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Gutting Net Neutrality also guts innovation, fairness and democracy

My latest Guardian column, Internet service providers charging for premium access hold us all to ransom, explains what's at stake now that the FCC is prepared to let ISPs charge services for "premium" access to its subscribers. It's pretty much the worst Internet policy imaginable, an anti-innovation, anti-democratic, anti-justice hand-grenade lobbed by telcos who shout "free market" while they are the beneficiaries of the most extreme industrial government handouts imaginable.

The FCC promised a fix, and here it is: FCC chairman Tom Wheeler, an Obama appointee and former cable lobbyist, has drawn up rules to allow ISPs to decide which communications you can see in a timely, best-effort fashion and which services will be also-ran laggards. In so doing, Chairman Wheeler sets the stage for a further magnification of the distorting influence of money and incumbency on our wider society. Political candidates whose message is popular, but who lack the budget to bribe every ISP to deliver it in a timely fashion, will be less equipped to reach voters than their better-financed rivals. A recent study looked at 20 years' worth of US policy outcomes and found that they exclusively responded to the needs of the richest 10% of Americans. Now the FCC is proposing to cook the process further, so that the ability of the ignored 90% to talk to one another, network and organise and support organisations that support their interests will be contingent on their ability to out-compete the already advantaged elite interests in the race to bribe carriers for "premium" coverage.

If you think of a business idea that's better than any that have come before – if you're ready to do to Google what Google did to Altavista; if you're ready to do to the iPod what the iPod did to the Walkman; if you're ready to do to Netflix what Netflix did to cable TV – you have to start out with a bribery warchest that beats out the firms that clawed their way to the top back when there was a fairer playing-field.

The FCC and its apologists will shrug and say that the ISPs are businesses and they own their lines and can do what they want with them. They'll say that we can't expect the carriers to invest in next-generation networks if they can't maximise their profits from them.

But this is nonsense. The big US carriers are already deriving bumper profits from their ISP business, while their shareholder disclosures show that they're making only the most cursory investment in new network infrastructure (Americans have been waiting for fast "fiber-to-the-kerb" connectivity for decades, mostly what they're getting is "fiber-to-the-press-release" puff pieces from ISPs who gull uncritical reporters into repeating their empty promises of fast networks, just around the corner).

Internet service providers charging for premium access hold us all to ransom [Cory Doctorow/The Guardian]

(Image: Evidence A: The Ransom Note, Jared and Corin, CC-BY)

will no one take on Disney?

Fair Duty by Meera Nair - Fri, 2014/04/25 - 00:42

Earlier this week, Alex Tabarrok posted “Copyright is out of Control,” at Marginal Revolution. Tabarrok describes a situation whereby an established publisher is wary of using public domain images in books, as the status of public domain does not guarantee an absence of trouble-making from would-be plaintiffs. Tabarrok also describes an inability to use a licensed image:

To illustrate the point that, contrary to what is often argued, a rich person might get more from another dollar than a poor person we have in “Modern Principles a movie still of Scrooge McDuck swimming in money. We think the image speaks for itself but apparently that is a problem. The rights to the photo are–we are told–not the same as the rights to the characters shown within the photo. Thus, even though we have bought and paid for the right to print the photo, to ensure that the use of the characters within the photo falls under fair use we must discuss, comment on and critique the content of the photo in the text.

Tabarrok’s dismal conclusion is:

I am not critiquing our publisher or their lawyers. Bear in mind that this is coming to us from the very highest legal counsel of a multi-billion dollar firm. Thus, I do not doubt that the dangers are real and the legal analysis acute. The problem is copyright law itself.

The reaction to the piece is a quagmire of outrage and confusion, with some commentators protesting the very spectre of a prominent scholar flogging a $250 textbook, and yet wanting free use of an image. Again – according to Tabarrok’s post – the authors’ publisher had purchased a license to use the image. While the industry of educational publishing as a whole leaves much to be desired, what I find more than troubling about this piece is the impression, or lack thereof, it leaves of fair use. Quite likely, there are more details that Tabarrok was unable to include in the post, but clarification is needed.

An outsider reading the post may come away with the view that fair use is not something that is legitimate under appropriate circumstances, but rather a disputed corollary to purchasing a license for re-use of content. Such an interpretation, while no doubt pleasing to many copyright holders and their representatives, would be plain wrong.

Fair use is an exception to each grant of copyright; fair use allows for the use of copyrighted material without seeking authorization from, or making payment to, the copyright holder. The extent of what might be fair use is determined according to the circumstances at hand. Without further information, I can only assume that the extreme timidity of the publisher and its counsel is due to the association of McScrooge Duck to the Disney Corporation.

As fair use is only of issue if no license was obtained, consider a hypothetical situation where no license for use of the McScrooge Duck still was purchased. Would Tabarrok and his colleagues have a plausible argument for fair use in the inclusion of this still in their textbook? Case law suggests they would.

The following analysis draws primarily from the U.S. Supreme Court decision Campbell v. Acuff–Rose Music, Inc. (1994) and Appeals Courts’ decisions Bill Graham Archives v. Dorling Kindersley Ltd. (Second Circuit, 2006), Cariou v. Prince, (Second Circuit, 2013) and Dereck Seltzer v. Green Day Inc. (Ninth Circuit, 2013). For the sake of brevity, I have omitted citations.

Fair Use Analysis

According to Section 107:

… In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

In this hypothetical situation, a reasoned argument for fair use might include the following:

(1) purpose and character of the use

The reference to commercial or non-profit is of little concern in this instance. Courts have noted that the “crux of this distinction” lies in whether the party using the copyrighted material profits from the use. In this case, the image is hidden within the textbook; it does not serve as an advertisement for the book. Even if students are aware that the book includes such an image; it is unlikely that they would purchase the book purely on that basis.

Moreover, the fact that the publisher is a commercial entity is not a bar to a finding of fair use. The prevailing principle of the exception is the principle that guides the system of copyright as a whole; namely, does it further the progress of the Arts and Sciences, as specified in the U.S. Constitution? To answer that question, in terms of the first factor, greater weight has to be afforded to:  “the purpose and character of the use.”

The notion of transformative use is fast becoming a guide to any examination of the purpose and character of a work. As courts have grappled with balancing the rights of copyright owners versus those of copyright users, the notion of transformation has been given both precision and latitude. The prevailing language asks the question: “whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message?”

In this situation, the use of the still is not for the purposes of entertainment. (Nor is it to serve as the basis for appropriation art; nor is it necessary that textbook authors comment upon McScrooge Duck.) The photograph is engaged for a new purpose – that of resonating with a reader’s baser instincts concerning money.

Disney characters are ubiquitous to the modern world; even in its poorest corners, the duck, the mouse, the dog, etc. are recognizable. Appealing to symbols that are embedded in peoples’ childhood experiences is a means to invoking underlying thoughts. While some might favour a quotation of text to accomplish that task, visual imagery is equally eligible to that favour. Indeed, the corporate sector takes great pains to make images and stories they own, integral to everyday experience. Yet they too rely on past creations. In fact, this particular still might be unique to the purpose sought; the nomenclature of McScrooge Duck is directly traceable to Charles Dicken’s character of Ebeneezer Scrooge. Thus, this still does double-duty in its evocation of a miserly tycoon.

(2) nature of the copyrighted work

It has been suggested that the more creative a work is, the higher the standard needed for fair use to prevail. That the still image is a creative work, and thus deserving of protection, is without doubt. But mitigating this aspect is the extent to which the work has been published. The character of McScrooge was first published in 1947. (As an aside, it was created by Carl Barks and licensed to the Disney Corporation. Throughout this discussion, both the real and the hypothetical, it has been assumed that Disney has the exclusive license to all imagery of the character. But if use of the still was actually challenged by Disney, it would have to prove that ownership.) Published many times over in comic book and audio-visual genres, McScrooge’s copyright owner has controlled first publication. This tends to favour a later fair use.

(3) the amount and substantiality of the copyrighted work used

There is no doubt that the entire still has been used. But as multiple cases have emphasized, while no court has ever indicated that copying an entire work would sanction fair use, courts have recognized that sometimes such copying is necessary to make fair use of a work. The amount permissible is a consequence of what the work is and what the use is. Images fall within this category of necessarily-complete copies. While novels, lyrics, or perhaps even poems, may be divisible into representative snippets, images do not lend themselves to meaningful divisibility.

Moreover, the manner by which the entire image is incorporated into the book is likely to be different from the original form of the still. Textbooks will not devote large areas to glossy reproductions of an image; usually an image is reproduced in a small size and with lesser resolution.

(4) the effect of the use

In fair use’s darker days, the impact on market was given unduly wide interpretation and prominence. Any use was deemed an impact on the market and negated fair use as a whole. Fortunately, American courts have since recognized the circularity of those earlier pronouncements. A more nuanced approach of contemporary courts has led to the conclusion: “Where the allegedly infringing use does not substitute for the original and serves a ‘different market function,’ such factor weighs in favor of fair use.” As noted earlier, the manner by which the still is reproduced in a book will not physically serve the market for stills. That the still is being employed to serve a transformative use, indicates a different market function.

And perhaps most crucial; the fact that the publisher in this instance has been willing to pay for licensed content in the past does not negate its ability to practice fair use in the future.

Beyond analysis

With a more than reasonable claim to fair use, it might seem a mystery as to why any legal counsel to such a well-heeled publisher should reject using the still. But it may not be that mysterious. Academic presses are not well-known as advocates for better use of exceptions within the law, or preventing abuse by the law. And if a lawyer has been charged to protect the wellbeing of such a client, doing nothing with licensed content or avoiding any seemingly-precarious involvement of fair use, might seem the optimal strategy.

But this conduct is deleterious to the well-being of a larger constituency, namely all those who would seek to make legitimate use of copyrighted material. The viability of the exception is bolstered when people use it, and diminished when the exception is passed over in favour of unnecessary licensing or passive acquiescence to those who would like nothing better than effectively absolute control in the name of copyright.

Few authors or publishers could withstand even the hint of a copyright lawsuit. But surely a “multi-billion” dollar publishing house with expert legal counsel and highly respected authors under its wing could engage in fair use as appropriate to their business undertakings.






New FCC Rules Will Boost Wireless Broadband

Google Public Policy BLOG - Wed, 2014/04/23 - 14:59
Posted by Milo Medin, Vice President of Access Services
Earlier today, the Federal Communications Commission adopted proposed rules that -- if finalized later this year as planned -- will implement a 2012 recommendation of the President’s Council of Advisors on Science and Technology (PCAST) and put spectrum to better use for broadband.  The proposed rules include some of the most forward-thinking spectrum policy anywhere in the world, and the FCC should be commended for moving aggressively towards implementation.
The key idea is that modern database technologies will allow commercial use of spectrum that historically has been dedicated to federal purposes, when and where the government doesn’t have immediate need for it.  Additionally, this new model allows flexible commercial use of the spectrum, where the database can mediate between protected operations like cellular LTE, and unprotected operations (which could be WiFi-type devices), without the government having to pick one or the other.  
The government will also benefit from having commercial devices in their bands.  Federal users will be able to buy lower-cost and higher-performance equipment based on consumer smartphone technologies.  It’s a win-win approach that lets government agencies continue to use their spectrum and take advantage of the commercial ecosystem, while also helping meet the growing demand for mobile broadband and device connectivity.  
Google has long advocated for more efficient use of spectrum through sharing technologies.  We operate an FCC-approved Spectrum Database that enables the use of vacant TV broadcast channels for wireless broadband.  And, we’ve built a prototype Spectrum Access System that is in use at our headquarters in Mountain View, California.  We believe spectrum sharing can unlock huge consumer benefits compared with traditional approaches of clearing existing users to make way for new ones, which can take as long as a decade to implement when it is possible at all.
It also is important that the FCC continue pushing hard to allow flexible use of spectrum in multiple bands. Different radio frequencies are suited to different applications.  For instance, the 600 MHz TV broadcast spectrum that Congress designated for voluntary recovery is especially useful for longer range services that provide excellent coverage, while higher frequencies (like the 3550 MHz band that’s at issue in today’s FCC rules) are ideal for quickly and affordably scaling up capacity in densely populated areas.  In these bands and others, federal policy should maximize the availability of spectrum that’s usable for broadband under a variety of business models.
Google welcomes the new FCC rules as a major step forward.  We’re committed to continue to work with the FCC and other federal agencies to make shared commercial access a reality, while ensuring federal operations are safeguarded.

Government Buries Massive Trademark Overhaul in Budget Implementation Bill

Michael Geist Law RSS Feed - Wed, 2014/04/23 - 03:47
It started innocuously enough with the House of Commons Committee on Industry, Science and Technology releasing its long-awaited report on intellectual property in Canada in March 2013. The report included a recommendation that Canada ratify several international patent and trademark treaties, which came as a surprise (particularly to opposition members of parliament) since no witness had raised the issue before the committee.  

Within weeks, the government accepted the recommendation and one year later it moved to ratify the treaties with scant debate or discussion. Yet the ratification of five intellectual property treaties about which few Canadians have ever heard and that seem certain to increase fees for business was only the start.

Indeed, earlier this month, the government quietly included provisions in the budget implementation bill that will radically overhaul Canadian trademark law. My weekly technology law column (Toronto Star version, homepage version) notes those changes have not been subject to any serious debate, discussion or public consultation.  

Unlike copyright and patent laws, which are focused on striking a policy balance between access and protection, the primary purpose of trademark law is consumer protection. Since consumers often rely on trademarks as an easy means of identifying a product or service (prominent examples include the Nike swoosh or McDonald's golden arches), trademark protection helps limit confusion and potential consumer harm.

Given the link between trademarks and consumer protection, it should come as little surprise to find that a key requirement for trademark protection is "use" of the mark. If a company is not using the trademark, there is little risk of confusion and therefore no need for protection.

Legal cases dating back more than one hundred years have long emphasized the importance of use in order to properly register a trademark. A recent Supreme Court of Canada decision confirmed that "while the Trade-marks Act provides additional rights to a registered trade-mark holder than were available at common law, registration is only available once the right to the trade-mark has been established by use."

Despite the long legal history requiring use, the Canadian government is planning to drop the need for use in order to register trademark. If the provisions in the budget implementation bill are enacted, trademarks will be available to signs (which the law says includes everything from words and names to sounds and smells) that are either used or proposed to be used.  

The trademark law community has reacted with alarm to the planned changes.

Experts note that the change may be unconstitutional because a system no longer based on use may unduly encroach on property and civil rights, which falls under provincial jurisdiction. Moreover, many believe that the changes will result in sharply increased costs for Canadian business since the reforms will create considerable legal uncertainty, likely causing a spike in challenges to proposed trademarks.  

The reforms also seem to open the door to "trademark trolls", who could scoop up dozens of unused, proposed trademarks with plans to pressure legitimate businesses to pay up in order to release the trademarks for actual use.

With some in the intellectual property community warning that "instead of simplifying steps for businesses, the Bill proposes a much less useful Register, higher investigation costs, and shifts the onus to police over-reaching to businesses, as opposed to the Trademarks Office", Industry Minister James Moore has surprisingly succeeded in proposing changes that are both anti-business and anti-consumer.  That may be a boon for a few lawyers, but the business community has been left wondering how trademark reforms that no one seems to have requested found their way into a budget implementation bill.

Video: Bart Gellman and me opening for Ed Snowden at SXSW

Last month, Barton Gellman and I opened for Edward Snowden's first-ever public appearance, at the SXSW conference in Austin. The kind folks at SXSW have put the video online (the Snowden video itself was already up). I think we did a good job of framing the big questions raised by the Snowden leaks.

Access Copyright Urges Copyright Board to Ignore Bill C-11's Expansion of Fair Dealing

Michael Geist Law RSS Feed - Thu, 2014/04/17 - 00:24
As I noted in a post yesterday, Access Copyright has filed its response to the Copyright Board of Canada's series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. Yesterday's post focused on how Access Copyright has urged the Copyright Board to ignore the Supreme Court of Canada's ruling on the relevance of licences to a fair dealing analysis. Today's post examines the collective's response to the Copyright Board's question on the effect of the fair dealing legislative change in Bill C-32/C-11. Access Copyright engages in revisionist history as it seeks to hide its extensive lobbying campaign that warned that the reforms would permit mass copying without compensation.

For two years during the debates over the bill, Access Copyright stood as the most vocal opponent of the expansion of the fair dealing purposes to include education. Given its frequent public comments and lobbying efforts on the bill, one would think its response to the Copyright Board, would be pretty straight-forward. For example, it created a copyright reform website - CopyrightGetitRight.ca - that warned:

the education exception will permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers who invested their creativity, skill, money and effort to produce this content.

In the 2010 digital economy consultation, Access Copyright told the government much the same thing:

New exceptions, which create a sudden increase in uncompensated uses of works, will result in significant lost sales and millions of dollars in revenue losses to Canadian content owners from collective licences alone.

Maureen Cavan, then the executive director of Access Copyright said:

Schools won’t have to pay to make reproductions of textbooks and other materials developed to meet the requirements of provincial curricula...the education exceptions may permit mass, high-volume copying (equivalent to millions of books every year) without compensation to the creators and publishers who invested their creativity, skill, money and effort to produce this content.

Access Copyright was asked during the Bill C-32 committee hearings to specify the likely cost.  Roanie Levy, the current Access Copyright executive director, responded:

Based on our study, we believe that about $60 million is at risk as a result of the scope of fair dealing in the education sector, as well as other education-related exemptions provided for in Bill C-32. This is revenue that COPIBEC and Access Copyright collects today for the copying of a chapter here, a page there, for the distribution of works in class, for the use of works in exams. It also includes the royalties that certain film distributors collect from the education sector.
So we're talking about a minimum of $60 million at risk, but you also have to consider that, when a use or reproduction becomes free of charge, an increase in that type of reproduction follows. There will also be a revenue shortfall that will be more difficult to quantify as a result of a decline in sales of texts intended for schools.

Unequivocal positions, which the government rejected by adding education as a fair dealing purpose with no limitations or restrictions. 

Yet when Access Copyright is now asked about the effect of the change, it claims that the legislative change that it once warned would cost $60 million was not a change at all. Instead, its response to the Copyright Board is that the legislative change did not change the law but rather codified the existing law as expressed in the Supreme Court of Canada fair dealing decisions. For example, its response includes the following:

In effect, the majority of the Supreme Court of Canada jurisprudentially expanded the meaning to be afforded "research" and "private study" to include instruction. This decision expanded what was once understood to be limited allowable purposes of private study and research to include copying performed for the purpose of instruction or education. This expansion of the allowable fair dealing purposes was later codified in the amendments to section 29 of the Act. The coming into force of the statutory amendment in November 2012 did not serve to further expand fair dealing because the Supreme Court of Canada had already interpreted the exception as including that purpose. Simply put, and contrary to the apparent position taken by a number of educational users that the legislative amendments further expanded fair dealing in education, the legislative inclusion of education as an express allowable fair dealing purpose simply now accords with the jurisprudence.

There are at least two obvious problems with Access Copyright's attempt to revise history.  The first is its record - in the media, in lobbying campaigns, and before Parliament - that the fair dealing reform in the bill was a significant change that would "permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers."

The second is that Access Copyright is attempting to deceive the Copyright Board by suggesting that the legislation came after the Supreme Court of Canada decisions. As it well knows, the Supreme Court of Canada decisions actually came two weeks after Bill C-11 received royal assent. Access Copyright deceptively uses the coming into force date to misleadingly suggest that the law simply codified the court's decisions, when the court's decisions predated the legislative reform. Bill C-11 could not have codified the Supreme Court rulings since the bill passed the House of Commons, the Senate and received royal assent before the release of the Access Copyright decision by the Supreme Court.

Why is Access Copyright attempting to revise history?  Once again, the reasons are obvious. First, the government would not have added education to the fair dealing purposes if it had no meaning at all.  Rather, it was clearly the government's intent to expand the scope of fair dealing to cover more than research and private study. Second, Access Copyright is seeking to deflect attention from the fact that it has already told everyone what it thinks the legislation means. To again repeat its own words from the advocacy site it used to encourage people to speak out about the bill, the reforms "permit mass, industrial-scale copying (equivalent to millions of books every year) without compensation to the creators and publishers."

Access Copyright Urges Copyright Board to Ignore Supreme Court Ruling on Fair Dealing

Michael Geist Law RSS Feed - Wed, 2014/04/16 - 00:17
Access Copyright has filed its response to the Copyright Board of Canada's series of questions about fair dealing and education in the tariff proceedings involving Canadian post-secondary institutions. I have several posts planned about the 40 page response, which continues the copyright collective's longstanding battle against fair dealing. This one focuses on Access Copyright's astonishing effort to urge the Copyright Board to reject the Supreme Court of Canada's clear ruling on the relevance of licensing within the context of fair dealing.

Access Copyright has frequently argued that the availability of a licence should trump fair dealing. For example, in the 2001 copyright consultation it stated:

As a rule, where collective licensing is in place there should be no exception or limitation to a right for which the holder has a legitimate interest. As defined in the Act, anytime that a licence to reproduce a work is available from a collective society within a reasonable time, for a reasonable price and with reasonable effort, it is commercially available.

Access Copyright reiterated its position in its 2003 intervention in the Law Society of Upper Canada v. CCH Canadian case.  It argued:

Copibec and Access Copyright submit that the obtaining of photocopy licences, when they are offered by collective societies that are authorized by copyright owners to grant licences on their behalf, is an established and readily available alternative to the dealing. Where collective societies have created a workable market for institutional users to obtain licences for the right to reproduce works protected by copyright, courts should acknowledge that the reproduction of such works, absent a licence, will generally affect the potential market for those works, and take this factor into account in any analysis of whether a dealing is "fair."

The Supreme Court of Canada proceeded to directly respond to the Access Copyright argument in its CCH decision. The unanimous court ruled:

The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person's decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner's monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act's balance between owner's rights and user's interests.

That is about as clear cut as you can get: Access Copyright directly raised an argument and the Court unanimously rejected it. So what does Access Copyright do in its brief to the Copyright Board? Go right back to the same argument that the Supreme Court rejected:

In the digital age, the availability of a licence – whether from the rightsholder directly or from the collective that represents the rightsholder – has to be a consideration as to whether there is an alternative to the dealing. (The commercialization of works in a digital environment is done through the issuance of licences as opposed to the sale of physical copies of works.) In this case, a licence is clearly available from Access Copyright: the works in issue are all in Access Copyright’s repertoire. Further, the evidence filed by Access Copyright establishes that licences for the exact excerpt of the works that have been copied are available for purchase from the publishers. Given these alternatives, the copying purportedly permitted by the Policies is unfair.

Unfortunately, this example is only one of many misleading or inaccurate claims in the Access Copyright brief.  More on its effort to deceive the board on the timing of the Supreme Court of Canada's fair dealing decisions and the government's expansion of fair dealing in Bill C-11 in a post tomorrow.

Homeland Audiobook

Wil Wheaton reads this independently produced audio edition of Homeland, which also includes Jacob Appelbaum's reading of his own afterword, and Noah Swartz reading his brother Aaron Swartz's afterword.

The Expansion of Warrantless Disclosure Under S-4: Government's Response Fails to Reassure

Michael Geist Law RSS Feed - Mon, 2014/04/14 - 00:09
My post and column on the expansion of warrantless disclosure under Bill S-4, the misleadingly named Digital Privacy Act, has attracted some attention and a response from Industry Canada.  The department told iPolitics:

"Companies who share personal information are required to comply with the rules to ensure that information is only disclosed for the purpose of conducting an investigation into a contravention of a law or breach of an agreement. For example, self-regulating professional associations, such as a provincial law society, may wish to investigate allegations of malpractice made by a client. When organizations are sharing private information, the Privacy Commissioner can investigate violations and may take legal action against companies who do not follow the rules. This is consistent with privacy laws in British Columbia and Alberta and was recommended by the Standing Committee Access to Information, Privacy and Ethics."

The response may sound reassuring, but it shouldn't be.

First, the Privacy Commissioner of Canada can obviously address complaints regarding companies that do not follow the rules. However, the new rules plainly allow warrantless disclosure of personal information for an investigation into a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed. This broadly worded exception will allow companies to disclose personal information to other companies or organizations without court approval.

Second, the disclosure itself is kept secret from the affected individual, who is unlikely to complain since they will be unaware that their information has been disclosed. 

Third, allowing a regulated industry to conduct investigations (such as a provincial law society) is a far narrower issue than the wide open warrantless approach found in the bill.

Fourth, while the Standing Committee on Access to Information, Privacy and Ethics may have recommended a similar reform in 2006, that recommendation was rejected by both the Conservative government and the Privacy Commissioner of Canada. The committee recommendation appears to have come from a single submission from the Canadian Bar Association. The CBA appeared before the committee but was not questioned about the proposal.
The CBA proposal focused specifically on personal information legally available to a party to a legal proceeding. That is much narrower than the Bill S-4 provision. 

Yet even that narrower proposal was rejected by the Conservative government in its response to the committee recommendations:

The government notes the Committee's recommendation and acknowledges that it was made in response to concerns expressed by certain stakeholders regarding the need to ensure that PIPEDA does not impede litigation procedures.  However, the government does not share the Committee's view that such an amendment is necessary at this time.

The Privacy Commissioner of Canada also publicly opposed the recommendation, which she included among the six issues about which she had particular concerns:

The Canadian Bar Association recommended that the AB and BC Acts both provide clarity in regard to information legally available in a legal proceeding. I do not believe that this issue has posed any great difficulty over the past five years. The OPC has stated in complaints that the access provisions of PIPEDA may be broader than the requirements of discovery, depending on the breadth of documents relevant to a proceeding.

In other words, Bill S-4 contains an expanded version of a provision that one group asked for without facing any questions, that the government rejected when it was proposed, and about which the Privacy Commissioner of Canada expressed particular concern. In response, Industry Canada claims that Canadians can file complaints if the provision is misused, but by definition they will not know that their personal information has been disclosed.

My “Futuristic Tales of the Here and Now” in Vodo’s indie science fiction bundle: comics, movies, novels, and more!

Jamie from Vodo writes, "We've launched Otherworlds, our first indie sci-fi bundle! This pay-what-you-want, crossmedia collection includes the graphic novel collecting Cory's own 'Futuristic Tales of the Here and Now', Jim Munroe's micro-budget sci-fi satire 'Ghosts With Shit Jobs', Robert Venditti's New York Times Bestselling graphic novel 'The Surrogates', and Amber Benson/Adam Busch's alien office farce, 'Drones'. Check out the whole bundle and choose your own price 5% of earnings go to the Electronic Frontier Foundation!"

I love Vodo -- they produce gorgeous, high-quality science fiction shows that are CC licensed; each episode is released once donors have pitched in to pay for it. It's a business-model that lets them make good art based on generosity, trust and working with the Internet, instead of stamping their feet and insisting that it change to suit their needs.


Homeland audiobook, read by Wil Wheaton, is back on downpour.com

For those of you who missed the audiobook in which Wil Wheaton reads my novel Homeland in the Humble Ebook Bundle, despair no longer! You can buy it DRM-free on the excellent Downpour.com, a site with many DRM-free audio titles.

Homeland (audiobook)

Why the Digital Privacy Act Undermines Our Privacy: Bill S-4 Risks Widespread Warrantless Disclosure

Michael Geist Law RSS Feed - Wed, 2014/04/09 - 23:55
Earlier this week, the government introduced the Digital Privacy Act (Bill S-4), the latest attempt to update Canada's private sector privacy law. The bill is the third try at privacy reform stemming from the 2006 PIPEDA review, with the prior two bills languishing for months before dying due to elections or prorogation. 

The initial focus has unsurprisingly centered on the new security breach disclosure requirements that would require organizations to disclose breaches that puts Canadians at risk for identity theft. Security breach disclosure rules are well-established in other countries and long overdue for Canada. The bill fixes an obvious shortcoming from the earlier bills by adding some teeth to the disclosure requirements with the addition of penalties for violations of the law. Moreover, Bill S-4 stops short of granting the Privacy Commissioner full order making power as is found at the provincial level, but the creation of compliance orders has some promise of holding organizations to account where violations occur.

Despite those positive proposed changes to Canadian privacy law, the bill also includes a provision that could massively expand warrantless disclosure of personal information.

The government is already working to expand warrantless disclosure of subscriber information to law enforcement with Bill C-13 (the "cyber-bullying bill") 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. The law currently entrusts companies with a gatekeeper role since it permits them to either voluntarily disclose personal information as part of a lawful investigation or demand that law enforcement first obtain a court order. The immunity provision makes it more likely that disclosures will occur without a warrant since the legal risks associated with such disclosures are removed.

In light of revelations that telecom companies and Internet companies already disclose subscriber information tens of thousands of times every year without a court order, the immunity provision is enormously problematic. Yet it pales in comparison to the Digital Privacy Act, which would expand the possibility of warrantless disclosure to anyone, not just law enforcement. Bill S-4 proposes that:

"an organization may disclose personal information without the knowledge or consent of the individual... if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Unpack the legalese and you find that organizations will be permitted 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 applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

When might this apply? 

Consider the recent copyright case in which Voltage Pictures sought an order requiring TekSavvy to disclose the names and addresses of thousands of subscribers. The federal court established numerous safeguards to protect privacy and discourage copyright trolling by requiring court approval for any demand letters being sent to subscribers. If Bill S-4 were the law, the court might never become involved in the case. Instead, Voltage could simply ask TekSavvy for the subscriber information, which could be legally disclosed (including details that go far beyond just name and address) without any court order and without informing their affected customer.

In fact, the potential use of this provision extends far beyond copyright cases. Defamation claims, commercial battles, and even consumer disputes may all involve alleged breaches of agreements or the law. While the organization with the personal information (telecom companies, social media sites, local businesses) might resist disclosing information without a court order, the law would not require them to do so. 

The resulting framework from C-13 and S-4 is stunning from an anti-privacy perspective:
  • organizations could disclose subscriber or customer personal information without a court order to law enforcement with full legal immunity from liability
  • organizations could disclose subscriber or customer personal information without a court order to any other organization claiming investigation of an actual or potential contractual breach or legal violation
  • the disclosures would be kept secret from the affected individuals
  • the disclosing organizations would be under no obligation to report on their practices or past disclosures
The government claims the Digital Privacy Act "will provide new protections for Canadians when they surf the web and shop online". What it does not say that the same bill will open the door to massive warrantless disclosure of their personal information.

Digital Canada 150: Why the Canadian Strategy Misses Key Issues and Lags Behind Peer Countries

Michael Geist Law RSS Feed - Wed, 2014/04/09 - 04:35
In my first post on Digital Canada 150, Canada's digital strategy, I argued that it provided a summation of past accomplishments and some guidance on future policies, but that it was curiously lacking in actual strategies and goals. Yesterday I reviewed how Canada's universal broadband access target lags behind much of the OECD (Peter Nowak characterizes the target as the Jar Jar Binks of the strategy). The problems with Digital Canada 150 extend far beyond connectivity, however.  In comparing the Canadian strategy with countries such as Australia and the United Kingdom, it becomes immediately apparent that other countries offer far more sophisticated and detailed visions for their digital futures. While there is no requirement that Canada match other countries on specific goals, it is disappointing that years of policy development - other countries were 5 to 10 years ahead of Canada - ultimately resulted in a document short on strategy, specifics, and analysis.

For example, compare the clarity of goals between Canada and the Australia strategy:

By 2020, Australia will rank in the top 5 OECD countries in the portion of households that connect to broadband at home.
"Over 98% of all Canadians will have access to high-speed Internet at 5 megabits per second (Mbps) - a rate that enables e-commerce, high-resolution video, employment opportunities and distance education - providing rural and remote communities with faster, more reliable online services."

By 2020, Australia will rank in the top 5 OECD countries in the portion of businesses and not-for-profits using online opportunities to drive productivity improvements, expand their customer base, and enable jobs growth
"Canadian companies, large and small, will use digital tools to boost productivity, develop their businesses and capture growing markets and home and abroad."
By 2020, the majority of Australian households, businesses, and other organizations will have access to smart technology to better manage their energy use.
No discussion of energy use.
By 2020, 90% of high prority consumers (older Australians, babies, etc.) will have access to individual electronic health records.
No discussion of health records. Closest goal is "Canada will be one of the global leaders in applying 'big data' to change how we think about and carry out health care, research and development, as well as the myriad of activities of business and government."
By 2020, Australia schools will have connectivity to develop and collaborate on innovative and flexible educational services and resources to extend online learning resources to the home and workplace
No discussion of schools (only reference is to support for Computers for Schools program).
By 2020, Australia will have at least doubled its level of teleworking so that at least 12% of Australian employees report having teleworking arrangements with their employer
No discussion of teleworking.
By 2020, 80% of Australians will choose to engage with the government through the Internet or other type of online service.
"The Government of Canada will be a leader in using digital technologies to interact with Canadians, making it simpler and quicker to access services and information online."
By 2020, gap between households and businesses in capital cities and those in regional areas will have narrowed significantly
No discussion of urban vs. rural divide.

The Canadian strategy simply ignores many key areas commonly found in digital strategies such as telework, telehealth, and education.  Moreover, even where the strategy addresses similar issues there are few targets that can be used to measure success. Instead, the Canadian strategy frequently talks generically about being a "leader".

Not only does the Australia strategy establish measurable goals, it openly discusses where the country stands and why action is needed. For example, the strategy examines Internet usage data, noting that:

"About 26 per cent of Australians 15 years or over did not use the internet in 2008–09. This figure is much higher for retired persons, low-income earners,
 Indigenous Australians and those living in remote areas."

There are similar statistics available in Canada. Internet use among the richer half of the country is actually over 90 per cent with the top quartile of household income at 94.5 per cent and the second quartile at 90.2 per cent. Internet use among the bottom quartile of Canadians stands at only 62.5 per cent (the third quartile is 77.8 per cent). The digital divide remains consistent across all demographics with wealthier households far likelier to use the Internet than poorer ones regardless of their age.

Last year, the Australian government released a 152 page update on its strategy, identifying dozens of actions that had been taken or that were underway.  In addition to cybercrime initiatives similar to those in Canada, actions included developing a new curriculum for technologies and promoting the adoption of cloud computing in Australia.  The update also provided data on whether the government was meeting its target goals.

The United Kingdom's Digital Britain report, which dates back to 2009 and is 245 pages length (roughly 10 times the size of Digital Canada 150), is even more extensive. For example, on the issue of connectivity, it discusses both access and affordability, recognizing that access alone is insufficient. To address affordability, it proposed a 300 million pound Home Access program for low income families. Digital Britain also discusses the future of its public broadcaster, the BBC, to address how it can remain relevant in the online world. There is no reference to the CBC in Digital Canada 150.  Digital Britain also reaches into issues such as health, transport, energy, and education, areas largely ignored in Digital Canada 150. Moreover, Digital Britain has been followed by Digital Britain One and Digital Britain Two, both focused specifically on enhancing government online.

Digital Canada 150 need not be identical to the strategies found in Australia, the United Kingdom or any of the other myriad of countries that have released digital strategies. Yet after years of waiting, it is not unreasonable to expect something more than 26 pages that is focused primarily on past accomplishments, establishes few measurable goals, and ignores crucial areas such as affordability of computers and connectivity, health care, energy, and education.

Using Technology to Celebrate and Remember the Civil Rights Movement

Google Public Policy BLOG - Tue, 2014/04/08 - 15:23
Posted by Susan Molinari, VP Public Policy  
Technology can help us understand our past and connect with history in extraordinary and meaningful ways. This week, the LBJ Presidential Library is holding a three day Civil Rights Summit to mark the 50th anniversary of the Civil Rights Act of 1964 and we are proud to provide technology to help support this event.
Over the next three days, we will be live streaming the program so people from all over the world can tune in to hear the panels and speakers, including remarks from four U.S. presidents. Each day will also feature heroes from the civil rights movement, the sports arena and the music industry, as well as panels on new civil rights challenges around immigration rights, gay rights, women’s rights and so much more.  We hope you can tune in, but if you miss the live stream, you can find all of the content on the LBJ Library’s YouTube page.
President Jimmy Carter will also be doing a Google+ Hangout on Air Tuesday at 2:00 PM PST.  Rock musician Graham Nash of Crosby, Stills and Nash fame will be on Air Tuesday at 2:30 PM PST, and playwright Robert Schenkkan, whose play about LBJ is currently on Broadway, will be on Air Wednesday at 2:00 PM PST.
Finally, Google has teamed up with the National Archives to launch a new collection on the Cultural Institute to capture the history of the passage of the Civil Rights Act online. Much of the content on the site is from the LBJ Presidential Library and features images, letters, telegrams, and video from January 1961 when President Kennedy first takes office to July 1964 when President Johnson signs the Civil Rights Act into law. Here are a few examples of what can be found in the collection:

We are honored to be able to help capture this important event and this special exhibit highlighting one of America’s most pivotal moments in history.

Digital Canada 150: Why Canada's Universal Broadband Goal is Among the Least Ambitious in the OECD

Michael Geist Law RSS Feed - Tue, 2014/04/08 - 04:12
The release of Digital Canada 150, the federal government's long-awaited digital strategy, included a clear connectivity goal: 98 percent access to 5 Mbps download speeds by 2019. While the government promises to spend $305 million on rural broadband over the next five years and touts the goal as "a rate that enables e-commerce, high-resolution video, employment opportunities and distance education", the reality is that Canada now has one of the least ambitious connectivity goals in the developed world. 

Just how badly does the government's connectivity ambitions compare to other OECD countries? Consider just some of the target speeds from other countries as compiled three years ago by the OECD:

Target Year
Target Speed
100% access to 25 Mbps
100% premises, 93% homes, schools and business to 100 Mbps Denmark
100% access to 100 Mbps
99% within 2 km of network permitting 100 Mbps Germany
75% access to 50 Mbps
100% household access to 100 Mbps Hungary
100% access to 30 Mbps Luxembourg 2020
100% access to 1 Gbps Slovak Republic 2020
100% access to 30 Mbps Sweden 2020
90% access to 100 Mbps United States
100% access to 4 Mbps  
Not only is the target speed low compared to many other countries (the U.S. being the notable exception), but the goal of universal broadband access comes years after other countries put similar policies into place. For example, other countries with universal access targets include:

Universal Access Target Year
Czech Republic
2015 (rural speeds at least 50% of city speeds)
United Kingdom

The Canadian target of 2019 is later than all of these countries, some by more than a decade.  In fact, the government's target date is far later than the Canadian Radio-television and Telecommunications Commission, which set a 2015 deadline with the same speed goal. Unfortunately, the lack of ambition is not limited to connectivity. More on how the Canadian digital strategy pales in comparison to peer countries by largely omitting key issues such as affordability, education, tele-health, and energy in a post tomorrow.

Digital Canada 150: The Digital Strategy Without a Strategy

Michael Geist Law RSS Feed - Sat, 2014/04/05 - 12:50
Four years after the Canadian government first announced plans to develop a digital economy strategy, Industry Minister James Moore traveled to Waterloo, Ontario, Friday for the release of Digital Canada 150. The long-awaited strategy document identifies five key areas for policy development: connecting Canadians, protecting the online environment, developing commercial opportunities, digital government, and Canadian content.

My weekly technology law column (Toronto Star version, homepage version) argues the release of Digital Canada 150 succeeds on at least three levels. First, it puts to rest the longstanding criticism that the government is uninterested in digital issues. Moore quickly emerged as the government’s digital leader after taking the reins at Industry Canada, promptly focusing on wireless competition, spam regulation, and now a digital strategy. After years of complaints that the digital strategy issue was Ottawa's equivalent of the "Penske File" - all talk and no action - Moore has acted.

Second, Digital Canada 150 demonstrates that the federal government has been more engaged on digital issues in recent years than is generally appreciated. Indeed, much of the document is presented as a report card, with the requisite check boxes on numerous legislative initiatives (copyright and trademark reform, spam), regulatory developments (wireless competition), and program funding (rural broadband, digital media). The message is clear: the broader strategy document may have been missing, but digital issues were not forgotten.

Third, Moore's document provides some guidance on future policy development. While there are few surprises, there is confirmation that the government plans to introduce private sector privacy reform, invest in rural broadband, introduce regulations on crypto-currencies, continue its welcome emphasis on open data, and push through lawful access legislation that has been framed as a "cyber-bullying" bill.

Despite these successes, Digital Canada 150 ultimately suffers from some notable omissions. For a strategy document, it is curiously lacking in actual strategy. The government updates Canadians on what it has done and provides some insight into what it plans to do, but there are few new strategies articulated.  

Measurable targets and objectives typically guide strategy documents, yet there are not many to be found in Digital Canada 150. In fact, the most obvious target - 98 percent broadband access of 5 Mbps - is slower than many comparable targets around the world and comes years later than the Canadian Radio-television and Telecommunications Commission's stated goal for the same level of Internet connectivity.

Further, the document never links together digital policies with other government initiatives in a strategic manner.  The government has emphasized its international trade agenda, but there is no effort to link trade agreements with a strategy to bring Canadian business online to market and sell to a global marketplace. Similarly, Canadian foreign policy has adopted strong positions against authoritarian regimes, yet there is no strategy that combines that policy with one that prohibits the export of censorship technologies to those countries that repress free speech.

Digital Canada 150 is also largely silent on the issue of investing in the online environment. The recent spectrum auction generated billions of dollars in revenue, but there are seemingly no plans to directly invest the "digital dividend" on digital issues.

Most disappointingly, Digital Canada 150 lacks a big picture goal or target that might have made the whole greater than the sum of its parts.  There was no shortage of possibilities such as a national digital library to revolutionize access in schools and communities, a rethinking of Canadian surveillance policy so that mounting fears of widespread surveillance of individuals might be addressed, structural separation of Internet providers or a plan to join forces with the private sector to bring affordable access and computing equipment into every home in Canada.

These were the types of initiatives that might have captured the public's imagination and put an identifiable face on a broader strategy document. Instead, four years of waiting has yielded a modest vision of Canada’s digital future that frequently focuses more on what the government has done than on where it wants to go. Moore deserves credit for bringing the strategy to the finish line, but given the remarkable possibilities created by the Internet and new technologies, many Canadians were likely hoping for more.

U.S. Calls Out Canadian Data Protection as a Trade Barrier

Michael Geist Law RSS Feed - Wed, 2014/04/02 - 00:14
The U.S. Trade Representative issued its annual Foreign Trade Barrier Report on Monday. In addition to identifying the geographical indications provisions in the Canada - EU Trade Agreement, telecom foreign ownership rules, and Canadian content regulations as barriers, the USTR discussed regulations on cross-border data flows. I wrote about the issue recently, noting that the Canadian government restricted access to its single email initiative to Canadian-based hosting.

The USTR picks up on the same issue in its report:

The strong growth of cross-border data flows resulting from widespread adoption of broadband-based services in Canada and the United States has refocused attention on the restrictive effects of privacy rules in two Canadian provinces, British Columbia, and Nova Scotia. These provinces mandate that personal information in the custody of a public body must be stored and accessed only in Canada unless one of a few limited exceptions applies. These laws prevent public bodies such as primary and secondary schools, universities, hospitals, government-owned utilities, and public agencies from using U.S. services when personal information could be accessed from or stored in the United States.
The Canadian federal government is consolidating information technology services across 63 email systems under a single platform. The request for proposals for this project includes a national security exemption which prohibits the contracted company from allowing data to go outside of Canada. This policy precludes some new technologies such as "cloud" computing providers from participating in the procurement process. The public sector represents approximately one-third of the Canadian economy, and is a major consumer of U.S. services. In today’s information-based economy, particularly where a broad range of services are moving to "cloud" based delivery where U.S. firms are market leaders; this law hinders U.S. exports of a wide array of products and services.

This issue bears watching given the growing momentum for localized data hosting conflicting with provisions in the Trans Pacific Partnership that would seek to restrict such provisions.

Ok… so BlackBerry Can Patent a Keyboard!

IPBlog (Calgary) - Tue, 2014/04/01 - 15:00
As a follow-up to our earlier post (Can BlackBerry Patent a Keyboard?), a US court on Friday issued a preliminary injunction in a dispute between the BlackBerry maker and start-up Typo Products LLC which sells a snap-on keyboard for the iPhone. The preliminary court order prohibits Typo from the sale of its ...

Trade-mark Confusion: Is One Letter Enough of a Difference?

IPBlog (Calgary) - Tue, 2014/04/01 - 15:00
BIG BITE vs. BIT BITE. These two marks were assessed in the recent case of 7-Eleven, Inc v BitBite Foods Inc. , 2014 TMOB 16 (CanLII), for snack food products. BitBite Foods filed an application to register the BIT BITE design at right in connection with a variety of food ...
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