Laurel L. Russwurm's Free Culture Blog

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Archive for the ‘Government’ Category

Double Standard: Bill C-11

with 3 comments

“Bill C-11 contains an “enabler” provision which currently states, “It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.”  — Russell McOrmond Is Bill C-11 related to SOPA/PIPA?

Pardon?

If it’s an infringement to provide a service the person knows or should have known is designed primarily to enable acts of copyright infringement IF AN INFRINGEMENT OCCURS…

Wait: does that mean it isn’t an infringement if no one actually infringes?

brothers keeper

Hum.  It appears that Bill C-11 is straying pretty far afield for copyright law.  And sounds pretty dependent on what other people do.

from elbow to clenched fistIt is reasonable for me to be responsible for my own dog, because I have control of my own dog. If my dog bites the letter carrier, it is my responsibility.

But I would not be liable if someone else’s dog bit the letter carrier.

Or what about “the person knows or should have known” …. Well. We all make mistakes. Who can know what anyone else will do?

If rent out a building to a tenant who cooks up methamphetamine in the basement, or takes pot shots at passersby out the window… is this then my responsibility?  After all, it’s my building. It’s in a bad neighborhood so I should have known renting it out might make it possible for badguys to do bad things.

Think about it.

“…the person knows or should have known is designed primarily to enable acts of copyright infringement…” If the design of the thing is to primarily enable bad things… why don’t we make laws like that for anything in the real world?

Guns

revolver in a caseMany perfectly respectable stores like Canadian Tire sell guns. In a pinch, you could use your handgun to drive a nail, but that isn’t what it was designed for. A gun is a weapon that is clearly designed to put holes in things. Quite often, guns are used to put holes in people. And guns can and are used in a commission of a crime far more serious than copyright infringement.

Yet no one is suggesting gun manufacturers be held responsible for crimes committed with the guns they made.

In the real world, this kind of preventative lawmaking is not the practice in Canada.

Drugs

a baggie of tea stands in for marijuana, on a pizza box, with matchbook. Recreational drug use has been illegal in Ontario throughout my life, yet there are whole stores devoted to selling the attendant paraphernalia. It is perfectly legal for “head shops” to sell hookahs and bongs openly on the main shopping street of law abiding cities like Waterloo. And these devices are most certainly designed to enable acts of illegal drug use.

Any tool can be used for good or ill, as Cory Doctorow recently pointed out with his suggestion that wheels should be outlawed since wheeled vehicles allow criminals to flee from the scene of the crime. A hammer is a wonderful tool for driving nails, and yet a simple hammer can double as an effective weapon since it is easy for anyone to wield.

In the real world, we don’t arrest people for thinking dangerous thoughts or manufacturing goods or creating a service that someone else might use to break laws. We don’t hold innocent people responsible for the crimes of others.

The legal standards for citizen protection must be the same both online and off. Yet Bill C-11 lowers standards for citizen protection in Canada.

And that’s wrong.


Image Credits
gun by Whizzer released under a creative commons Attribution 2.5 Generic (CC BY 2.5) License

All other images are my own, released under a Creative Commons Attribution license by laurelrusswurm

Written by Laurel L. Russwurm

February 10, 2012 at 3:23 am

Copyright Update: C-11 and ACTA

with 2 comments

Canadian DMCA logo

Fortunately Bill C-11 has not yet become law.

Yet.

Unfortunately it is only a matter of time before our majority government passes this misguided “copyright modernization” legislation currently called Bill C-11.

[This is the exact same law that was called Bill C-32 by the previous Conservative Government. Earlier incarnations were known as Bill C-61: An Act to amend the Copyright Act (by the Conservatives), and Bill C-60: An Act to amend the Copyright Act (by the Liberals).]

Although Canadians have mounted waves of opposition against each succeeding incarnation of a “Canadian DMCA,” both Liberal and Conservative Canadian Governments have attempted to pass copyright legislation that’s clearly against Canadian interests.   Initially there was only supposition that the various drafts of a “Canadian DMCA” were produced in response to American pressure.  After all, the USTR has been spreading misinformation about supposed Canadian piracy for years, in spite of the fact that the American DMCA has not stopped American digital piracy levels from being far higher than ours.   Thanks to Wikileaks it is no longer an unsubstantiated guess: the Canadian government wants only to pass a Copyright Law that will make the American Government happy.

Four different Canadian Governments led by our two traditional ruling parties have tried to accomplish this, the previous efforts failed due to a combination of opposition and politics.

But this time it is different: our majority Conservative Government can pass anything it likes.

The only possible way to stop it is for public outcry.  The problem is that most Canadians still don’t know this is happening or why it is important or what it will do.  The mainstream media coverage has not helped raise awareness because their corporate masters have a vested interest; after all, the MPAA and RIAA (through its branch plant formerly known as CRIA) have a very long reach.

TPM, DRM, Digital Locks

DRM technologies attempt to give control to the seller of digital content or devices after it has been given to a consumer. For digital content this means preventing the consumer access, denying the user the ability to copy the content or converting it to other formats. For devices this means restricting the consumers on what hardware can be used with the device or what software can be run on it.

Wikipedia: Digital rights management

The single reason that Bill C-11 will be so devastating is that it sets TPM (Technical Protection Measures) as the most powerful element of Canadian copyright law.   TPMs (also known as copy protection) are the main weapon used in the DRM (Digital Restrictions Management) arsenal, and are commonly referred to as “Digital Locks” in Canada.

Whatever you call it, it will be terrible for Canadians.   It won’t matter if a person has legally purchased a copy of an eBook,  game, a movie or music, if Canadians need to circumvent TPMs in order to read, play watch or listen to our own legal copies, we will be breaking the law.  If I want to watch a movie DVD on my Linux computer, I won’t be able to.  Linux users will be forced to switch to Apple or Windows operating systems of they want to watch their DVDs.  If I want to format shift any digital media I’ve purchased so that it will play on the device of my choosing, I won’t be able to without breaking the law.

Does this mean it will be illegal to have my printer’s ink cartridges refilled with off brand ink? Probably. I was foolish enough to buy a printer that has computer chips in its printer cartridges. The chip tells the printer not to work because a certain amount of ink has been used or the printer cartridge is too old. Bypassing that programming may well be considered circumvention of the manufacturer’s technical protection measures. After all, to be protected under the new Bill C-11 Copyright Law, TPMs won’t have to be tied to any actual copyright infringement or criminal wrongdoing.

This is not a good thing for consumers.

Once this law is passed, I imagine that it will be only a matter of time before every digital device and most software destined for the Canadian market will be tightly locked in DRM.  Further, as a self publishing Canadian writer, my further concern is also that digital locks may well be used to limit distribution of my own work.

Why did Canada sign ACTA?

The speed with which digital innovation and the Internet have set the world on end is unprecedented; even Malcolm Gladwell, one of Canada’s brightest sons doesn’t get it. So I’m inclined to think that the largest problems is that most of our government doesn’t understand the issues.

It is unreasonable to expect elected officials to understand everything. They are only human, after all, and so they can’t. What they must do, is to find out about each issue as it arises, and the fastest way to do this is to consult with the experts. The problem that has arisen is that the experts governments the world over rely on when forging laws to govern this new technology are the mainstream media. And the mainstream media has a clear and present interest in both copyright and and controlling technological innovation.

It is very possible that C-11 is intended as a law to allow Canadian compliance with the dreadful ACTA Trade Agreement.

The world wears Mouse ears and reads ACTA attacks Internet is the La Quadrature Du Net ACTA Logo

ACTA is one more offensive against the sharing of culture on the Internet. ACTA (Anti-Counterfeiting Trade Agreement) is an agreement secretly negotiated by a small “club” of like-minded countries (39 countries, including the 27 of the European Union, the United States, Japan, etc). Negotiated instead of being democratically debated, ACTA bypasses parliaments and international organizations to dictate a repressive logic dictated by the entertainment industries.

ACTA, a blueprint for laws such as SOPA and PIPA, would impose new criminal sanctions forcing Internet actors to monitor and censor online communications. It is thus a major threat to freedom of expression online and creates legal uncertainty for Internet companies. In the name of trademarks and patents, it would also hamper access to generic medicines in poor countries.”

La Quadrature Du Net

Although Canadian negotiators were included in the secret ACTA treaty negotiations, sitting members of parliament and the public were deliberately kept in the dark as to what ACTA was about. Although ACTA is supposed to stand for “Anti-Counterfeiting Trade Agrement” the prime reason for its secrecy was the copyright law provisions.

Among those who are aware of ACTA, its agenda is believed to be that of the American movie and music industries. These Industries have been investing unprecedented amounts of time and money in attempts to coerce sovereign nations around the world to enact copyright laws beneficial to their special interests.

In spite of the fact that the final round of ACTA negotiations failed to achieve consensus in the secret negotiations, some time later Canada went ahead and signed the treaty anyway. The European Parliament signed ACTA a few days after the SOPA protest, but it must pass a plenary vote this summer before it will be official.

Oh! Canada: Memo to World: Stop ACTA Now!

Stop The Canadian DMCA

NO Canadian DMCACopyright law has always been concerned with Intellectual Property, but Bill C-11 strays into the realm of physical property. A law that prevents citizens from making personal use of our own legally purchased media on the digital devices of our choices strays beyond the realm of intellectual into the realm of physical property. Making all circumvention illegal is equivalent to putting citizens in jail for breaking into our own home of we’ve inadvertently locked ourselves out.

Bill C-11 is *not* in the Canadian interest.

More information can be found in my Oh! Canada article
“Bill C-11 Backgrounder: A Brief History of the Canadian DMCA” and What to do about Bill C-11 ?

Technical Aspects: check Russell McOrmond’s Conservative Copyright Bill C-11

Legal Aspects: Michael Geist – latest post includes the video short Strombo’s Soapbox: My Take on Bill C-11

Bill C-11 Status

Keep up with the status of this problematic draft legislation by checking LEGISinfo.

where are all the women?

with 4 comments

What I want to know is, why aren’t more women involved in politics?

Or the sciences?  I just listened to my first “Free As in Freedom” podcast which turned out to be a conversation between two free software legal eagles @bkuhn and @Kaz discussing gender inequity. I was surprised to learn that Karen Sandler feels insecure about public speaking, since this amazing woman gave one of the most powerful free software talks I’ve been privileged to see, “Free Software on Medical Devices: Unchain My Heart”

gender equality

Marlo Thomas

What happened to the world I grew up in?

You know, the one I’m talking about, the one  that was ushering in gender equality?

As a teen I felt empowered by the classic Marlo Thomas television special “Free To Be, You and Me” My high school drama department class even mounted Free To Be You and Me as a show.

socialization

When I was a kid, my favorite team sport was soccer, and that turned out to be the sport my son wanted to participate in. He loved the game, and played for fun in the co-ed “house league” throughout his public school years.  But when he was in high school, the league began segregating the younger teams according to gender. I asked why, and was told it was to make sure that girls got to play as much as the boys.

That’s a shame.

I don’t think such a policy is particularly good for either boys or girls.  Some of the best soccer players my son played with were girls.  As a parent watching all the games, I always saw at the beginning of each season, there were always some boys and some girls who seemed a little uncomfortable playing together.  Boys wouldn’t pass to girls, for instance. And maybe some of the girls lacked the confidence to fight boy players for possession of the ball.  But by the end of every season, every year,  the boys and girls were working together. It was necessary if your team was going to have a shot at winning. And the one thing that the boys and girls had in common was the desire to win.

Segregating the teams by gender might make it easier for girls to play the game, but does them no favors for later. There are few career paths available to women that are devoid of men, outside of nunneries.   From my perspective, the most important thing to come out of co-ed soccer was an opportunity for boys and girls to work together and discover they are all people.

Maybe if we had more of that in the places where we socialize our kids, we would have more women in politics.

When it comes to online social networks, particularly the ones seeking to bring about social justice, there certainly seem to be at least as many women fighting for change than men.  Maybe more.  When you look at any political party, how many of the rank and file, the volunteers, the workers, are women? So why aren’t women more involved in making policy and governance?

Capital “F” feminism

Liberal Aboriginal Affairs critic Dr. Carolyn Bennett

I used to consider myself a feminist, until I became disillusioned when the feminist movement seemed to be less about gender equality and more about a power reversal to seize the power that men traditionally held.  So I stopped thinking of myself as a feminist, even though I think that everyone should have equal rights, regardless of gender, skin colour, sexual orientation, or planet of origin.

Every human should have equal rights, no matter what our differences.  Period. Does that make me a humanist? Human, anyway. But today I’m considering gender.  I realize now I was lucky to grow up in a large family where the girls and boys were treated pretty much equally, with a father who was very supportive of whatever any of us wanted to do or be.

Men and women are all people, we all make mistakes, and you can’t generalize about an entire gender.  Sometimes men behave badly, but women aren’t any more perfect than men.  Blaming everything that’s wrong in the world on one gender or the other doesn’t help. Blaming doesn’t generally fix anything.   Clearly some of the women who have become political leaders have been terrible, just like some male political leaders.  It’s even possible that women might screw up even worse that men when it comes to governing nations, maybe because of the way we have been socialized or simply because we lack experience.  I don’t know.

Cathy MacLellan, 2009 and 2011 Kitchener-Waterloo Green Party Candidate

As a woman, I’ve tended toward female medical professionals whenever a choice is possible.  The wonderful Toronto Women’s College Hospital came into existence to ensure women received proper medical treatment; but the female obstetrician who worked out of WCH was more paternalistic than any male doctor I’ve ever seen.  When I asked her questions – pregnancy was a new experience for me – she ordered me to stop reading and to just do as I was told.  So in my third trimester I switched to a male obstetrician (and this is unheard of) to make sure I would deliver my child across the street at Mount Sinai.

Men and women are different. 

Well, of course we are.  People are different.   We all have different strengths and weaknesses.  We don’t always have the same goals, we often want different things.  There are some things men seem to do better as there are some things women seem to do better.  And it’s hard to know what gender differences are due to nature and which are due to nurture.  But a lot of those things are from the the way we socialize our children.

democracy

Democratic government is all well and good, but in order to be truly representative, a democratic government really should come close to reflecting the populace.  If you look at the Members of Parliament who are supposed to represent us at the federal level, that isn’t anywhere close to the case gender wise.  Although the Canadian population is slightly more than 50 percent female, the House of Commons is barely managing 25% women.  Well, 24.7 since the most recent Federal election.

What Canada actually has is a Conservative Party majority government. Yet only 17% of Conservative MPs are women. Lets look at the breakdown within each party:

Canadian Government gender breakdown of 307 federal seats in the House of Commons (one seat is vacant) at 25 January, 2012 ... Conservative Party of Canada has 83% - men with 138 seats (83.1325%) 17% - women with 28 seats (16.8674%) ... the Liberal Party of Canada has 82% - men with 28 seats (82.3529%) and 17% women with 6 seats (17.6470%) ... the Bloc Québécois has 75% men with 3 seats (75%) and 25% women with 1 seat (25%) ... the Green Party of Canada has 0% men with 0 seats (0%) and 100% women with 1 seat (100% ... ... the New Democratic Party of Canada has 61% men with 62 seats (60.7843%) and 39% women with 40 seats (39.2156%)

In total, Canada currently has 76 (or 24.7%) women sitting in the House of Commons.

    • 40 of them (or 13%) are from the NDP,
    • 28 of them (or 9%) are from the Conservative Party,
    • 6 of them (or 2%) are from the Liberal Party,
    • 1 of them (or 0.3%) is from the Bloc Québécois, and
    • 1 of them (or 0.3%) is from the Green Party.

So although the numbers are up for women in government, only 9% are in the majority party. And of the five national political parties represented in our government, only the Green Party has a woman leader.

Canada has only had one female Prime Minister, whose term ran for mere days as she was appointed and left holding the bag for Brian Mulroney’s misguided policies. Campbell would probably have done a better job than Mulroney had she got the position at the beginning rather than the end. (Admittedly, my cat could have done a better job than Brian Mulroney…)

Fairvote Canada's Anita Nickerson

Fairvote Canada‘s Anita Nickerson told me that Canada has “basically been at a “glass ceiling” of 20-22% women for the past 20 years.” What changed in the last Federal election was that the “Orange Crush” bumped up our gender numbers dramatically up from 22%. The NDP commitment to gender equality has led to policies that have resulted in more female candidates, and thus more women in our government. During the last provincial election I learned that the NDP will only run a male candidate if there are no women willing to take on the riding. Yet even with this policy, it is clear that the NDP has only managed 40%.

Personally, I wouldn’t vote for any candidate based on gender. You can have good or bad candidates. My goal in voting in any election is to vote for the person I believe will do the best job, so I would certainly never vote for a woman who did not inspire my confidence.

But still, it is a problem. If women aren’t represented in our democratic government, the laws made by that government are unlikely to be in our best interests. That is a problem.

This isn’t only a Canadian concern.

On Thursday I’m attending the screening of a documentary hosted by the Fairvote Canada Waterloo Chapter:

Menocracy

What: Documentary (see the trailer at: http://www.youtube.com/watch?v=PoLWSzq2v74 )
When: Thursday January 26, 7 PM
Where: Lyle S. Hallman School of Social Work Auditorium Room 301
(located behind Kitchener City Hall, across the street in the Laurier building)

Looking at the Senate for the Oh! Canada blog, I was struck by the much higher percentage of women serving on the Senate than in the House of Commons. Where we’re barely managing a quarter of our representatives in the House of Commons are women, the Senate boasts more like a third.  This is a problem.

Perhaps the film will shed some light on the disproportionate lack of women representing us in Parliament.


Image Credits

Marlo Thomas photographed by Alan Light and shared under a Creative Commons Attribution 2.0 Generic (CC BY 2.0) License

Promotional Material and Copyright ~ C11

with 5 comments

Copyright "c"

Have you every noticed how much publicity material is labeled with
© Copyright ~ All Rights Reserved

I am at the point where I will not include any images in my blogs that lack license information.

Why on earth would I reproduce any promotional material ~ why should I plug your art show, book, movie, music, film premiere, marketplace or anything else, if doing so could result in a fine or takedown?

Creative Commons logo

I have become hyper sensitive in regard to copyright issues, since real or perceived copyright violations can result in a DMCA takedown ~ or worse ~ if these laws like our own Canadian Bill C-11 passes.

If you include original art on promotional material in future without using a Creative Commons License or something similar I simply won’t use it.

Canadian DMCA logo

In the past, I might have shared promotional material even though it did not have a license explicitly allowing its use, so long as it it didn’t specify ‘copyright all rights reserved’ either. Once The American SOPA (Stop Online Piracy) and the Canadian Bill C-11 come into effect, I will no longer do that on any blog or website under my control without explicit license permission.

Because the price is simply too high.

#Bill C-11 : Transcription: Jesse Brown’s “Digital Lockdown” Podcast

with 3 comments

The impending Bill C-11, “the Copyright Modernization Act” makes me very nervous. I’m a writer, not not a lawyer, nor a reporter, but I’m sure I will be blogging about this in the days to come.

Naturally I was very interested in Jesse Brown’s interview with the University of Ottawa’s Professor Michael Geist, who is unquestionably an authority on Canadian Copyright Law. I started put to transcribe this podcast for myself, but then it seemed silly not to share, since Jesse Brown is cool enough to license his podcasts with a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada (CC BY-NC-SA 2.5).

I have added links where appropriate, and I cleaned it up (expunging “ums” not expletives). Feel free to listen to the original Podcast at TVO while reading along. [Note: Any transcription errors are my own.]

title card from podcast

Search Engine
Hosted By Jesse Brown

Digital Lockdown

[cue music]

Jesse Brown
Okay, quick show of hands… Who is against the part of bill C-11 where it says that if you break a digital lock for any reason you are breaking the law?

Ahhh.
Okay we’ve got the Liberal Party,
we’ve got The NDP,
we’ve got a bunch of Associations,
The Canadian Association of Research Libraries,
The Business Coalition for Balanced Copyright,
The Council of Ministers of Education,
Documentary Organization of Canada,
Canadian Library Association,
The Canadian Civil Liberties Association,
The Canadian Federation of Students,
The Canadian Teachers Federation,
The Canadian Council of Archives,
The Retail Council of Canada,
The Canadian Consumer Initiative,
The Provincial Resource Center for the Visually Impaired,
The Canadian Historical Association, and, oh yeah, Canadians.
Just about every Canadian who bothered to chime in about this said they did not like the digital locks provision.

Okay. So that’s one side of it.

Now put up your hand if you like the idea that breaking a digital lock for any reason should be a crime.

Just The Conservative Party of Canada.

The thing is, that’s sort of the only hand that matters.

They have a majority, they can kind of do what they want. And they’re gonna.

Bill C-11 as it stands, is probably going to be a law pretty soon. And now it’s time to talk about what that means.

And who better to help out with that than Professor Michael Geist. Michael, welcome back to the show.

Michael Geist
Hi Jesse.

Jesse Brown
Bill C-11 is being debated in parliament, we’ve got the other parties coming out against it, we’ve got the Canadian Coalition for Electronic Rights encouraging people to come out against this… is it just too late? I mean, you heard Minister Moore on this program. He did not sound like a man who is going to change anything fundamental about this. Is the digital locks issue set in stone?

Michael Geist
I think pretty close to that. At least that’s certainly what the minister has been saying, and you know it’s a new environment of course politically where we’ve got a majority government. And while it’s heartening to see how the opposition parties have coalesced around the digital lock issue, unequivocally, that they can’t support the bill with the digital lock provisions in the way that they are currently structured, it seems to me at this point in time that it may be past the point of no return. The Government making clear that its not looking to make fundamental changes to digital lock provisions, or frankly much else in the law.

Jesse Brown
It’s kind of bittersweet, isn’t it? I mean the other parties have never been clearer, they’ve never understood the issues better… they’ve never been more forthright in what they don’t like about it and what they can’t support — at the moment when their opinion matters least.

Michael Geist

I think that’s right. I mean I think it is good there is that growing recognition within the Canadian Public, where you see so many groups that have come out to express concern, as well as politically, at the same time if we hold the government to their word that they’re not gonna make any big changes, there are of course some good things in Bill C-11 as well.

Around fair dealing, around the role of Internet providers, around statutory damages, some of those issues have been subject to very misleading attacks by a number of groups, and so I think it’s heartening that they haven’t resonated. In fact, I’d go even further, its clear if you see the reaction from the opposition parties, that they really haven’t picked up on many of those issues either. I think they recognize that the government actually does strike a pretty good balance on many of those other issues. The one place where the government hasn’t done so is on the digital locks and its disappointing we’ve come this far and there is that opportunity with so much awareness of the problem, frankly its just as disappointing that a fix here is relatively easy. One that would allow for compliance with our international obligations that would be consistent with what we’ve seen in a lot of other countries that would give legal protection for digital locks for those that want it, but at the same time would respect the rights of users, whether we’re talking about consumers, educators, or even other businesses.

Jesse Brown
I brought it up directly with the minister. I said why not just make it illegal to break a digital lock if you’re breaking it for the purpose of infringing, and he pretty much ignored the point.

Michael Geist
well, there isn’t a solid answer to it. As you may know, I was able to obtain under the Access To Information Act, both the internal clause review of the bill, as well as well as fifty pages of government speaking points. And what you find is there isn’t a good answer from the government, other than ‘we think it’s the right balance’. But when you start pointing to significant issues that exist within the bill, real problems, there isn’t a good answer, you know.

Is there a good answer to why those with perceptual disabilities – the blind – may find themselves locked out of works where there is a digital lock, because the current exception that’s in Bill C-11 is so restrictive talking about not being able to unduly impair a TPM – a technological protection measure – such that the blind find themselves locked out. We’ve seen a number of those groups speak out about that issue. I don’t think there is a good answer for that.

Is there a good answer for why researchers who aren’t in the narrow scope of security research, may find themselves locked out, because there’s an exception for security research, but not research more generally. I don’t think there’s a good answer for that.

Is there a good answer for why, in the United States there’s now an exception, specifically for picking the digital lock on a DVD in certain circumstances, but we don’t find something similar in Canada. I don’t think there’s a good answer for that.

And I guess ultimately if there a good answer why many countries New Zealand. Switzerland, and many others that have recognized that you can be compliant with the WIPO Internet treaties and link it directly to actual copyright infringement, well no, there isn’t a good answer for that either. Which is why the government typically simply goes back to talking points which said this is our balance, take it or leave it.

Jesse Brown
We needn’t play naive here; we know what the real reason is. It may satisfy WIPO to have a more lenient approach to legitimate breaking of digital locks, but clearly our government does not believe that it will satisfy the Americans and they’re going to bully forth with this.

Lets assume that they do, it’s pretty likely that’s gonna be the case, what happens next. What are the copyright implications of the Supreme Court of Canada finding that linking is not publishing. What happens when you talk about an ISO Hunt type website that links to torrent files that might be infringing, but itself does no infringing. Or for that matter Google through which you can find a lot of torrent files that contain copyright infringing material.

Michael Geist
Right. well, let’s start by saying that I think this decision that involved p2p.net and the potential liability for linking was a great decision from the Supreme Court of Canada and I think one of the things that we’re seeing from the court is a recognition of the real critical nature that the Internet plays for freedom of expression more generally, and what it’s willing to do, and we certainly see it in this case and I think we see it in some of the court’s other discussion, is that they are really willing to give specific protection for the speech that can occur online because it recognizes just how integral it has become for so many people, certainly for communications for culture and commerce but for basic freedom of expression and to protect those rights that are so central and fundamental within a democratic society. In recognizing that the Internet itself and that activity on the Internet has to be protected.

There are some pretty big implications there. I mean when you think for example of some of the proposals in other countries that have sought to kick people off the Internet based on a number of allegations of infringement. That’s to say you take that kind of proposal which is not on the table right now in Canada, but we know some of the rights holders would like to see it brought to Canada, this is a Supreme Court of Canada that you get the sense they would simply laugh that out of court. That it would not withstand any sort of Charter scrutiny given the strong link that it sees between the Internet itself and freedom of expression. So I think in that sense it’s very good.

More directly or more immediately we’ve had a number of proposals put forward that seek compensation for essentially the act of linking to copyright content. Through Access Copyright for example. Their proposal has argued that linking to content may fall within its tariff, as though we’re dealing with some sort of reproduction of the work. I think if you take a look at the analysis that we’ve had from the Supreme Court here, where it’s very clear that it does not believe that a link amounts to a reproduction, or a republication rather, in the context of defamation , I think a similar kind of analysis might well come into play if you start talking about if from a copyright context.

Jesse Brown
I mean, they were really explicit. You know, like (A) Linking is not publishing and (B) if you were to deem it so, the Internet wouldn’t work. How can you hold people accountable for what lies on the other side of a link, it can change and people have no control over that.

Michael Geist
The Court totally understood both how information is disseminated online,how the Internet functions, and that central role that linking plays. So in that sense it was very good. And note that there are three decisions, there’s the one that’s adopted by the majority of the court, and then there are two concurring decisions each actually adopts different standards when it comes to potential liability for linking. So all agree that as a basic premise linking shouldn’t bring liability but then they get into the question of what if. Under what circumstances might linking rise to the level of potential liability, and the one that the Supreme Court ultimately adopts or that the majority of the court adopts is the one that has by far the highest threshold. One that seeks to protect as much as possible that freedom of expression online, saying yes at the end of the day you still go after the person who is responsible for the defamatory speech, that’s where responsibility lies, not with someone who has linked to this content.

Jesse Brown
Okay, but how do we reconcile that with Bill C-11 which states that if a website’s primary purpose is to enable copyright infringement it doesn’t matter whether or not that site itself infringes, it is subject, it’s breaking the law, it’s breaking Bill C-11. So I mean it seems that the precedent that’s just been set is in some sort of conflict with that piece of legislation.

Michael Geist
I don’t know if its in conflict, but obviously its not wholly consistent. I mean what the government is trying to do in C-11 is establish a very tough rule that goes after these sites, the so-called ‘enabler’ sites.

I’ve argued that we already may have laws that can deal effectively with those sites. In fact there is already an ongoing lawsuit the Industry has brought against ISO Hunt and so there is still issues around authorizing infringement which apply whether or not we’re dealing per se with a link We could get into a debate as to whether or not links alone are enough to authorize infringement, but where you’ve got a site that seems to be by its design designed to support infringing activities, the case that would be brought would probably involve more than just pointing to the linking activity but rather the structure of the search, the way in which it has been designed to try to rise to the level of authorizing others to infringe. The truth is, we don’t fully know yet where courts would land on these issues. On the enabler provision it’s still not a part of the law, and in the cases against ISO Hunt the Industry has for so long dragged its feet seeming content to score points for the politicians by saying Canadian Law is Weak, we need legal changes, although quietly on the side, continuing to pursue legislative legal remedies using the law as it currently stands.

Jesse Brown

Now, there’s another part of this where the courts may find issue with C-11. There’s a possibility if a case were to be brought to the Supreme Court of Canada that was arguing that the prohibition on breaking digital locks is a violation of our Charter Rights, the court might find that is true. Is there any indication of where they would stand on that? Do you think that a precedent setting case like that is likely once this bill becomes law?

Michael Geist

It’s an interesting issue and I don’t think so much that it is a matter of Charter Rights but rather a violation if the Constitution in terms of the division of powers. And the argument here, and I think its a good one, is that the way the Constitution is structured, Copyright is the responsibility of the Federal Government but Property and Civil Rights fall to the Provinces. So long as you’ve got provisions that are clearly about copyright, this is something that obviously falls within Federal jurisdiction and they can legally legislate.

The problem the Government may face when it comes to the digital lock provisions as they are currently structured, is that they seem to be far more about property rights, what people can and can’t do with their personal property that they’ve purchased than it is about copyright. In fact, as part of that Access to Information request that I obtained from the government, there was a clause by clause analysis of the legislation, and the government is very very clear in that you don’t need an actual copyright infringement to violate the digital lock rules, and the traditional defenses that exist within the Copyright Act also don’t apply when somebody breaks the digital lock rules. So if we’ve got provisions here where we’re not talking about traditional offenses under the Copyright Act and we’re not talking about traditional defenses under the Copyright Act, that doesn’t sound very much like copyright at all.

Jesse Brown
Give me an example. Are we talking about like if I were to break a digital lock on a DVD or if I were to unlock a cell phone how does that have anything to do with copyright, is that what you mean?

Michael Geist

That’s exactly what it is. We’re talking about access in the case, let’s say, of the DVD and its the Copyright law not the Access Act, and so the Copyright Act deals specifically with copying and reproduction of works. This ventures far beyond that into people’s rights to access materials, in this case the use of the property they have purchased. The copyright holder of course owns the right in the underlying work, the intellectual property that exists within the DVD, But you still do have some rights over the physical DVD that you’ve purchased and the notion that one can exclude access part of that is pretty far afield from conventional copyright.

Now if the government would follow the recommendations that we’ve seen from so many groups, that say create a clear linkage between breaking a digital lock and an intent to infringe, well then it does start sounding again like copyright, because now we are talking about people who are breaking copyright rules and the digital locks are there to support those basic policies about insuring the copyright act is effective.

But the way the government has structured the law right now, is that they’ve moved pretty far away from traditional copyright, it really is into the realm of traditional property rights. It’s all about what consumers can and can’t do with their property irrespective of whether someone might be infringing copyright or even irrespective of whether or not they’ve got an appropriate defense of fair dealing or otherwise. And so I think it is entirely possible once this becomes operational, and we face the prospect of some actions brought against people, that we’ll see groups seek to clarify whether or not the provisions as currently structured even pass muster from a constitutional perspective.

Jesse Brown
And this is not sort of you know, lawyeringness, or a kind of niggling detail, our rights over our private property are pretty essential in any democracy. These are constitutional rights. The circumstances of where this would get fought I suppose would be if you found the right case, say a blind person who buys a book that is not available as an audio book They break DRM in order to feed it into a text to speech program so they can actually enjoy what they bought. There is no question of illegal reproduction, certainly not commercial, That might be a case that you know some interested lawyer who knows about these things. maybe yourself might actually make an issue out of it and take it to the courts and then that would challenge the bill itself.

Michael Geist
I think that would challenge those specific provisions. So I would seek to argue that the particular provisions around digital locks are unconstitutional because they are ultra vires the federal government. In other words, provisions that involve property and civil rights, and do not directly involve copyright, are beyond the jurisdiction of the purview of the Federal Government.

There’s an easy way of course to fix that and make this legislation a bit more bulletproof against a constitutional challenge and that’s to create a link to copyright. As we’ve been discussing now, despite the fact that so many groups and now all the opposition parties have been calling for exactly that kind of remedy the government has been loath to move in that direction.

Jesse Brown
What will be the impact for average Canadians in the period of time shortly following the passing of this law. Are we going to see the same kinds of lawsuits that, I mean, Minister Moore like to say that the Industry is done with that kind of lawsuits that the Recording Industry Association filed against, I don’t know, 30,000 individual file sharers, teenagers, single moms… Of course the movie industry seems to be moving in that direction. The Hurt Locker down loaders faced lawsuits like that. Are we going to see that in Canada? Is that how this is going to hit home for people who have not paid the closest attention to this up ’til now?

Michael Geist

Well, you know, the odd thing about this legislation is that the way that it gets promoted is so often around things like peer to peer file sharing but C-11 has very little to do with peer to peer file sharing.
The practical reality is that similar legislation has been in place in the United States since before the advent of Napster and so the notion that suddenly new digital lock protection are going to provide the kind of protections that are necessary to eradicate infringement online is just patently false. And I think everybody knows it. I spent sometime this week at a conference with a series of European experts are here and no one’s talking about digital locks. In fact in Europe a number of countries have implemented it in different ways, in some ways different than the United States has implemented it. Digital locks aren’t ultimately about dealing with peer to peer and they’re ultimately not about these sorts of lawsuits.

And so, once the legislation is passed, we’re going to see a real impact. Whether its in education, or in other places where the rules won’t be clear, that many of the traditional user rights or exceptions, around research, or around private study, or in criticism review, potentially even around education itself, if that becomes part of the law with C-11. There, once there’s a digital lock in place, those rights cease to apply and I think that’ll have a pretty dramatic impact.

Now, there’s a lot of other good things that will come into the legislation, in terms of clarifing legalization of recording television shows and back up copies. Extending or expanding some of the fair dealing rights. I think all of that’s great. But at the same time those digital lock rules will have that immediate impact. As for the prospect of lawsuits, the Industry stood up before the committee just a few months ago, just before the bill died, and was unequivocal when asked directly about the prospect of new file sharing lawsuits against individuals, and said they have no intention of doing so and just within a number of months, we now know that lawsuits have been filed with three major ISPs in Canada, and of course if those are successful, even with the changes to the statutory damage provisions in the bill, even with changes that create a cap for non commercial infringement, the door is still open to see more of these kinds of suits.

Jesse Brown

You know, I feel that most Canadians, for personal use, are going to continue to do whatever they were doing before, if in fact they are aware of this bill is a law or will soon be a law or not. It’s really at the institutional level, the universities and companies that just want to avoid liability in any way that they’re going to stop doing a lot of things that they have been doing.

Michael Geist

That’s absolutely right. And in fact I’ve been asked many times since both Bill C-32 and C-11 about that ability to enforce and I think it is true that practically speaking, most individuals are going to be very tough to stop them from picking a digital lock, the tools are out there, even though this will make the distribution of those tools illegal, and further, its arguable that there are no real damages here either, especially if they are simply seeking to access their own works that they purchased.

But where the rubber will hit the road, where the enforcement will not only be possible but probable, and where it will have a real impact, is frankly, as usual, on the good guy. On the people who are actually going out and buying licensing, trying to make use of materials, and they suddenly find now that where there are locks there are going to be restrictions.

Where you’ve got someone who is sight impaired who wants to ensure they’ve got access if the publisher isn’t making it accessible, and where its behind the lock, they’ll be prohibited from going after it, and there will be large institutions that might want to try to do that on behalf of their users they won’t be doing it.

In larger education institutions where you’ve got teachers and students who want to engage in remix and multimedia presentations and they need to be able to break a digital lock in order to do that, things that are legal as the law currently stands, that too will stop, because the guidelines I think will be unequivocal when presented within those institutions they want to stay on the side of the law and what they will do is make it clear that they can’t engage in that activity.

And so the sad part of all this, one of the sad parts about all this, is that where this will hit most directly, are on the people who are the most likely to want to be compliant with the law. And its in the one place where there are some of the best advantages of using these kinds of new technologies and providing new levels of access, new kinds of creativity and yey what the government is going to be doing
stopping some of it dead in its tracks.

Jesse Brown

Well, this is soon going to be over and then it’s just gonna be beginning.

Michael Geist

I think that’s right. It’s the beginning in terms of some of the legal questions and issues about the bill, and incredibly, it is very likely to all start again with a new piece of legislation now on IP enforcement, that may well be introduced weeks after this piece of legislation passes through the parliamentary process.

Jesse Brown
I hope you’ll be willing to take us through that when the time comes. Thank you as always for your time, Michael

Michael Geist
It’s my pleasure, Jesse. Take care.

[cue music]

Jesse Brown
Search Engine is produced by me with help from Luke Simcoe and a community of listeners who, unlike me, know their Charter from their Constitution. Email me at jesse@jessebrown.ca Check out the blog, its at t-v-o-slash-searchengine The videos which are going up all the time go up at YouTube-dot-com-slash-t-v-o-searchengine and I’m on Twitter @jessebrown

this program is released with a Creative Commons License. Go ahead and link to it, I promise not to switch it with anything nasty. The next podcast will be up on Tuesday.

[bring music up and out]

Written by Laurel L. Russwurm

October 26, 2011 at 12:16 am

Happy Birthday Julian Assange

with 2 comments

Today is Julian Assange’s birthday.

Assange thinks human beings have a right to privacy, but democratic governments owe their citizens transparency.

Julian Assange isn’t an ordinary guy, but an innovator. Not mired in preconceived notions, he is a prime architect of WikiLeaks, the first Stateless news organization. WikiLeaks was designed to anonymously accept, vet and publish information that the public should be privy to.

It appears that elements of the United States government prefer to operate without citizen oversight. Some decades past, US government leaks given to Woodward and Bernstein brought criminal behavior in the Nixon government out of the shadows and into the open. For this service to their government and their nation, Woodward and Bernstein were lionized.

Although Mr. Assange and WikiLeaks were well thought of for their efforts in support of freedom in repressive regimes, the U.S. government attitude changed abruptly with the release of the the “Collateral Murder” video where military personnel cavalierly used unarmed civilians for target practice. As far as I know, no attempt has been made to address this problem. The war criminals implicated in the video don’t even appear even to have been reprimanded.

Free Bradley Manning Sticker affixed to a window backed with venetian blinds

However, Bradley Manning, the young intelligence officer accused of being the WikiLeaks whistle blower, (the modern day equivalent of Bob Woodward’s “Deep Throat”) has been isolated, incarcerated, and held in conditions that suggest attempts to “break” if not “brainwash” the young man. It must be noted that Bradley Manning’s extreme loss of liberty has been effected even before he has been convicted of anything.

Wikileaks, and anyone associated with it, has also come under fire.

at New Media Days

Julian Assange, as “the face of WikiLeaks,” has drawn the lightning. Various powerful people have leveled threats against Mr. Assange, including Canada’s own Tom Flanagan, reputedly a friend and mentor of our sitting Prime Minister, who advocated assassinating Julian Assange on Canada’s national public broadcasting network, CBC Radio-Canada. The video of Flanagan’s crime (counselling to commit a crime is in itself a criminal offense in Canada) has been seen around the world. Yet in spite of citizen complaints, petitions and public pressure, no Canadian police force will even bring charges against this well connected Canadian.

Currently, Mr. Assange is being held in the United Kingdom under house arrest, with an electronic surveillance ankle bracelet and draconian terms of “bail.”

Ostensibly, this is because Mr. Assange is fighting extradition to Sweden, where prosecutors wish to question him. They had previously questioned him, and declined to bring charges. Many people believe the real agenda for Mr. Assange’s extradition is simply a sham to keep him “on tap” until the American government manages to find laws under which to charge him. Failing that, existing American laws, which currently allow protection to news media when publishing material that may have been obtained illegally by whistle blowers, may be changed.

So today, on his birthday, Julian Assange remains a prisoner.

House arrest may not be as bad as incarceration in an actual jail, but it is, nonetheless, a deprivation of liberty.

In spite of this, I hope Julian Assange can have a good 40th birthday, and take heart that many ordinary people around the world support the cause of freedom, and we do appreciate his efforts.

Graffiti on an apartment complex in Kitchener, Ontario, advocates freedom for Wikileaks founder Julian Assange

Apartment Complex graffiti, Kitchener, Ontario, Canada



Image Credits

Julian AssangeThis photo by New Media Days / Peter Erichsen is licensed under a Creative Commons Attribution-Share Alike 3.0 License.

Free Bradley Manning photo by Steve Rhodes released under a Creative Commons Attribution Non-Commercial No derivs License

Thanks to my brother, humor columnist, Larry Russwurm, for spotting and photographing the graffiti below in Kitchener, Ontario, Canada, and releasing the image under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

Election Day: 41st Canadian Parliament – VOTE

with 2 comments

My son tells me that the answer to any question about Canadian authors in Reach For The Top is always “Margaret Atwood.” Which means that Margaret Atwood is a famous writer. And it is no doubt that Ms. Atwood’s famous support has helped the Project Democracy website convince people to vote the way someone else tells them to. Perhaps Ms. Atwood should go read her own speculative fiction and think about root causes that lead to dystopias. Voting for what you don’t want certainly seems to me to be the first step along that slippery slope.

The only way to strategic vote is to not waste my vote by voting someone else’s strategy; and vote for my own choice in my riding.  I hope you do too.

vote like a pirate?

I wish Canada had proportional representation. If we did, I might be able to vote for everyone I wanted to.
[To find out about electoral reform. take a look at the non-partisan Fairvote Canada]

Pirate Party of Canada Leader, Edmonton Center MP Candidate Mikkel Paulson

Pirate Party of Canada
I might be able to vote for a Pirate Party Candidate. The Pirate Party is a newly registered Canadian Political Party, running on a platform of Copyright reform & Access to Culture, Privacy, Patent Law reform, Net Neutrality, Open Government and Open Access. The Pirate Party will not be able to form a government during this election because they have only fielded ten candidates.

Even so, if there was a Pirate Party candidate running in my riding, that is where my vote would be cast. Because digital issues including Canada’s digital economy, privacy and civil liberties need to be addressed by people who understand them. And it has become horribly clear that the entrenched parties’ understanding of these issues is faulty at best. It might not be such an important issue except that our recent governments have demonstrated their unwillingness to listen to or learn from citizen input on these subjects, but rather to create legislation favoring American Corporate interests.
StopUBB logo

I have spent a great deal of my time over the past two years writing about Usage Based Billing. The CRTC is not following its ostensible mandate to safeguard Canadian consumer interest. To some extent this is because Canadian Law doesn’t require it.

Kitchener-Waterloo Pirate Party MP Candidate Steven Bradley Scott

The former Conservative government’s response to unacceptable CRTC rulings was to intervene situationally, rather than to fix the problem by fixing the law. [Had it been a majority government, there might not have been any intervention.] Doing an end run around a bad law and leaving the bad law in place is not good governance. Dissolving or at least reforming the CRTC to include technically informed members as well as consumers instead of Bell Canada staffers would go a long way to achieving true net neutrality which would support Canada’s ability to compete well in the global economy.

The neighboring Riding of Kitchener-Waterloo is fortunate to have Steven Scott running as a Pirate Party candidate.  I would vote for him if I could.

deciding how to cast my vote

Personal privacy is important, so I was pleased to witness my child’s refusal to answer a party canvasser who demanded to know how he would vote. As bad as our system is, we do still have a secret ballot. No one has the right to know how anyone will vote.

In my riding, I have four candidates to choose from. Anyone who has read anything I have written about Canadian politics would be justified in thinking I will not be casting a vote for either the Liberal or Conservative candidate. Even so, for every election I make up my mind anew.

As seems to be the case in every riding for this 41st Canadian election, the Conservative and Liberal party are attacking each other more than actually offering any solutions. When one considers that the past actions of these two parties are responsible for many problems we face:

  • erosion of universal health care (in 30 years I’ve only ever seen health care cuts)
  • erosion of democracy (G20, Byron Sonne, premature prorogation, contempt of parliament)
  • taxation imbalance between corporate taxation (near non-existent) and citiizens (crushed by ever increasing burden)

I’m not voting for

My Conservative Party incumbent, who uses his past life as a Christian pastor as an badge of morality while allowing impropriety in his office, then compounds the problem by not taking responsibility.

My Liberal Party candidate who spent more time finger pointing than convincing me he would do a good job in office.

My Green Party candidate who is too new and shaky on his party’s platform. Being a self-confessed SUV driver did not help.


My NDP candidate is also new, but by way of contrast Lorne Bruce not only knows the party platform, he clearly believes in it. Instead of talking without substance, he stays on point.

I think that he will get things done and consider the wishes of constituents.   We need a responsive government that serves Canadian interests, not a sock-puppets that will ram through American dictated legislation like Bill C-32.  I think the NDP may be able to do that.  What I do know is that they can’t possibly do a worse job than our previous governments.  And they support electoral reform. Which is why the NDP’s Lorne Bruce will get my vote in this election.

That’s me, making my own choice.

In a democracy, we all do. Our system is broken, but it is important for Canadians to get involved so it can be fixed.

It’s interesting that citizens are beginning to realize that we don’t have to vote for candidates we don’t believe in.

Today is Election Day.

All Canadians should vote. 

And if you can, bring a friend.

Flag agaisnt the sky



Steven Scott photo released by the Pirate Party of Canada under a Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) License.

Mikkel Paulson photo released by the Pirate Party of Canada under a Creative Commons Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) License.

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