Michael Girard: e-Lawg - IP

Newspaper Breach of Freelancer's Copyright

Fri, 08 Oct 2004 03:17:40 GMT

In Robertson v. The Thompson Corporation, the Ontario Court of Appeal had to consider whether a newspaper that placed an article from the paper written by freelance writer in two electronic databases violated the writer's copyright.

The Court stated:

"I agree with the motion judge that the Globe prima facie infringed the freelance author’s copyright. In order to fall within the Globe’s collective copyright, the reproduced database must have constituted the newspaper, “or any substantial part thereof in any material form whatever”. Since I conclude that a database is not a newspaper and that what the Globe reproduced did not have the qualitative aspects of a substantial part of its newspaper, the Globe’s cross-appeal on this issue must fail."

Doctorow on DRM

Mon, 21 Jun 2004 02:59:32 GMT

Cory Doctorow's notes on his presentation to Microsoft on DRM.

BlogsCanada Told to Cease and Desist

Fri, 16 Apr 2004 03:38:13 GMT

BlogsCanada site has been sent a cease-and-desist letter from the Canadian Department of Justice for alleged copyright violation. The site mimics the the Government of Canada Website.

CRIA Appeals Music File Swapping Decision

Wed, 14 Apr 2004 23:41:01 GMT

CRIA filed a Notice of Appeal in BMG Canada v. Doe. Previous post on the decision here. It is likely that the Copyright Act will be amended by the time this matter is dealt with.

Canadian Heritage Minister Vows to Make Downloading Music Illegal

Wed, 14 Apr 2004 00:38:30 GMT

The Globe and Mail carries an article covering the Heritage Minister's announcement that the government will move quickly to amend the Copyright Act to make downloading music illegal.

Canadian Parliament Rejects Copyright Extension

Wed, 07 Apr 2004 01:14:51 GMT

A Bill, which had included a provision to extend copyright protection for the unpublished works of dead authors, was passed today without the copyright provision. The Bill would have extended copyright protection until the year 2017. The Bill would largely have benefitted the heir of Lucy Maude Montgomery, author of Anne of Green Gables.

It is interesting to contrast the Canadian government response to a request for copyright extension to protect a Canadian icon with the U.S. government response to extending the protection for Mickey.

If the purpose of copyright is to encourage the creation of works, it is difficult to see how protection of unpublished works more than 60 years after the artists death, accomplishes that objective. Does a person contemplating writing a book or creating a cartoon character think, "Oh why bother, this is going to go into the public domain 60 years after I am dead and buried".

Globe & Mail CBC Lessig Approves

Critique of Music Industry Approach

Tue, 06 Apr 2004 01:18:45 GMT

Tyler Hamilton has a story in the Toronto Star providing some insight into the music industry's approach leading to its recent loss in Federal Court.

That Didn't Take Long

Sun, 04 Apr 2004 16:28:06 GMT

The Federal Heritage Minister announced at the Juno Awards that she would be moving to make changes to Canadian copyright law. The changes are to address music file downloading on the internet. This took less than one week after the Federal Court ruled that downloading music does not violate the Canadian Copyright Act.

ISPs Do Not Have to Disclose Names of Alleged File Swappers

Thu, 01 Apr 2004 01:40:37 GMT

A momentous decision was released today by the Honourable Justice von Finckenstein of the Federal Court of Canada in BMG Canada Inc. v. Doe (decision here). The Court held that ISPs will not be compelled by the Court to disclose the names of subscribers alleged be involved in music file swapping. (see previous posts on this case here, and on the motion, here). This spells the end of RIAA type actions against music file sharers in Canada (subject to the inevitable appeal).

There were several important findings that are going to have a significant impact on technolegal development in Canada.

In dealing with whether the CRIA had met the onus of establishing a prima facie case, the Court held that "neither the affidavits nor the crossexamination of Mr. Millin provide clear and comprehensive evidence as to how the pseudonyms of the KaZaA or iMesh users were linked to the IP addresses".

The Court also held that "downloading a song for personal use does not amount to infringement" relying on Copyright Board of Canada, Private Copying 2003-2004 decision, 12 December 2003 at page 20.

The big issue to be addressed was whether having a file in a shared directory amounted to distributing or authorizing infringement. The Court held:

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service."

As had been suggested in an earlier e-Lawg post, CCH Canada Ltd v. Law Society of Canada had a significant impact on the development of law in this area:

"As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement. I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing."

"The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying."

The Court also addressed the issue of privacy and anonymity, relying on Irwin Toy v. Doe (2000), 12 C.P.C. (5th) 103 (Ont. S.C.J.) stated at paras. 10-11:

"Implicit in the passage of information through the internet by utilization of an alias or pseudonym is the mutual understanding that, to some degree, the identity of the source will be concealed. Some internet service providers inform the users of their services that they will safeguard their privacy and/or conceal their identity and, apparently, they even go so far as to have their privacy policies reviewed and audited for compliance. Generally speaking, it is understood that a person's internet protocol address will not be disclosed. Apparently, some internet service providers require their customers to agree that they will not transmit messages that are defamatory or libellous in exchange for the internet service to take reasonable measures to protect the privacy of the originator of the information.

In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy. As far as I am aware, there is no duty or obligation upon the internet service provider to voluntarily disclose the identity of an internet protocol address, or to provide that information upon request."

This is a huge loss for the recording industry. It will no doubt be appealed and we will likely see significant lobbying efforts for legislative changes. But for now, it appears that people in Canada are free to download music for personal use.

Recent Supreme Court Decision May Influence Internet Copyright Issues

Tue, 23 Mar 2004 04:41:18 GMT

The Toronto Star carries a review of the decision in The Law Society of Upper Canada v. CCH Canadian. See e-Lawg post on the decision here.

Michael Geist suggests that this decision will have a significant impact on copyright issues currently arising on the internet. The decision holds that providers of equipment are entitled to presume their equipment will be used lawfully. ISPs and even peer-to-peer providers may be able to argue they too legitimately presume their subscribers act lawfully and cannot be said to authorize copyright infringement.

The case is also important in that it reviews the fair dealing exception and it talks of users' rights and the need to balance rigorously the interests of creators and users.

ISPs Oppose Release of Information on IP Addresses of Alleged File Swappers

Sun, 14 Mar 2004 14:12:55 GMT

The action by CRIA (an entity owned by the big five record labels) against alleged music file swappers continued this week. They were in court attempting to compel the ISPs to disclose the identity behind the 29 IP addresses alleged to be swapping music files.

Four of the five ISPs involved are opposing the motion. They argued that the IP addresses will not necessarily identify the individuals involved. An IP address represents a unique computer on the internet. What it does not do is identify who was using the computer at any particular time. It could be analogized to a telephone number. Knowing who the telephone number belongs to will not tell you who was using it at any particular time.

It was also argued that CRIA cannot establish that any copyright infringement took place. The fact that a KaZaA user has music files on his computer in Canada does not establish copyright infringement. The Copyright Act permits copying of music for personal use. See discussion in a previous post.

The issue is whether Canadian privacy rights should be trumped by allegations of copyright infringement where the disclosure may not be conclusive and the plaintiff cannot establish the copyright infringement occurred.

Justice Konrad von Finckenstein of the Federal Court heard arguments this week. No decision has been released yet.

For a discussion of IP addresses see p2pnet.

CanadianPress Globe & Mail CBC News CTV P2Pnet

Supreme Court of Canada Rules on Copyright and Users' Rights

Fri, 05 Mar 2004 01:07:58 GMT

The Supreme Court of Canada today released a significant decision that is being widely commented on south of the border. In CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Court had to deal with the issue of the Law Society of Upper Canada offering a custom photocopy service for lawyers. Legal publishers argued that this violated their copyright.

The Court, in a unanimous decision, held that the copyright holders interests must be balanced with the the users rights. The case reports were considered original works because they included such things as headnotes, case summary, topical index and compilation. As such, they were protected by copyright.

The Federal Court of Appeal had concluded that the Law Society, by providing a photocopier in the library, implicitly sanctioned, approved or countenanced infringement of the works. The Supreme Court overturned this decision stating:

First, there was no evidence that the photocopiers had been used in a manner that was not consistent with copyright law. As noted, a person does not authorize copyright infringement by authorizing the mere use of equipment (such as photocopiers) that could be used to infringe copyright. In fact, courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. Although the Court of Appeal assumed that the photocopiers were being used to infringe copyright, I think it is equally plausible that the patrons using the machines were doing so in a lawful manner. (italics added)

In dealing with copying service itself, the Court stated that the act should be a large and liberal interpretation to ensure that users' rights are not unduly constrained:

"Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained. I agree with the Court of Appeal that research is not limited to non-commercial or private contexts. The Court of Appeal correctly noted, at para. 128, that "[r]esearch for the purpose of advising clients, giving opinions, arguing cases, preparing briefs and factums is nonetheless research". Lawyers carrying on the business of law for profit are conducting research within the meaning of s. 29 of the Copyright Act.

The Court concluded that the use by the Law Society and the lawyers of the copyrighted material constituted fair use.

This decision could well have wide reaching impact, particularly in upcoming legal battles over digital and online material.

Further comments Michael Geist, Copyfight: The Politics of IP, Open Access News

Wed, 03 Mar 2004 03:57:15 GMT

The biggest techno-legal issue in Canada now is the Canadian Recording Industry Association (CRIA) action against 29 alleged music file swappers. All the alleged swappers used KaZaa. The Statement of Claim is here. While this action would seem similar to the RIAA actions in the United States, there are some different hurdles to be overcome due to Canadian legislation.

Canada does not have the equivalent of the DMCA. To obtain the names of the alleged file swappers, CRIA will have to obtain an order from a court. They have brought a motion seeking to compel the ISPs to disclose the names of their subscribers who are alleged to have been involved. Some of ISPs have advised they will oppose the motion.

The Canadian Internet Policy and Public Interest Clinic (CIPPIC) and Electronic Freedom Canada(EFC) were both granted leave to intervene on March 1, 2004. It appears that there will be a thorough review of the competing public policy issues in this action. The motion will raise issues under Canada's privacy legislation PIPEDA.

Even if CRIA is successful in obtaining the names of the alleged file swappers, they will still have to confront section 80 of the Copyright Act which provides for personal copying for private use:

"80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer's performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording."

While the Act would seem to cover downloading of music files, it may not cover making files available for uploading by others.

The action is in its infancy. It will certainly have an impact on the development of internet and privacy law in Canada.

Sat, 01 Nov 2003 15:42:10 GMT

Canadian copyright bill passes. An article, "Copyright bill passes", by James Adams, is on page R3 of the Review section of today's Globe & Mail. Two excerpts: "An amended version of the so-called "Lucy Maud Montgomery provision" has been passed by a vote in the House of Commons. MPs approved third and final reading Tuesday of Bill C-36 ...". [The legislation still requires Senate approval]. "In the compromise version of the bill passed this week, copyright was extended until only the end of 2006. However, this three-year extension now applies to the unpublished works of any person who died before Dec. 30, 1948". [Open Access News]

Wed, 08 Oct 2003 21:09:49 GMT

$19 Million in Punitive Damages For Internal Distribution of Newsletter. A Baltimore jury has awarded a financial publisher, Lowry's Reports $19 million in punitive damages (and $800k in direct damages), for Legg Mason's internal distribution of a newsletter (subscription price - $700) on its intranet. Via MSNBC via TechLawAdvisor. [The Trademark Blog]

Fri, 19 Sep 2003 13:44:00 GMT

Filesharing: Only in Canada?. Dave Pollard tips us to this, at first incredulous but on closer takes quite credible claim that P2P file sharing is quite legal in Canada. The trick comes under the definition... [TeledyN]

Tue, 16 Sep 2003 20:41:52 GMT

Canada Immune From RIAA? [Slashdot]

Canada may get its own Windows version of iTunes

Tue, 16 Sep 2003 14:33:03 GMT

A Toronto based company Moontaxi Media Inc. has signed up most of the Canadian record label companies to launch a downloadable music service this fall. Apparently it proposes to distribute the music in Windows Media Audio files.

Mon, 15 Sep 2003 18:25:39 GMT

RSS and Commercial Aggregators. RSS has come to the forefront again in the past few days, but instead of being the center of controversy, it seems that this time there are efforts being made to learn and expand on it. I think its become completely apparent to everyone in the weblogging community that the efforts to replace RSS have completely failed, so now everyone's regrouping and seeing what they can do with the only real syndication spec that exists.

First there's Sam Ruby's great presentation he gave yesterday. Then Diego got his MT to produce unfunky RSS 2.0. Then there's Jeremy's thoughts today on extending RSS Autodiscovery for large sites. While I was perusing this stuff, I found this great RSS tutorial/overview and this one as well which really helped me grok RSS (1.0 and 2.0).

Rocking. I get it. I'm pretty sure I got it a while ago, but with so much flak flying around the blogoshere, things started getting a bit fuzzy in my brain. Nice to have a review and to get up to date. It was interesting to me tonight to find out that both Yahoo and Microsoft are using RSS 2.0 feeds. That to me pretty much clears that question up. RSS 2.0 has won. Anyone who's creating a new feed tomorrow will probably choose that spec over any other. It was a brilliant end run by Dave Winer, if you think about it, but he got it done. That's a hell of a lot more than you can say for the SyndiWiki efforts which months later is still mired in pointless bickering. The fact that there's no name yet signifies to me everything.

Alright, bygones. Continuing...

Okay, so now I was reading Jeremy's blog tonight and at the bottom of his post, he links to this complete fucking asshole who is threatening to invoke the DMCA on anyone who aggregates his content in a commercial setting. He actually has a point, which I'll get to in a second. The problem I have is that he justifies his rantings using the DMCA, which is one of the most repelling pieces of legislation that exists. He is, and will remain, a complete shit for even uttering those letters.

But like I said, he does have a point. Copyright law is very simple: You create something and its yours. It's not a trademark, or a patent, but a copyright. It's automatically given to you when you create something and if anyone wants to use your content for any reason, they need to ask you. Things like the Creative Commons license and the Gnu license *do not* supersede this basic right. You create something and its yours and you get to do what you want with it, but others need to ask. Period. I see developers all the time get confused about this - they wonder if they can change a license on their work after they've published it. It's *YOUR* copyright, you can do *whatever* you want with it. Licenses are for others.

So this guy is basically saying that all commercial aggregators are illegal, and I think he's right. That includes My Yahoo, BlogLines, MyWireService, etc. You can't take for granted the fact that the content is out there in an RSS format made for syndication. It doesn't matter. In reality it's no more or less formatted than these words are right now. If you want to republish or use someone else's copyrighted material, you have to get permission. Period. That's how it works, digitally packaged up or not. And it doesn't matter if the aggregator is free or not, if it is re-publishing the content (i.e. not from the original source) it's against copyright law.

In the comments he made a great point that TV stations broadcast their shows, but if someone took a feed and started republishing NFL games onto the internet for example, there'd be hell to pay. And in fact, exactly that has happened. It's a good point. The only one thing I can say against it is that TV shows constantly and routinely *remind* you of this fact. Every DVD has that annoying 20 second WARNING, every NBA game has reminders throughout that the NBA owns the copyright to the images and event, etc. But they don't have to do that. Just like you don't *have* to put a (c) on your work to have it automatically copyrighted. It's yours as soon as you create it. Check out 10 copyright myths for clarifications.

So the question is, now what? That's what Jeremy asked at the bottom of his article. Basically, it's a matter of permissions, which the Creative Commons was created to do, so that's great, now we need to integrate that into RSS. But the main point is that if there is *no* permission specifically granted, that means *no* aggregation. It all depends on how you word the permissions as well. If you say "I allow this content to be aggregated" that seems okay, but if you say "I allow this content to be presented on a commercial website" I'm a little less likely to want to participate.

Ready for this weird-ass solution? RSS itself is copyrighted. If *in the license* to use RSS, it's *required* to allow syndication of that content for personal and commercial services, that might solve this problem right? Though like I said before, licenses don't circumvent copyright law, this might make it clearer to everyone what the intent and purpose of RSS syndication is.

Okay, that's my rant for the evening.

-Russ

Comment

[Russell Beattie Notebook]

Tue, 02 Sep 2003 01:18:01 GMT

Block the RIAA. You have a firewall to keep out hackers, so why not have a firewall to keep out the RIAA? Kevin Rose says if you're running Windows, PeerGuardian does just that. PeerGuardian is a free program that hides your file sharing from known RIAA informants.

Related: Music Industry Methods Revealed
"Using digital fingerprints, or 'hashes', investigators say they can tell if an MP3 file was downloaded from an unauthorised service. The industry also tracks 'metadata' tags, which provide hidden clues about how files were created. " [Tech Law Advisor]

Tue, 02 Sep 2003 01:11:33 GMT

More on the Lucy Maud Montgomery bill....W.J. McLe .... More on the Lucy Maud Montgomery bill....W.J. McLean, The Impact of Bill C-36 on the Archival Public Domain. A detailed look at a bill that would extend the term of Canadian copyright for a certain class of works --namely, previously unpublished works by authors who died between 1930 and 1948 inclusive. Groups defending the public domain oppose the bill. The only apparent supporters are the heirs of Lucy Maude Montgomery, author of the book series about Ann of Green Gables. The bill may be debated in the Canadian Parliament as early as this month. (Thanks to Klaus Graf in Archivalia.) [Open Access News]

Mon, 25 Aug 2003 13:32:49 GMT

File Sharing and Downloading in Canada [GrepLaw]

Tue, 12 Aug 2003 19:56:03 GMT

Stop the DirecTV Dragnet!. In the past year or so, satellite TV giant DirecTV has sent ominous letters to an estimated 100,000 individuals, accusing them of purchasing "illegal signal theft equipment" and "pirate access devices" and threatening to haul them into court for stealing DirecTV. The letter tells the unlucky recipients that the prospect of a pricey legal battle will go away if they pay up, to the tune of $3,500 in most cases. Yet, in too many cases, the receipients of the letters have never intercepted DTV's signal. They merely possess smart card technology. Without proof of a violation of law, DTV's unsubstantiated threats to sue are an abuse of the legal system. But DirecTV hasn't stopped there. They have filed over 9,000 lawsuits against purchasers of smartcard technology, employing an army of lawyers to squeeze even more costly settlements out of individuals nationwide. Ask your Members of Congress to initiate an investigation into DirecTV's misuse of the law and blatant disregard for the public's right to use technology. [EFF: Action Center Alerts]

Tue, 12 Aug 2003 15:53:31 GMT

9th Cir: Tort of Conversion Applies to Domain Name Under California Law. In Kremen v. Online Classifieds, Inc. and Network Solutions, Inc. (9th Cir 2003) the Ninth Circuit Court of Appeals found that a domain name is intangible property to which the tort of conversion applies under California law, reversing the contrary... [Unintended Consequences]

Tue, 12 Aug 2003 14:09:22 GMT

Distrifringement.

Have you ever worked at a company where unauthorized copies of third party subscription newsletters and alerts were made and distributed? I'm betting you have, and maybe still do. A Maryland district court recently considered such practices on cross motions for summary judgment, in Lowry's Reports, Inc. v. Legg Mason, Inc. (PDF). [Via ILN] The case involves a financial services firm's intra-company distribution of market analyses and news contained in the paid-subscription-only Lowry's Reports. One employee in Legg Mason's research department had a subscription to the reports, which then were disseminated through the firm by way of a "morning call" to all brokers, as well as via email and intranet. The short version of the court's lengthy analysis is that the email sends and intranet postings either did or could be found by a trier of fact to constitute copyright infringement, and that enhanced statutory damages for willful infringement remained a possibility at trial, despite Legg Mason's express company policies against unauthorized and unapproved distribution of third party works. Go have yourself a read, it's a nuanced decision with potentially broadly applicable reasoning and facts, and a detailed analysis of the fair use doctrine in the business context. Lowry's has more about the dispute on its Web site.

[Bag and Baggage]