair, with his time marked by the Supreme Court of Canada's rejection of the board's approach to fair dealing, ongoing frustration from stakeholders about board administrative processes, and the failure of the board to broaden its approach by becoming more inclusive of the public.

The exclusion of the public stands in sharp contrast to the CRTC and Competition Bureau, which have both taken steps in recent years to involve the public more directly in policy making activities, hearings, and other issues. By contrast, the Copyright Board does little to encourage public participation, despite the fact that its decision often have an impact that extends beyond the parties before it. When asked recently about the accessibility and participation concerns, the board pointed to an internal working group as evidence that it regularly reviews its practices and compared itself to the Federal Court of Appeal, noting that "of course they [the public] don't participate, because they don't really belong there, per se."


The problems with the current Copyright Board run even deeper than having its core decisions overturned by the Supreme Court and the public finding itself largely excluded from the process. The business community - particularly those seeking to develop new, digital business models - point to the board as a major problem. For example, Songza recently told the Standing Committee on Canadian Heritage:

Why is Canada behind the U.S. and other countries in the development of music streaming services? One reason is that the regulatory framework in Canada doesn't foster innovation. The rate-setting process - through the Copyright Board - takes far too long, up to four to five years for an industry where business models are changing rapidly.

It's hard to build a business model without certainty as to how much you have to pay for the main inputs to your business. This certainly holds true for investors investing in these businesses. That's why Songza came to an agreement with Re:Sound - the organization that represents recording musicians and record companies - that allowed Songza to launch in Canada with certainty on those rates, without having to wait years for a decision from the Copyright Board.

Similarly, Nettwerk Music Group, one of Canada's most successful independent music labels, told the committee:

Many streaming service providers are choosing to stay out of Canada given the uncertainty created by the length of time it takes for tariff decisions. So to echo Victoria Shepherd of Connect Music Licensing, 'The Copyright Board should not be seen as a barrier to business or as an impediment. Rather it should be considered a business development office. It needs the resources to ensure it can render decisions in lockstep with the pace of technology innovation.' Without the improvements to the Copyright Board, we are simply not realizing the full potentials of the dollars we're all investing.

As I noted over a year ago, many believe the Copyright Board of Canada is broken. The government hasn't paid much attention, but a starting point for addressing the concerns may come with the appointment of a new chair and the potential it brings to establish new policy and governance priorities.

Why Public Safety Minister Blaney Gets It Wrong on Privacy and Warrantless Disclosures

Michael Geist Law RSS Feed - Wed, 2014/05/07 - 02:23
The House of Commons engaged in active debate on privacy this week, spurred by an NDP motion from MP Charmaine Borg. The motion reads:

That, in the opinion of the House, the government should follow the advice of the Privacy Commissioner and make public the number of warrantless disclosures made by telecommunications companies at the request of federal departments and agencies; and immediately close the loophole that has allowed the indiscriminate disclosure of the personal information of law-abiding Canadians without a warrant.

The government voted down the motion on Tuesday, but the Monday debate provided new insights into the government's thinking on privacy. Unfortunately, most of its responses to concerns about warrantless disclosures were either wrong or misleading. In particular, Steven Blaney, the Minister of Public Safety, raised at least four issues in his opening response that do not withstand closer scrutiny.


First, he says:

Only the most basic information, such as the name and phone number, may be released. In all cases, this is done voluntarily, meaning that a company could decide not to co-operate at any time if it did not feel a certain request met the expectations of its customers.

In fact, the voluntary disclosure provision in PIPEDA is not limited to basic information. PIPEDA features several exceptions to disclosure without consent (including disclosures made pursuant to a court order), including:

an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or
(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

While some providers may limit their warrantless disclosures to basic subscriber information, this statute does not contain that limitation. When asked about their practices, providers such as Shaw merely state that they "rely on the standards and definitions set out in the Personal Information Protection and Electronic Documents Act".  Similarly, MTS Allstream states that "does not release customer information unless permitted or required by law, such as a valid law enforcement demand."

Second, even Blaney's claim of "basic subscriber information" is incomplete. The so-called basic subscriber information also includes IP addresses, data that is not found in any typical directory. Last year, the Privacy Commissioner of Canada released a study that found that an IP address that can be highly revealing. The study concluded:

Referring to such data as being on par with what one would find in the white pages of a phone book grossly misconstrues and underestimates what can ultimately be gleaned from such information. As such, it is truly more than just "phone book" information.

Third, Blaney emphasizes the voluntary nature of the disclosures:

Let me be clear. What we are talking about today is voluntary disclosure by private businesses to law enforcement.

What Blaney does not say is that the government is seeking to expand the frequency of voluntary disclosure. Bill C-13, the lawful access bill, will expand warrantless disclosure of subscriber information to law enforcement by including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant.

Fourth, the government is also seeking to expand the scope of voluntary disclosure. Bill S-4, the Digital Privacy Act, proposes extending the ability to disclose subscriber information without a warrant from law enforcement to private sector organizations. The bill includes a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law.  This despite the fact that Roxanne James, the Parliamentary Secretary to the Minister of Public Safety, later states in the debate:

We expect that telecommunication service providers only release basic subscriber information when it is for reasons of public good, such as to help police investigating a crime or, for example, identifying the next of kin.

Given the provisions in Bill S-4, the government's expectations are that warrantless disclosures will increase in the future. In fact, there are other responses from government MPs that are similarly problematic, including attempts to equate government requests for subscriber information with collection of information by Internet companies and an absurd claim that if the Privacy Commissioner had found any of 1.2 million requests out of line, she would have said so.

The NDP motion should not have been particularly controversial. If the information being disclosed is as innocuous as the the government maintains, disclosing aggregate data should not pose any concerns. Indeed, there are many steps that should be taken (including government and telecom transparency reports, notifications to subscribers of disclosures, reforms to Bills C-13 and S-4, and regular audits by the Privacy Commissioner of Canada) that would better address the balance of privacy with maintaining public safety.  Unfortunately, the government's current position is to respond with assurances that fail to address public concern over their privacy.

Why Isn't the Government Backing the CRTC on the Wireless Code? [Update: They Are Now]

Michael Geist Law RSS Feed - Wed, 2014/05/07 - 02:00

Update 5/7/14: Government reverses course and announces it will back up the CRTC in court.

The Canadian Press reports that the federal government appears ready to walk away from the CRTC's proposed enforcement of the new consumer wireless code.  While the government has touted the code as an example of a pro-consumer approach, the CRTC's attempt to ensure the code applied as quickly as possible may be lost due to the government's decision to stay out of a legal battle over the issue. With the major telcos looking to limit the power of the CRTC and a federal court ruling that the Commission cannot advocate for itself, it falls to the federal government to do so. 


The issue was raised yesterday in the House of Commons, yet the government refused to respond directly:


Mr. Glenn Thibeault (Sudbury, NDP): 

Mr. Speaker, while the Conservatives claim credit for the CRTC's wireless code of conduct as their policy, Canadians continue to be hit in the pocketbook waiting for action. The NDP has been pushing for this code since the beginning, but now, as the code of conduct is being challenged by the big three in court, the current government has simply walked away from it. The Conservatives keep spending millions in advertisement to tell Canadians how great their not-so-original idea is. Why are the Conservatives not putting their efforts into defending the code of conduct instead of boasting about it while it is being struck down?

Mr. Paul Calandra (Parliamentary Secretary to the Prime Minister and for Intergovernmental Affairs, CPC):  

Mr. Speaker, of course, this government has done extraordinary work with respect to our telecom policy. In fact, competition has increased. At the same time, wireless rates have come down by 20% while employment in this sector has actually increased by some 25%. That is good news for all Canadians. It is something that has been a priority for us. Putting more money back in the pockets of hard-working Canadians will remain a priority of this government, and we are proud of that.

Calandra was asked one more time abut the issue and again responded with talking points, rather than providing an answer about the government's decision not to defend the CRTC and the code.  It is worth asking the question again - why isn't the government backing the CRTC and the code?
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