Digital Copyright Canada

Today is human genome day at the US Supreme Court. There will be oral argument on Association for Molecular Pathology v. Myriad Genetics, Inc.. The link will take you to the ABA's collection of amicus briefs, and there are many of them, and the merits briefs. The question before the court is this: QUESTION PRESENTED: Many patients seek genetic testing to see if they have mutations in their genes that are associated with a significantly increased risk of breast or ovarian cancer. Respondent Myriad Genetics obtained patents on two human genes that correlate to this risk, known as BRCA1 and BRCA2. These patents claim every naturally-occurring version of those genes, including mutations, on the theory that Myriad invented something patent--eligible simply by removing ("isolating") the genes from the body. Petitioners are primarily medical professionals who regularly use routine, conventional genetic testing methods to examine genes, but are prohibited from examining the human genes that Myriad claims to own. This case therefore presents the following questions: 1. Are human genes patentable?

2. Did the court of appeals err in upholding a method claim by Myriad that is irreconcilable with this Court's ruling in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)?

3. Did the court of appeals err in adopting a new and inflexible rule, contrary to normal standing rules and this Court's decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad's "active enforcement" of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally threatened with an infringement action? Can you believe that is the question, are human genes patentable? But it is what the court has to decide. How in the world did we get to such a place? The argument [PDF] by Myriad is that they aren't patenting genes *in* the body, only after they've removed them and done things to them that are not done in the body, arguing that "isolated" DNA can perform functions that DNA can't. But ACLU's lawyer points out in its reply brief, you can't patent gold after you take it out of a stream just because you can make jewelry with it or patent kidneys after you remove them from one body and transplant them: Myriad is in effect arguing that it may obtain a patent on a product or law of nature itself if it finds a new use for it. Under this theory, Section 101 would not prohibit someone from obtaining a patent on gold if she found a new use for gold. As a matter of law, that argument is incorrect. So that is what is at stake.

In Part I and Part II of my Kirtsaeng saga, I detailed an American Supreme Court decision that addressed control of copyrighted works, after works have been transacted in sale according to the law. Two clauses of the American Copyright Act were in opposition; a right of control, to ban importation of copyrighted works acquired outside the United States collided with the limitation of control imposed by the doctrine of first sale. The majority opinion, written by Justice Breyer, decreed that first sale applies if the copies were legitimately produced and sold, irrespective of geographical consideration. In this case, the textbooks entering the United States were made and purchased in accordance with the publisher’s subsidiary organization for production and sales in Asia.

The importation ban allows publishers to more easily segment their markets. Similar books may be sold in different regions at different prices, without fear that cheaper copies would be resold in the United States undermining the American market. Publishers price their works according to the constraints of their target markets; higher-priced American books simply will not sell in lower-income countries. Thus those books are produced with lesser quality (i.e. cheaper paper, no colour images, etc. ) and priced with an eye to cost recovery. Which means the revenue from foreign market productions does not serve to reduce the costs incurred at home.

According to the brief submitted by Wiley (and similar language is found in the brief submitted by the Association of American Publishers) the development costs of a textbook are significant and are paid for by domestic market sales. If domestic wholesalers (i.e. campus bookstores or Costco) could import cheaper books and resell them, publishers’ revenues will severely decline, leaving little to fund the production of new books. “The likely result of Kirtsaeng’s proposal would be reduced access to educational materials around the world, with little corresponding benefit for American students (Wiley, p.49).”

Which raises the question of why bother to sell to foreign markets at all? If the sales only cover printing and distribution there seems little incentive to supply to those markets. A possible answer is that publishers are concerned with providing access to “educational materials around the world.” But altruism gives way to pragmatism; if consumers cannot afford the high-priced American textbook, piracy is likely to occur. And Wiley notes that “‘governments have been more responsive in dealing with piracy cases when textbooks are priced at a level that local students can afford.’ (Wiley, p.47).”

In making their argument, Wiley makes constant reference to a study by the Governmental Accountability Office (College Textbooks – Enhanced Offerings Appear to Drive Recent Price Increases, 2005). Wiley does not endorse all the findings and points to concerns expressed by the Association of American Publishers but: “nonetheless believes that the report’s summary of the many factors that bear on pricing in different countries provides useful context for the Court (Wiley, p.7).” In fact, the Association disagreed with the study almost in its entirety, objecting to the data used, the methodology, and the tone of the report (GAO 2005, p.38-43). Their concerns were addressed by the authors of the report, who emphasized the objective of the study was not to assign blame to publishers but to better understand how publishing practices (and the factors influencing those practices) affect the cost of college textbooks (GAO 2005, p.26-28).

The data used within the report spanned 1986-2004 and thus does not serve to reflect pricing today. That said, the principle reason cited for the heightened expense of books is the need to provide more than just a textbook (this might still play a part in pricing today and invites further study):

While many factors affect textbook pricing, the increasing costs associated with developing products designed to accompany textbooks, such as CDROMs and other instructional supplements, best explain price increases in recent years. Publishers say they have increased investments in developing supplements in response to demand from instructors (GAO 2005, p.i).

Returning to the Kirtsaeng dilemma, the challenges for the publishers to produce quality textbooks at home and abroad, while acknowledged by Justice Breyer, did not shift the focus of the case. He writes:

Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights (p.31).

Breyer even goes so far as to indicate that giving the publishing sector the legislative power to divide markets would bring in an undercurrent of antitrust behavior:

We have found no precedent suggesting a legal preference for interpretations of copyright statutes that would provide for market divisions. … To the contrary, Congress enacted a copyright law that (through the “first sale” doctrine) limits copyright holders’ability to divide domestic markets. And that limitation is consistent with antitrust laws that ordinarily forbid market divisions…. Whether copyright owners should, or should not, have more than ordinary commercial power to divide international markets is a matter for Congress to decide (p.32)

And that is where American copyright debate is heading. The last significant changes to the American regime of copyright took place in 1998; with the Digital Millennium Copyright Act and the Copyright Term Extension Act. The last revision of the entire Act was in 1976. Maria Pallante (U.S. Registrar of Copyright) is calling for a complete overhaul of the law; Mike Masnick, writing for TechDirt on 18 March 2013, gave a comprehensive review and analysis of her early proposals. No doubt lobbyists of all stripes are gearing up for debate; the publishing community is sure to seek modification of first sale.

In the meantime, questions of importation are part and parcel of looming international trade agreements. Canada is eager to join the TransPacific Partnership Agreement (TPP), despite having no recourse to negotiating any of its terms. In November 2011, members of the Program on Information Justice and Intellectual Property provided a sobering analysis of the agreement from the perspective of the public interest. On the matter of market segmentation, the TPP would remove the flexibility of nations to import copyrighted works from the supplier (and country) of their choice, a flexibility that benefits consumers and is consistent with existing World Trade Organization regulations.

Posted by David Lieber, Public Policy Team 

Just like burglars and thieves, cyber criminals have many different ways to steal personal information and money. Consumers and technical experts alike are awakening to the reality that passwords - even those that are developed in ways that reduce the likelihood of a breach - are not the cure-all for online security.

Last year, Wired senior writer Mat Honan drew attention worldwide for his first-person account of having his online identity hijacked -- a story that spurred a conversation about passwords and online privacy and security.  On Wednesday, April 17th, Google DC is hosting a talk with FTC Commissioner Maureen Ohlhausen on data security, followed by a fireside chat with Mat Honan and security experts to discuss security challenges and the solutions that companies are working on to protect consumers against existing and emerging threats. 
Beyond the Password: Protecting Your Online Identity Wednesday, April 17th 5:00 PM - 6:00 PM Google DC
If you are in the DC area, please join us for an engaging discussion about protecting your online identity. RSVP by clicking here.

Samsung has been given leave [PDF] in Apple v. Samsung II to depose Toshiyuki Masui [PDF] in Japan regarding prior art. Specifically, it's about POBox software, which it believes is relevant prior art.

Here is a paper [PDF] on POBox by Professor Masui, "An Efficient Text Input Method for Pen-based Computers", published in Proceedings of the ACM Conference on Human Factors in Computing Systems (CHI'98) (April 1998). Here's another, "An Efficient Text Input Method for Handheld and Ubiquitous Computers" the following year [PDF]. Professor Masui was approached and expressed willingness to attend the deposition. The deposition is set for June 11 in Tokyo, in the US embassy there. The Declaration [PDF] attached to the motion asking for leave to depose Professor Masui explains how it all happened: 2. I first spoke with Professor Masui on or about February 5, 2013. I explained that we were interested in Professor Masui's work on the POBox software, which is relevant prior art in this litigation. On or about the morning of February 6, my colleague John McKee and I spoke to Professor Masui about POBox. During this call, Professor Masui expressed willingness to gather and provide information about POBox. Several days later, on or about February 12, 2013, Professor Masui verbally confirmed to me that he would be willing to sit for a deposition in this matter.

3. Over the last few months, I have spoken with Professor Masui several additional times. Professor Masui has declined to travel to the United States for a deposition, but has stated that he would be willing to appear for a deposition in Tokyo, Japan. On or about March 20, Professor Masui confirmed to me that he was available June 11 in Tokyo, and would be willing to sit for a deposition on that date. Samsung thereafter reserved space at the U.S. Embassy in Tokyo for Professor Masui's deposition. Attached are the rules for such depositions, Exhibit 1, The United States - Japan Consular Convention, and Exhibit 2, the State Department's guidelines for conducting depositions in Japan.

Also the judge, the Hon. Lucy Koh, has filed her order [PDF] construing disputed patent claim terms. It's full of the usual infuriating spaghetti language about terms that describe elements of patents that in my view should never have issued in the first place. Don't read on if you don't want to know about one specific. But there is a link to Professor Masui's work.

Universities have been slow in modernizing how they fund educational material, but have finally been moving away from post-payment (primarily monopoly rent seeking) to pre-payment where the authoring, editing and other works is paid up-front with the results shareable royalty-free.  Doing things as post-payments has allowed third parties to extract huge amounts from educational budgets, and it is far past time that universities took responsibility for these costs downloaded on students and the taxpayer.

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- Here is the next case that illustrates the potential pitfalls when dealing with social media: This recent US copyright decision involving Agence France Presse (AFP) and photographer Daniel Morel dealt with the rights of a news publisher to publish images posted to Twitter. Mr. Morel is a photojournalist who took a number ...

Soon after the publication of my column on the digital divide in Canada, I received the following email from a reader, who lives just north of Toronto (FWIW, I've received similar letters from people within the City of Ottawa limits). The reader reacts to both the lack of access and the efforts of Xplornet to stop the government from supporting communities without access. The letter ends with an important question: will the Standing Committee on Industry, Science and Technology take the time to hear directly from Canadians without access?  The full letter is posted below with permission.

My family lives in a rural subdivision north of Stouffville and east of Newmarket, ON.  We do not have access to broadband internet service except through the expensive satellite service to which you alluded in your article.  I have lobbied my representatives at all three government levels in hopes that they might be able to help provide service here........all to no avail.  At least my federal MP promised that the government was on the "cusp" of providing high speed internet service to our area.  I emailed back for a clarification of the term "cusp" and so far have not received a reply.  That was three years ago.

Xplornet Communications has been extremely aggressive in their marketing to sell high speed service in our area with flyers in the mail as well as door-to-door literature drop-offs.  However, due to topography and trees in our area, we are unable to "see" any of their towers, so even their service in unavailable to us.  It seems ironic to hear of their admonishment to the Standing Committee against the government's support to help areas like ours achieve what most Canadians take for granted, i.e., access to high speed internet.

Thank you for your article.  It has created a buzz amongst my neighbours.  We all thought we had just slipped through the cracks.  As a point of interest, I wonder if this Standing Committee actually includes anyone who does not have access to broadband?

A San Francisco case, AF Holdings v. Trinh, has been dismissed with prejudice, based upon the plaintiff's failure to post an undertaking in the amount of $47,500.

Subsequent to the dismissal, defendant has moved for his attorneys fees.

November 9, 2012, Order, directing plaintiff to file undertaking in amount of $47,500, Hon. Charles R. Breyer, District Judge
February 25, 2013, Order, granting motion to dismiss with prejudice, Hon. Charles R. Breyer, District Judge
Declaration in support of motion for attorneys fees Ray Beckerman, P.C.

Posted by Andreas Tuerk, Product Manager

Not many of us like thinking about death — especially our own. But making plans for what happens after you’re gone is really important for the people you leave behind. So today, we’re launching a new feature that makes it easy to tell Google what you want done with your digital assets when you die or can no longer use your account.

The feature is called Inactive Account Manager — not a great name, we know — and you’ll find it on your Google Account settings page. You can tell us what to do with your Gmail messages and data from several other Google services if your account becomes inactive for any reason.

For example, you can choose to have your data deleted — after three, six, nine or 12 months of inactivity. Or you can select trusted contacts to receive data from some or all of the following services: +1s; Blogger; Contacts and Circles; Drive; Gmail; Google+ Profiles, Pages and Streams; Picasa Web Albums; Google Voice and YouTube. Before our systems take any action, we’ll first warn you by sending a text message to your cellphone and email to the secondary address you’ve provided.

We hope that this new feature will enable you to plan your digital afterlife — in a way that protects your privacy and security — and make life easier for your loved ones after you’re gone.

 

The parties in Apple v. Samsung have filed the extra briefs the Hon. Lucy Koh asked for in her April 2nd order. She asked for the following: To assist the Court in resolving the many pending disputes, the Court sets the following briefing schedule:

(1) On April 9, 2013, Apple shall file a response, not to exceed six pages, to Samsung's contention that a new trial on damages alone violates the Seventh Amendment. See Samsung Opposition to Apple's Motion Seeking an April 3 Case Management Conference, ECF No. 2286 at 5-10. On April 16, 2013, Samsung may file a reply, not to exceed five pages.

(2) On April 9, 2013, Samsung shall file a response, not to exceed five pages, to Apple's contention that immediate appeal of this Court's Order Re: Damages filed on March 1, 2013 is not viable. See Apple's Motion Seeking an April 3 Case Management Conference, ECF No. 2283, at 2. On April 16, 2013, Apple may file a reply, not to exceed four pages.

(3) On April 9, 2013, both parties shall file a statement, not to exceed four pages per party, regarding when their US PTO reexaminations of the opposing party's patents will conclude and what effect the concluded reexaminations will have on any new trial or appeal. On April 16, both parties may file a response, not to exceed two pages per party. There will be more on all this, as you can see each gets to respond to the other's brief.

The Canadian wireless sector was hit by a shock yesterday as the three major new entrants - Wind Mobile, Public Mobile, and Mobilicity - announced that they were withdrawing from the Canadian Wireless Telecommunications Association. The companies argued that the CWTA has shown consistent bias in favour of Bell, Telus, and Rogers, the three incumbent providers. All three used strong language to emphasize their frustration with the CWTA, speaking of a "blatant disregard" for new entrants and failures to honour promises of fair representation. 

The move is a major blow to the CWTA, which has long promoted itself as the voice of the industry. For example, during the recent CRTC consumer wireless code hearing, it opened by stating:

CWTA represents virtually all of the major companies in Canada's wireless telecommunications ecosystem. Our members include wireless service providers, handset manufacturers, builders of network, infrastructure and numerous other companies that develop and produce products and services for the industry and for consumers.

No longer.  So why the change? 


A key part of the CWTA mission (in serving as the voice of the incumbent providers) has been to delay, dilute, or defeat efforts to address the competitiveness failures of the Canadian wireless sector.  It is why it implausibly claims that the market is competitive at the same time that its (now former) member Wind Mobile told the CRTC in March:

Canadians are frustrated by the manner in which the control that Bell Mobility, TELUS and Rogers (collectively the “Incumbents”) exercise in the wireless services market is exerted. The Incumbents, having created the deplorable consumer conditions in the marketplace which has forced some Provinces to step in and provide a basic level of consumer protection, are seeking to use this Proceeding as a tool to stop these legislative initiatives.

The delay, dilute or defeat strategy has been evident for years. Before the 2008 spectrum set-aside that opened the door to new competitors, the CWTA argued consistently against a set-aside, claiming that "the Canadian wireless market has been competitive from the outset." Once new competitors entered the market, the CWTA focused on delaying, diluting or defeating consumer wireless protections. It argued against them at the provincial level and recommended delays to the implementation of the forthcoming CRTC code (along with support for three year contracts, no intervention on unlocking phones, and other anti-consumer positions).

The opposition to consumer protections placed the CWTA in direct conflict with the new entrants. In 2011, Mobilicity openly opposed the CWTA, stating:

We are exceptionally disappointed with the CWTA's lack of foresight in continuing to act only in the interests of the Big Three wireless oligopoly. As members of the CWTA, we repeatedly voiced our opposition to its submission to no avail.

When Ontario introduced similar rules, Wind Mobile and Mobilicity both expressed support for the new rules.

As part of the CRTC's consumer wireless code hearing, Wind Mobile's reply in December to the consumer wireless code started with the following:

At the outset, for the sake of clarity, WIND Mobile would like to highlight that our reply comments, which unsurprisingly differ from some of the positions taken by the dominant incumbent wireless service providers (Bell, Rogers, and TELUS ("BRT")), also sometimes differ materially from the positions taken by the Canadian Wireless Telecommunications Association ("CWTA") in this proceeding and most notably in its reply comments filed today. The CWTA has elected to take certain positions over the express objections of WIND Mobile (on the basis that such positions are not "industry positions" but rather those of a BRT-dominated CWTA board). Accordingly, without needing to single out positions taken by the CWTA which align with those of WIND Mobile, WIND Mobile simply states that WIND Mobile does not support the CWTA submission and these reply comments alone set forth our views on these matters.

The company offered the following comments on three-year contracts at the CRTC hearing itself:

the primary thing we want to speak to today in that regard is three-year service contracts. Now, the Big Three have claimed that consumers love them, and that we can't take away such an adored option. This is unfortunately also the position also being advocated by the CWTA. In this regard I have to stress and they knew going in that I would stress that the position that they are advocating is not the position of the industry. It's not the position of WIND Mobile and we're a member of the CWTA and we're in the industry.

Viewed in this light, the only surprising thing about the decision to abandon the CWTA is not why, but rather what took so long. As for next steps, the new entrants should move swiftly to establish the CCWTA - the Canadian Competitive Wireless Telecommunications Association. Such a move would provide a powerful alternative voice to the CWTA and ensure that both the government and the CRTC recognize that there are deep divisions within the industry with many legitimately concerned about the state of competitiveness of the Canadian wireless market.

Ted Menzies, the Minister of State for Finance, yesterday delivered a talk on the Canada - EU Trade Agreement that marked an important shift in the government's rhetoric on the agreement. Aside from a bizarre reference to the value of the agreement being $17 trillion dollars (total Canadian GDP is $1.8 trillion), the talk is most notable from the move away from promising swift completion of the agreement. After years of setting missed deadlines, Menzies now says there is no deadline for completion, suggesting that the government is beginning to hedge on whether there even will be a deal. I wrote about the prospect of the agreement dying altogether last month.

Peter Nowak is back with another thorough debunking of many of the wireless myths about the competitiveness of the Canadian market.

The USPTO has now made available video and slides from the speakers at the two roundtable discussions on improving software patents held so far, the first in Silicon Valley on February 15, and the second in New York City on February 27. Sadly, it's .wmv and mostly all PowerPoints, like it's still the '90s and everyone uses Windows.

Those days are so over. Time to modernize, I'd suggest. Nowadays, most people use Apple or Android, on mobiles, to boot.

There's a new deadline for sending them comments, April 15. Groklaw already sent ours in, but if you have further thoughts, there's still time. And the comments already received are available now too.

Posted by Susan Molinari, Vice President, Public Policy and Government Relations

Remember the ITU? It might seem like a long time ago, but it was only last December at a closed-door meeting of the International Telecommunications Union (ITU) in Dubai when some governments proposed measures to censor and regulate the web. We joined millions of individuals and thousands of organizations from all over the world in speaking up against this.

The fight to keep the Internet free and open isn’t over.
Eighty-nine countries signed onto the treaty that came out of the ITU conference. We continue to stand with the countries that refuse to sign. For all of us who believe in pushing back the tide of censorship online, it’s very important to remain vigilant and reaffirm our commitment to an open web.
Among the many voices who spoke up against the closed negotiations at the ITU were those of virtually every Member of the United States Congress. Indeed, in a resolution adopted last year by both the Senate and the House of Representatives without a single dissenting vote, Congress called for the web to remain free from government control and emphasized its support for the multistakeholder model that has allowed the Internet to flourish.
This week, the House Energy and Commerce Committee is once more considering a call for the Internet to remain free and open. We’re glad Congress remains focused on the ways the ITU proposals threaten the web we have today.
Speaking with one voice in Dubai enabled the United States to lead in defense of Internet freedom. We look forward to supporting policy makers’ efforts to ensure the web keeps fueling economic growth, innovation, and the vibrant exchange of information.

- Social media law was not a topic on offer when I went to law school. Now, it's a subject that's hard to avoid for any business that has a consumer-facing social media presence. Here are two recent cases that illustrate the potential pitfalls as this area of law becomes more ...

My planned third and final installment of Kirtsaeng must wait a little longer; Access Copyright is once again trying to roll back the interpretation of fair dealing fostered in Canada by both the Supreme Court of Canada and the Government of Canada. This progressive interpretation took shape slowly, with Court decisions spanning 2002-2012  and Government efforts at amendment benefiting from more than ten years of deliberation. Both bodies took measured steps that recognize the importance of maintaining copyright’s limits. Access Copyright is setting its sights on the educational community that took guidance from the government and the Court. Access Copyright states:

Canada’s writers and publishers take a stand against damaging interpretations of fair dealing by the education sector.  Access Copyright is taking legal action—on three fronts. The actions focus on York University, ministries of education, school boards and post‐secondary institutions that copy—and promote the copying—of copyright‐protected materials without a licence.

In the available statement of claim, Access Copyright identifies five members of York University as having:

…  reproduced, in whole or substantial part, and authorized the reproduction by students and third-party copyright-shops, in whole or substantial part, of more than one copyright-protected work within the Repertoire. … Each separate act of reproduction … has been undertaken without the consent or permission of the plaintiff…

(According to the statement of claim, details are available in Schedule B; this schedule is not posted online.)

Access Copyright places the blame for the individuals’ alleged infringement upon York University’s Fair Dealing Guidelines:

The arbitrary and purely mathematical extent and systematic, recurring nature of the reproduction and dealing with copyright-protected works authorized and encouraged by such guidelines is not encompassed within the fair dealing exemption under the Copyright Act.

The Copyright Act does not stipulate precise conditions of fair dealing for the reason that fair dealing must meet the flexibility inherent to the purposes it serves (research, private study, education, parody, satire, criticism/review, and news reporting). York University, like many educational institutions, has a conservative framework of what is an allowable amount and takes pains to explain the fullness of a decision of fair dealing. Drawing from CCH Canadian, York lays out questions to be asked and emphasizes: “The circumstances that qualify within the Fair Dealing Exception may vary from case to case.”

Michael Geist describes Access Copyright’s behaviour for what it is: a “desperate declaration of war against fair dealing”. He reminds us that Access Copyright’s last effort to challenge fair dealing in educational institutions resulted in failure (decided by the Supreme Court in July 2012, commentary available from here). Recycling failed arguments hardly seems like good strategy. But Access Copyright reveals an added objective, surveillance and control of all copying within post-secondary institutions:

In any event, such guidelines, are incapable of any effective, reliable or consistent enforcement by the defendant. All such purported “fair dealing” limits have been and will be regularly exceeded by the acts of reproduction and authorized reproduction by the Educators and the defendant’s students.

To suggest that students regularly exceed the limits of fair dealing is an odd tactic. The majority of fair dealing’s purposes are tasks implicitly and explicitly carried out every day in the course of educating oneself. And fair dealing is at its strongest in the hands of an individual — far from the modest 10% allowance of a work permitted in the guidelines, entire works are conceivably eligible for reproduction when a student or researcher chooses to delve into a subject. And when operating with supplemental material, the Supreme Court decision of last summer offers teachers strong support for standing in the shoes of their students. Until further details of this case come to light, nothing more can be said about the merits (or lack thereof) of Access Copyright’s claim.

All that is evident now is Access Copyright’s willingness to distort the operation of copyright to give their grievance a greater sense of pathos: “It’s harmful to arbitrarily take materials for free, without permission, without respect or regard for the sustainability of content essential for students and teachers alike.” Fair dealing is precisely the taking of materials for free, without permission. It ensures that copyright does not devolve into an instrument of absolute control, with the concomitant loss of creativity that would follow. And to suggest that fair dealing is responsible for the lack of “sustainability of content essential for students and teachers alike” ignores the behaviour of the publishing sector itself.

Which leads me back to Kirtsaeng. Next time.

Update – April 11: Howard Knopf has all the initial documents, including Schedule B, available at Excess Copyright.  But Schedule B only lists the works copied, no detail is provided as to what role those works played in the learning activity between the teachers and students.  Without more information, it is not possible to judge whether copying the works was infringement or fail dealing.

The state of Internet access in Canada has been the subject of considerable debate in recent years as consumers and businesses alike assess whether Canadians have universal access to fast, affordable broadband that compares favourably with other countries. A new House of Commons study currently being conducted by the Standing Committee on Industry, Science and Technology offers the chance to gain a better understanding of the strengths and weaknesses of Canadian high-speed networks and what role the government might play in addressing any shortcomings.

The study is ongoing, yet my weekly technology law column (Toronto Star version, homepage version) notes that two issues are emerging as key concerns: access and adoption. 



The access issue is no surprise as there are still hundreds of thousands of Canadians without access to broadband services from local providers. While this is often painted as an urban vs. rural issue (with universal access in urban areas vs. sparse access or reliance on pricey satellite services in rural communities), the reality is that there are still pockets within major cities in Canada without access to either cable or DSL broadband service.

Many of these communities are described as "uneconomic", since the costs associated with building broadband networks are viewed as too expensive given the expected return on investment. The government has funded some programs to foster improved access, however more may be needed to finish the job. This could include direct subsidies funded from revenues obtained through the forthcoming spectrum auction or tax relief for community-based broadband initiatives.

Interestingly, the committee heard opposition to such investment from Xplornet Communications, a satellite Internet provider focused on rural communities that appears to view public support for universal access as competition. It told the committee that the repeated efforts to help support broadband access in rural communities was the "definition of insanity" and that it was better for the government to stop "distorting the market" by allocating funding to communities that are otherwise viewed as uneconomic for service providers.

Even if those pleas are rejected, the committee will face the challenge of addressing a second, less discussed, problem with Canadian broadband: adoption. Policies aimed at achieving universal broadband access have typically adopted a "Field of Dreams" style approach in which it is assumed that "if you build it, they will come."

Yet the Canadian consumer and business experience to date suggests that this is not always true. On the consumer side, there are millions of Canadians with access to broadband networks, but who choose not to subscribe. The adoption failure is likely the result of many factors, however, the data indicates that there is a strong correlation between income and adoption.

Statistics Canada reports that 97 percent of Canadians in the top income quartile have access to the Internet in their homes, but that number drops to 54 percent for those in the bottom quartile. In other words, nearly half of all Canadians with incomes of $30,000 or less do not have ready access to the Internet and programs aimed at closing this gap are sorely missing in Canada.

An oft-overlooked problem is the poor adoption performance of Canadian businesses.  The Canadian Chamber of Commerce told the committee that 70 percent of small and medium sized businesses in Canada do not have a website. Moreover, Canadian firms are investing in technology at rates that are nearly half of those in the United States.

The government has acknowledged the concern (though it disputes the Chamber's figures), but has done very little to address it.  For example, a federal program aimed at helping get businesses online has a target of supporting only 600 firms with the hope that those companies might share their experiences with others through word-of-mouth.  Further, when asked about targets for adoption within the next two years, officials were unable to cite a specific figure.

The commonality between the shortcomings of access and adoption by both consumers and businesses is that the government has failed to articulate a digital strategy aimed at solving these problems. Until that happens, it seems likely that the Canadian digital divide will continue to expand. 

Posted by Jared Cohen, Director of Google Ideas and Jacquelline Fuller, Director of Google Giving
Human trafficking, the narcotics trade and weapons smuggling all have one major thing in common: Their ill-gotten proceeds feed conflict, instability and repression worldwide. Out of all of these, human trafficking is perhaps the most devastating, enslaving nearly 21 million people and generating at least $32 billion of illicit profits every year. At last summer's Google Ideas summit on mapping, disrupting and exposing illicit networks, it became clear that connecting anti-trafficking helplines in a global data sharing collaboration could help identify illicit patterns and provide victims anywhere in the world with more effective support. Today, Polaris Project, Liberty Asia, and La Strada International are receiving a $3 million Global Impact Award from Google to do just that. Building on our 2011 grants, this brings our total commitment to anti-trafficking efforts to $14.5 million.
Global Impact Awards support nonprofits that use technology to launch disruptive solutions in their sector. We launched the Global Impact Awards program last December to fund new ideas with a potential for huge scale. And at the Google Ideas INFO summit over the summer, we brought together technologists, leaders, and those with unique personal experiences — including former weapons brokers and survivors of domestic and international human trafficking — to look at illicit networks and their defining obstacles. By connecting technologists and experts with those who understand and have lived through trafficking situations, our discussion centered around a fundamental question: What if local, national, and regional anti-trafficking helplines across the globe were all connected in a data-driven network that helped disrupt the web of human trafficking?

Since the summit, we’ve worked with Polaris Project, Liberty Asia and La Strada International to make this concept a reality. These organizations exist to provide vital help to victims in need across the United States, the Mekong Delta region and Europe. Now, working across borders, this new Global Human Trafficking Hotline Network will collect data from local hotline efforts, share promising practices and create anti-trafficking strategies that build on common patterns and focus on eradication, prevention and victim protection. To enhance the participating organizations' ability to better share, analyze and act upon their data in real time, Palantir Technologies will expand on its existing relationship with Polaris Project by donating its data integration and analytics platform for this project. In addition, Salesforce.com supports Polaris Project's hotline center and is helping scale their call tracking infrastructure internationally.
Together, these partners will not only be able to help more trafficking survivors, but will also move the global conversation forward by dramatically increasing the amount of useful data being shared. Appropriate data can tell the anti-trafficking community which campaigns are most effective at reducing slavery, what sectors are undergoing global spikes in slavery, or if the reduction of slavery in one country coincides with an increase right across the border.
In the U.S., Polaris Project has collected data from over 72,000 hotline calls, helping local and national anti-trafficking communities better understand the dynamics of the crime. No such actionable hotline database has existed globally — but it doesn’t need to be that way. Clear international strategies, increased cooperation, and appropriate data sharing amongst anti-trafficking organizations will help victims, prevention efforts, and sound policymaking. Slavery can be stopped. Let's get to it.

Evidently, Microsoft and its proprietary friends didn't get the result they hoped for from their first antitrust complaint against Google to the EU Commission. The latest news is that the first one is being amicably resolved, according to the New York Times. Instead of saying to themselves, I guess we were wrong, instead Fairsearch, the Microsoft-led group that seems to have no other reason for being but to attack Google, files another antitrust complaint.

And when someone files a complaint with the EU Commission, it has to consider it. So it will.

Here's what the new complaint is about, or says it's about: FairSearch's complaint is that "Google uses deceptive conduct to lockout competition in mobile" - by, specifically, requiring OEMs that use Android to pre-load a suite of Google services and give them "prominent default placement" on the device in order to also get access to "must-have Google apps such as Maps, YouTube or Play". By doing this, FairSearch argues that Google "disadvantages other providers, and puts Google's Android in control of consumer data on a majority of smartphones shipped today", adding that this "predatory distribution of Android at below-cost makes it difficult for other providers of operating systems to recoup investments in competing with Google's dominant mobile platform"....

"Google is using its Android mobile operating system as a 'Trojan Horse' to deceive partners, monopolize the mobile marketplace, and control consumer data," said Thomas Vinje, Brussels-based counsel to the FairSearch coalition, in a statement. "We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google's Android operating system." That is preposterous, and I'll tell you why. But what I do want the EU Commission to think about is this: is this constant attack on Google itself a result of antitrust schemes by the old guard to destroy the new kid on the block? What? Microsoft would never do anything mean or underhanded? Puh lease.