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In this series on Bitcoin and game theory, I’ve argued that Bitcoin’s stability is fundamentally a game-theoretic proposition and shown how we’ve had blind spots for years in our theoretical understanding of mining strategy. In this post, I’ll get to the question of the discrepancy between theory and practice. As I pointed out, even though […]
Nobody’s Perfect: Leaked Contract Reveals Sony Requires Netflix To Geo-Block But Acknowledges Technology Is Imperfect
The Wikileaks release of tens of thousands of Sony documents includes revelations about opposition to the copyright treaty for the blind, political fundraising, concerns about fair use in treaties, strategies to fund screening rooms in embassies to create a stronger will to protect studio interests, and personal calls to Prime Ministers (UK Prime Minister Cameron in this case) regarding the copyright law. The documents also show that Sony lobbied Netflix to stop Australian users from using VPNs to access the service. Yet it would appear that Sony’s own licence terms with Netflix opens the door to general VPN use.
The documents also include a stunning array of commercial documents, including licensing agreements with broadcasters and online video services around the world. A general search for Canadian documents immediately uncovered parts of the licensing agreement between Sony and Netflix, including the content protection requirements and obligations. Netflix is unsurprisingly requirement to encrypt all programs, use only pre-approved digital rights management systems, and meet various technical requirements. Of great interest to many Netflix subscribers, particularly those that try to access U.S. Netflix, are the requirements related to geographic filtering. The provision states:
The provision confirms several things. First, Hollywood studios are requiring Netflix to use geo-filtering technologies. Those technologies must be regularly updated and try to detect VPN services. It is notable that detecting VPNs or web proxies that avoid geo-identification are limited to those that “have been created for the primary intent of bypassing geo-restrictions.” That may explain why Netflix would focus on VPN services that market themselves as primarily allowing for access to U.S. Netflix, while not stopping general VPN services that are used for a wide range of purposes, including protecting personal privacy.
Second, the provision does not include other geographic measures, such as credit card confirmation to a specific country (as is used in other Sony agreements). This may reflect the fact that users are entitled to access the service while traveling and may access U.S. Netflix while in the U.S. The service therefore restricts based on where a user is located when accessing the service, not where they reside.
Third, there is a provision that acknowledges that the geolocation technologies can be circumvented by “highly proficient and determined individuals or organizations.” These terms do not appear to be defined, which may create sufficient flexibility to allow Netflix to argue that it meets Sony’s contractual requirements on geo-filtering but that the Hollywood studio itself has acknowledged the imperfections of the technology which can be circumvented.
Two recent law review articles, both responding to the July 2012 release of the Supreme Court of Canada's "pentalogy" of decisions on copyright, take somewhat opposite views of the relationship of the Court's decision to Canadian copyright history.
Professor Ysolde Gendreau of Université de Montréal's law school argues that Canadian copyright law, leading up to the Court's decision, lacked a statement of a broad purpose or philosophy of Canadian copyright. There was, for example, no statement in the preamble to the Canadian Copyright Act outlining the act's overall purpose. It also lacked an "historical mystique" that would lend an historical purpose to Canadian copyright, the way that, for example, the storied history of the French authors' rights movement lends understanding to the interpretation of French copyright today. Given this absence, the Court strode into the void and fashioned for Canadians a purpose that placed users' rights on a similar level with authors' rights in Canadian copyright law--a step that Gendreau believes has "no textual foundation."
Professor Myra Tawfik of the University of Windsor's law school argues, on the other hand, that the Court, rather than taking a wrong turn in the absence of clear directional purpose, "demonstrates a depth of understanding of, and a confidence in, Canada's own particular copyright story"--a story that is very different from those of countries like France, the US, or the UK. Tawfik argues that the Court now finds itself not in a relative void, but rather in the midst of a fairly developed area of Canadian law: "Canadian copyright law is sufficiently well developed and internally coherent to stand on its own merits."
Both authors note that the literature on the "historical mystique" of Canadian copyright is beginning to appear; they cite my book, The Struggle for Canadian Copyright, Eli McLaren's Dominion and Agency, and Pierre-Emmanuel Moyse's "The Colonies Strike Back" chapter as offering some of the history of Canadian copyright.
In my view, Professor Tawfik's view is correct. The Court's view of the purpose of Canadian copyright law, which places users' rights on a similar footing to those of authors, reflects longstanding concerns in Canadian copyright history with the accessibility of books, their affordability, and also with developing Canadian creative industries and encouraging Canadian creativity. The developing range of literature on Canadian copyright history reflects this.
1. Gendreau, Ysolde. "Recent Canadian Development: Fair Dealing: Canada Holds to its Position." J. Copyright Soc'y 60 (2013): 673-673.
2. Tawfik, Myra J. "The Supreme Court of Canada and the" Fair Dealing Trilogy": Elaborating a Doctrine of User Rights under Canadian Copyright Law." Alberta L. Rev. 51 (2013): 191-201.
Holocaust Remembrance Day (Yom HaShoah) starts tonight with events planned around the world. Last year, my daughter Jordan participated in the March of the Living, an annual event that brings thousands of people from around the world to the concentration camps in Poland. The experience had a profound effect and since her return she has become increasingly active within the March of the Living organization including joining the Ottawa board of directors. As part of tonight’s Holocaust remembrance event in Ottawa, she was asked to create a video to commemorate last year’s trip including interviews with participants, pictures, and video. She spent hours interviewing 18 participants on their experience and worked through hundreds of photos and hours of video to create a five-minute snapshot.
Last week, she posted the video to YouTube in anticipation of tonight’s event. Within hours, she received a message from the event organizer’s wondering why so few interviews appeared on the video. When she looked into the issue, she found that YouTube had muted the audio track with interviews after a couple of minutes (at 2:14 to be precise). The reason? The video includes some copyrighted background music. YouTube’s approach when it matches audio to a copyrighted work is to mute the non-music track, though it provides an option to fill out a fair dealing/fair use claim. Jordan did that, pointing out that Section 29.21 of the Canadian Copyright Act provides specific protection for non-commercial user generated content. The provision states:
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 or other subject-matter in which copyright subsists and for the individual – or, with the individual’s authorization, a member of their household – to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
As of this morning, YouTube had not reinserted the audio track and Jordan spent many more hours creating a new version with different music.
The March of the Living video is precisely the kind of work that this provision is designed to cover: a non-commercial work with no substantial adverse effect on the work incorporated into the user-generated content. Yet more than two years after the provision took effect, YouTube and other online video providers have not adjusted their services to account for the Canadian law. In fact, a review of online video and social media sites finds that no one seems to account for the law within their terms and conditions or stated copyright policy.
During the copyright reform process, the non-commercial user generated content provision was cited as an innovative, “made-in-Canada” rule that provides legal protection for new creative works and the websites that host them. During committee hearings, Google said:
Bill C-11′s protections for non-commercial, user-generated content will be important to creative communities in Canada. They allow creators to continue to confidently share their creations online with the world, and help foster the next generation of commercial successes.
Government MPs lauded the provision:
This exception recognizes that these new uses of creative content contribute to Canada’s cultural sector. For example, these uses can enhance interest in the original when videos of user-generated content go viral on the Internet. This innovative form of creation can also shed light on emerging talent from across our country and showcase it to the rest of the world. Of course the digital age does not just offer opportunities for creation; it also offers many unique opportunities for learning and education.
The decision by online video providers and social media sites to largely ignore the provision means lawful Canadian works will be muted or taken down contrary to the policy established by the government. There is no reason that online video providers can’t incorporate Canadian law into their service for their Canadian users by asking for affirmation that the work conforms to the provision upon posting (thereby creating a default that the work is lawful) or by creating a response mechanism that is consistent with user rights protections contained in Canadian copyright law.
The post Canada’s Non-Commercial Copyright Fail: Why Did YouTube Mute a Holocaust Memorial Video? appeared first on Michael Geist.
On Apr 14 2015, the Virginia State Board of Elections immediately decertified use of the AVS WinVote touchscreen Direct Recording Electronic (DRE) voting machine. This seems pretty minor, but it received a tremendous amount of pushback from some local election officials. In this post, I’ll explain how we got to that point, and what the […]
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