Michael Geist sez, "Over the past couple of days, there have been multiple reports about the return of file sharing lawsuits to Canada, with fears that thousands of Canadians could be targeted. While it is possible that many will receive demand letters, it is important to note that recent changes to Canadian copyright law limit liability in non-commercial cases to a maximum of $5,000 for all infringement claims. In fact, it is likely that a court would award far less - perhaps as little as $100 - if the case went to court as even the government's FAQ on the recent copyright reform bill provided assurances that Canadians "will not face disproportionate penalties for minor infringements of copyright by distinguishing between commercial and non-commercial infringement.""
Michael Geist sez,
This morning, the majority of Bill C-11, the Canadian copyright reform bill, took effect, marking the most significant changes to Canadian copyright law in decades. While there are still some further changes to come (the Internet provider notice-and-notice rules await a consultation and their own regulations, various provisions related to the WIPO Internet treaties await formal ratification of those treaties) and digital lock protections are part of the package, all the consumer oriented provisions are now active. These include:
- The addition of education, parody, and satire as fair dealing purposes.
- The creation of a non-commercial user generated content provision that creates a legal safe harbour for creators of non-commercial USG (provided they meet four conditions in the law) and for sites that host such content.
- The adoption of several new consumer exceptions including time shifting (recording of television shows), format shifting, and the making of backup copies.
Read the rest
Over the past few years, the Motion Picture Association - Canada, the Canadian arm of the MPAA, has recorded nearly 100 meetings with government ministers, MPs, and senior officials. While their lobbying effort will not come as a surprise, last October there were several meetings that fell outside the norm. On October 18, 2011, MPA-Canada reports meeting with Canadian Heritage Minister James Moore, Foreign Minister John Baird, and Industry Canada Senior Associate Deputy Minister Simon Kennedy, all on the same day. These meetings occured less than three weeks after the introduction of Bill C-11 and the decision to sign ACTA, and only eight days before SOPA was launched in the U.S.
To get a sense of how rare these meeting were, this is the only registered meeting John Baird has had on intellectual property since Bill C-11 was introduced and ACTA was signed by Canada. Similarly, since the introduction of Bill C-11, James Moore has only two intellectual property meetings listed - this one with MPA-Canada and one in March 2012 with the Canadian Wireless Telecommunications Association (in fact, Moore had only three meetings on intellectual property in all of 2011. Those meetings were with MPA-Canada, the Canadian Recording Industry Association, and the Canadian Chamber of Commerce). Even the Simon Kennedy meeting was a rarity as he has had multiple meetings with pharmaceutical companies, but only two (MPA-Canada and the Canadian Council of Chief Executives) that appear to have included copyright. Given how unusual it is for a single lobby group to gain access to two of Canada's leading cabinet ministers and a senior department official on the same day, it begs the question of how they did it.
The long road of Canadian copyright reform is nearing an end as the Bill C-11 committee concluded hearing from witnesses yesterday and indicated that it will begin a "clause-by-clause" review of the bill starting on Monday. While there will still be some additional opportunities for debate - third reading in the House of Commons, Senate review - the reality is that next week's discussion will largely determine the future of Canadian copyright law.
For the thousands of Canadians that have participated in consultations and sent letters to their MPs, there is reason for concern. On one side, there are the major copyright lobby groups who have put forward a dizzying array of demands that would overhaul Bill C-11 including requiring Internet providers to block access to foreign sites, take down content without court oversight, and disclose subscriber information without a warrant. On top of those demands, the industry also wants individuals to face unlimited statutory damages and pay a new iPod tax.
On the other side, there are groups such as Access Copyright that are calling on their members to urge the government and committee MPs to undo the Supreme Court of Canada's CCH decision on fair dealing. While many of these demands are clearly far beyond "technical amendments" and should be ruled out of order, the last minute push must be met by Canadians who favour a balanced approach to copyright reform that retains the best of Bill C-11 and makes some modest changes to digital locks, the one remaining area of concern. My message to the MPs focuses on three simple principles:
1. No SOPA-style amendments. That means no website blocking, no warrantless disclosure of subscriber information, no expanded enabler provision, no unlimited statutory damages, no iPod tax, and no content takedowns.
2. Maintain the fair dealing balance found in C-11 by expanding the provision to include education, parody, and satire and relying on the Supreme Court's six-factor test to ensure that the dealing is fair.
3. Amend the digital lock rules by following the Canadian Library Association's recommended change linking circumvention to actual copyright infringement.
The message is going to my local MP, the Ministers and to Bill C-11 committee members.
Closing Time on Canadian Copyright: Help Stop the Final Push for SOPA-Style Reforms & Efforts to Gut Fair Dealing (contains links to contact your MP and the committee members)
Michael Geist sez,
The Canadian committee on copyright reform conducts its final witness hearing today and not a moment too soon. Based on the demands from music industry witnesses this week, shutting down the Internet must surely be coming next. The week started with the Canadian Independent Music Association seeking changes to the enabler provision that would create liability risk for social networking sites, search engines, blogging platforms, video sites, and many other websites featuring third party contributions. It also called for a new iPod tax, an extension in the term of copyright, a removal of protections for user generated content, parody, and satire, as well as an unlimited statutory damage awards and a content takedown system with no court oversight. CIMA was followed by ADISQ, which wants its own lawful access approach that would require Internet providers to disclose subscriber information without court oversight based on allegations of infringement (the attack on fair dealing is covered in a separate post).
Yesterday the Canadian Music Publishers Association added to the demand list by pulling out the SOPA playbook and calling for website blocking provisions. The CMPA argued that Internet providers take an active role in shaping the Internet traffic on their systems and therefore it wants to "create a positive obligation for service providers to prevent the use of their services to infringe copyright by offshore sites."
The net effect of the music industry demands represents more than a stunning overhaul of Bill C-11 as it is effectively calling for a radical reform of the Internet in Canada. Taken together, the proposals would require Internet providers to block access to foreign sites, take down content without court oversight, and disclose subscriber information without a warrant. On top of those demands, the industry also wants individuals to face unlimited statutory damages and pay a new iPod tax. It also wants an expanded enabler provision that is so broadly defined as potentially capture social networking sites and search engines.
Canadian record labels to Canadian Parliament: we want to be able to control search engines, social networking, blogs, video sites, and community sites. Oh, and we want an iPod tax.
Michael Geist sez, "The Canadian music industry is scheduled to appear before a Parliamentary committee today with some of the most radical demands to date that would effectively create liability for social networking sites, search engines, blogging platforms, and video sites such as Google, Facebook and Reddit. As if that were not enough, the industry is also calling for a new iPod tax, an extension in the term of copyright, a removal of protections for user generated content, parody, and satire, as well as an increase in statutory damage awards. Taken together, the Canadian music industry demands make SOPA look like minor tinkering with the law."
Michael Geist sez,
As the public outrage SOPA effectively killed SOPA and tens of thousands of Europeans take to the streets to protest ACTA, Canadians need to do their part to counter the inclusion of SOPA-style reforms into their copyright bill and to demand changes to its restrictive digital lock rules. According to documents recently obtained under the Access to Information Act, Industry Canada received thousands of letters of concern about Bill C-61, the 2008 copyright reform bill, the overwhelming majority of which focused on digital lock concerns. Just one month after the bill was tabled, the government had tracked over 27,000 letters and emails.
A year later, the government held its national copyright consultation. It generated enormous public interest with over 8,000 submissions. Now officials have received over 50,000 emails of concern on Bill C-11 in the past couple of weeks alone, at times receiving upwards of 400 emails per minute. The public opinion on Bill C-11 is clear. The majority support reform on two key conditions. First, no SOPA-style amendments such as website blocking or expanded liability should be added to Bill C-11. Second, the digital lock rules should be balanced by linking circumvention to actual copyright infringement.
Canadians have been speaking out on copyright reform in general and digital locks in particular for years with widely held views that reflect Canadian sensibilities about balancing protections and consumer property rights. The numbers keep growing and will continue to do so. If you have yet to speak out, write, email or tweet at the ministers and your MP providing your views on Bill C-11, now is the time to do so. If you are following the anti-ACTA rallies this weekend or tracking the C-11 debate in the House of Commons and wondering what you can do, write, email or tweet once more, asking Canadian Heritage Minister James Moore, Industry Minister Christian Paradis and your Member of Parliament: can you hear us now?
Canadians speak out en masse against pro-censorship, pro-DRM copyright proposal; government ignores them
Michael Geist sez,
Tens of thousands of Canadians have spoken out against proposed copyright reform in recent days that could combine the US DMCA with SOPA to create restrictive digital lock rules along with targeting of legitimate websites and website blocking. Canadians recognize that the bill will have an impact on the legitimate activities of millions, creating barriers to creators, students, journalists, researchers, and the visually impaired. While the government is right when it says there has been wide consultation, the question is whether it has taken the public comments into account and conducted a full analysis of the implications of its current proposal. There is reason to believe that it has not.
When asked about enforcement concerns, Industry Minister Christian Paradis said "enforcing these rights in a given instance, however, is a private legal matter on which the government cannot speculate." This post does some speculating for the Minister, demonstrating how the law will chill freedom of expression and scientific research, jeopardize fair use, and impede competition and innovation.
Debunking the record industry shill who said that his amendments to Canada's proposed copyright law are no big deal
Michael Geist sez, "Barry Sookman, lawyer and registered lobbyist for the Canadian Recording Industry Association (now Music Canada), the Motion Pictures Association - Canada, and Canadian Publishers Council, has an op-ed in the National Post claiming that concerns that proposed amendments to Bill C-11 could result in SOPA-style rules in Canada are the stuff of wild claims and hysteria.
"The short response is that Sookman's column - along with his clients - downplay the dramatic impact of their proposed amendments. Their proposed amendments to C-11 would radically alter the bill by constraining consumer provisions, heaping greater liability risk on Internet companies, and introducing website blocking and Internet termination to Canada. Several of these provisions are very similar in approach to SOPA in the U.S. and the comparison is both apt and accurate. Moreover, the column leaves the false impression that Bill C-11's digital lock rules are standard when they are widely opposed by numerous stakeholders that Sookman would not dare to call anti-copyright. There is much more to take issue with in the column and I've done so in paragraph-by-paragraph format in the post."
"Bill C-11 Is No SOPA": My Response (Thanks, Michael!)
The Electronic Frontier Foundation has selected some of the best submissions from the Copyright Office's review of whether it should continue to be legal in the USA to "jailbreak" your devices in order to make them more suited to their needs. In this post, we hear from a deaf man who jailbreaks his phone so that he can use it as an assistive device at work; a military worker in Kuwait who jailbreaks his phone so he can quickly access the flashlight function to scare off dangerous wildlife near the base; and a nurse whose jailbroken device allows her to "track my performance, treatments used on patients, and the effects of those treatments, much faster with customizations that are not available on a device that is not jailbroken."
A note for Canadians: Bill C-11, Canada's proposed copyright law, has no similar exemption-setting process. That means that if MP James Moore succeeds in passing his legislation, it would be illegal to modify your property in the ways described here.
Kevin McLeod is a deaf man who uses his Android phone — a Samsung Epic 4G — to assist him with communication, record-keeping, and time management. Like many deaf people, he uses video relay service (VRS) software on his phone to “work on a level playing field with hearing peers and have productive and meaningful careers.” He had these comments for the Copyright Office:
I need a phone that can run VRS software through the day without having to recharge every other hour. The stock phone I received can't do that. I had to upgrade to a more powerful battery. Then I installed an alternative version of the Android operating system called CleanGB that removes most of the carrier-installed software. This freed up memory and battery resources I need to stay connected.
We need the ability to modify our devices because manufacturers and carriers can't possibly anticipate all the needs of their customers. We need flexibility to make the most of the terrific tools they build for us. I love the power and connectivity my phone gives me. I love that I can customize it to meet my unique needs.
Michael Geist sez, "I've posted a video version of a recent talk on SOPA activism and what it means for the next generation of global copyright agreements such as the Anti-Counterfeiting Trade Agreement and the Trans Pacific Partnership. The talk is about an hour as it also assesses the global strategies employed by the U.S. and copyright lobby groups of shifting away from WIPO toward closed negotiations (like ACTA) and domestic copyright pressure (like the Canada's Bill C-11, which is a combination of DMCA + potentially SOPA)."
Beyond SOPA: ACTA, WIPO, and the Global Copyfight (Thanks, Michael!)
Michael Geist sez,
Canadian Music Industry Lobby: Put SOPA Into C-11 Or Stand With Illegal Sites
The reports that the music industry lobby (along with the Entertainment Software Association of Canada and the movie lobby) is seeking the inclusion of SOPA-style provisions into Canadian copyright has generated considerable discussion online and in the mainstream media. Yesterday, Balanced Copyright for Canada, the group backed by the music industry, fired back with several tweets claiming that opposing their reforms would benefit "illegal BitTorrent sites"and "illegal hosting sites." Leaving aside the fact that if these sites are illegal, they are by-definition already in violation of current law, the claims point to what seems likely to become a SOPA-like scare campaign that seeks to paint skeptics of CRIA demands as supporters of piracy. The music industry claims to be a big supporter of Bill C-11, yet few groups have demanded more changes. In fact, when it appeared before the House of Commons committee reviewing the bill, one MP noted that their demands were "substantial" and "anything but minor." Their demands include:
- expansion of the enabler provision to include SOPA-style expanded liability
- create new injunction powers to block websites
- create new injunction powers to remove content from websites
- require ISPs to implement a policy on repeat infringers that could include Internet termination
- remove the non-commercial liability cap for statutory damages
- restrict the user-generated content provision
- create new limits on personal copying exception
- create new limits on time shifting exception
- create additional limits on backup copy provision
- limit the safe harbour for ISPs
- limit the safe harbour for caching activities
- limit the safe harbour for hosting content
- limit the search engine (ILT) exception
- eliminate the ephemeral recording amendment
Michael Geist sez, "In recent days there has been massive new interest in Canadian copyright reform as thousands of people write to their MPs to express concern about the prospect of adding SOPA-style rules to Bill C-11. The interest has resulted in some confusion - some claiming that the Canadian bill will be passed within 14 days (not true) and others stating that proposed SOPA-style changes are nothing more than technical changes to the bill (also not true). Given the importance of Canadians speaking out accurately on Bill C-11, ACTA, and the TPP, I've posted ten key questions and answers to sort through the claims. They point to the fact there is serious concerns with the bill as currently drafted and that it could get much worse if content lobbyists get their way."
Canadians from all corners of industry, culture, education, law and civil society oppose Canada's SOPA
Michael Geist sez, "Throughout the fall, I ran a daily digital lock dissenter series, pointing to a wide range of organizations representing creators, consumers, businesses, educators, historians, archivists, and librarians who have issued policy statements that are at odds with the Canadian government's approach to digital locks in Bill C-11. While the series took a break over the Parliamentary holiday, it resumes this week with more groups and individuals that have spoken out against restrictive digital lock legislation that fails to strike a fair balance. Recounting the series to date, it illustrates that no amount of spin can disguise the obvious opposition from groups representing millions of Canadians to the Bill C-11 digital lock provisions. This includes leading business organizations, creators groups, consumer associations, educators, librarians, representatives of the visually impaired, civil liberties groups, archivists, and historians."
The IP addresses assigned to the Canadian Parliament have been implicated in several copyright-violating BitTorrent downloads. The 220.127.116.11 – 18.104.22.168 IP block was seen to be in BitTorrent swarms for movies, Windows cracks, Adobe Premiere, ripped CDs, and many other files. The IP records were retrieved from YouHaveDownloaded, a Russian database of IP addresses seen in copyright-infringing swarm. Other YouHaveDownloaded queries have yielded evidence of illegal downloading at the RIAA, the official residence of Nicholas Sarkozy, the Department of Homeland Security, and several MPAA member companies.
“It’s pretty funny, given that this very same group of people is working on harsher copyright law with Bill C-11, ” says former Pirate Party Candidate for Vancouver Centre Travis McCrea, “It just highlights how absurd and unenforceable this copyright monopoly is. Just as in the Hurt Locker lawsuit, we can tell where the files were downloaded but it is impossible to tell which individual is responsible.”
Canadian MPs use bogus video-game industry data to defend hated DRM law they're about to ram down the country's throat
Michael Geist sez,
The False Link Between C-11's Digital Lock Rules and Video Game Industry Jobs
The Canadian government has turned to the video game industry as a major source of support for its much criticized digital lock rules. Given the fact that writers, performers, publishers, musicians, documentary film makers, and artists have all called for greater balance on digital locks, the government has been left with fewer and fewer creative industries that support its position. On Monday, government MPs repeatedly referenced the video game industry and the prospect of lost jobs as a reason to support restrictive digital lock rules. For example: "I wonder if the member and her party opposite are talking about putting an end to the video gaming industry in this country with weak TPM measures [ed: that is, making it legal to break DRM if done for a purpose that doesn't violate copyright]."
Later, an MP asked an MP: "Could he explain to the House how, in the absence of effective technical protection measures, that industry could continue to flourish in the province of Quebec?"
Government MPs regularly referenced the 14,000 jobs in the industry and suggested that they would be put at risk with "weak" TPM measures. Given the focus, it is important to examine the evidence that supports claims that jobs are at risk. A closer look at the industry' own evidence demonstrates the government's claim that adding balanced digital lock rules to Canadian copyright law would destroy the industry is plainly false. Based on the industry's own data, opinion surveys of Canadian video game makers, industry growth in other countries with balanced digital lock rules, and the massive taxpayer investment in the industry, there is little reason to believe that amending the Bill C-11 digital lock approach would harm the Canadian video game industry.