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.""
Why Liability Is Limited: A Primer on New Copyright Damages as File Sharing Lawsuits Head To Canada
Michael Geist sez,
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 MPAA's Secret Lobby Campaign on Bill C-11 and a Canadian SOPA
Michael Geist points us to "A critique
of how the collecting agency behind the 'bone stupid' copyright deals
signed by U of Toronto and Western U is poised to have its wishes ensconced in Canada's soon-expected Copyright Modernization Act, Bill C-11, with provisions that 'override the copyrights of others, monopolize markets and collect a de facto 'Education Tax' [that] is inefficient, immoral, and likely unconstitutional.'"
Michael Geist sez, "Open Media, which launched the most successful Canadian online petition in history on usage based billing, is now encouraging people to speak out on copyright reform. The group makes it easy to speak out against SOPA-style reforms, harms to fair dealing, and unduly restrictive digital lock rules. This is the last chance for Canadians to be heard with the final committee changes coming on Monday
Michael Geist sez,
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.
The Other Shoe Drops: Music Reps Want SOPA-Style Website Blocking Added To Copyright Bill
Michael Geist sez, "Last week I wrote about the astonishing demands
of the Canadian music industry as it seeks a massive overhaul of Bill C-11, the copyright reform bill. The Canadian Independent Music Association is 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. If that were not enough, it 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.
CIMA and ADISQ, which represents the Quebec music industry, appeared before the C-11 committee last week and the demands only seemed to increase
. For example, ADISQ is asking the government to add a requirement for Internet providers to disclose customer name and address information to copyright owners without court oversight
. Meanwhile, CIMA wants takedown with no due process and unlimited statutory damages
." [Emphasis mine]
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."
Canadian Music Industry Takes Aim At Google, Facebook, Reddit & Tech Startups With Bill C-11 Demands
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.
Canadian Government Has Consulted on Copyright but Won't Consider How Its Law Will Be Enforced
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
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.
Letters to the Copyright Office: Why I Jailbreak
(Image: Jailbreaking the iPhone - 06, a Creative Commons Attribution Share-Alike (2.0) image from yugen's photostream)
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