Copyright Notice & Notice is Flawed

You may have read about the Supreme Court of Canada deciding Rogers can be paid its costs for telling a copyright owner the identity of movie downloading customers. What isn’t talked about is the notice and notice system that puts this in motion.

A summary of the Rogers v Voltage decision is here. Omar has written about this on Slaw as well.

This is a complex and controversial issue. The essence is that sections 41.25 and 41.26 of the Copyright Act allow the owner of a copyright (eg a movie studio) to create a notice to send to people who breached copyright by downloading the movie, or by allowing others to then upload the movie. At this point the copyright owner only knows the downloader’s IP address and their internet service provider (ISP) – not the person’s name or contact information. The ISP is obligated to forward that message on – hence the term notice and notice.

The concept of notice and notice sounds good on the surface. But no matter whether you side with the copyright owner or the downloader – it doesn’t work in practice – and doesn’t help either side.

If a consumer saw a notice that simply said:

We own movie X, we know you downloaded it, and your sharing software is allowing others to download from you. Delete it, and we will leave you alone. If you don’t, we might sue you.

most consumers would comply.

But in what I’ve seen, the notice ends up being a long email with that message buried closer to the end than the beginning. So the consumer’s first inclination is to delete it assuming it is just another unimportant message from their ISP that they can ignore along with other marketing, scam, and quasi- spam emails.

Like any email, if you don’t get the message across immediately and bluntly, it won’t be read.

The email tends to be long as the copyright owner must explain who it is, why they are emailing, and what they know about the consumer’s behaviour to convince the consumer it is legitimate, and that the consumer needs to stop. ISPs tend to add their own message on top of the copyright owner’s email. They want to clarify what is happening, who it is coming from, that they are obligated to send it on, and they won’t reveal the consumer’s identity unless ordered by a court. And both of those messages might be in both official languages.

That is understandable, but until those messages are structured to start off simple and blunt, and explain all that below it, they won’t be effective.

Cross-posted to Slaw

Cloud storage, privacy, and Megaupload

Today’s Slaw post:

The ongoing Megaupload case is a controversial lightning rod case for issues on cloud storage, privacy and copyright.  Megaupload basically ran a file storage and viewing service.  The US Department of justice shut them down, seized assets, and launched criminal prosecutions alleging that it is an organization dedicated to copyright infringement. 

Ben Schorr mentioned the case on Slaw recently, starting with the comment that “One thing has become clear in the last few months: Hollywood has declared war on the Internet.”  

Wikipedia summarizes the situation well, and points out that:

Techdirt argued that while the founder of Megaupload had a significant history of “flouting the law”, evidence had potentially been taken out of context or misrepresented and could “come back to haunt other online services who are providing perfectly legitimate services”.[81] Eric Goldman, a professor of law at Santa Clara University, described the Megaupload case as “a depressing display of abuse of government authority”. He pointed out that criminal copyright infringement requires that willful infringement has taken place, and that taking Megaupload offline had produced the “deeply unconstitutional effect” of denying legitimate users access to their data.[5]

Concerns include the arbitrary way the site was shut down, leaving the files of legitimate users stranded.  Also the possible over-reaching effect on legitimate cloud storage sites and file sharing.

The fight has come to Canada as well.  US prosecutors asked the Canadian AG to obtain a court order to send mirror imaged copies of 32 servers in Canada to US prosecutors.  The Ontario Superior Court of Justice refused to give the order based on the notion that the request was overly broad, and encouraged counsel to try to agree on the scope of material that would be relevant.

I find it interesting that the same Department of Justice that has been unrelenting and perhaps over reaching in the Megaupload case, is, according the the CIO blog:

giving a qualified endorsement of an update to a 1986 privacy law that leading cloud-service providers, public-interest groups and others argue is woefully out of step with the current methods of sending and storing communications.

In testimony before a House subcommittee on Tuesday, Elana Tyrangiel, acting assistant attorney general at the DoJ’s Office of Legal Policy, affirmed the Obama administration’s support for an overhaul of the Electronic Communications Privacy Act (ECPA) to provide stronger privacy protections for Webmail, documents stored online and other cloud services.

Cloud storage can be a useful tool – but be careful what you put there, use services with a good reputation, and keep duplicates elsewhere.  If your data is sensitive, consider your own encryption so no one else can see the contents.

Why Sopa & Protect-ip are bad ideas

There is proposed legislation in the US that would give broad rights to block entire web sites based on mere allegations that a small part of it might have some infringing content.   The legislation is backed by the entertainment industry as an anti-piracy measure.  There is a groundswell of opposition against the legislation, but it is still very possible that it could become law.

Mike Masnick of Techdirt has a great article explaining in detail what the problem is.



US ISP’s adopt (futile) 6 strike approach to illegal file sharing

That’s the title of my Slaw post for today.  It reads as follows.

Last week I mentioned a survey about the proposed UK 3 strikes law that concluded that it would not significantly deter filesharing behaviour. And added my views on why such laws are not a good idea.

Here’s a Reuters article that starts off by saying:

“U.S. Internet service providers, including Verizon Communications Inc, Comcast Corp, Time Warner Cable Inc, Cablevision Systems Corp and AT&T Inc agreed to alert customers, up to six times, when it appears their account is used for illegal downloading. Warnings will come as e-mails or pop-up messages.

If suspected illegal activity persists, the provider might temporarily slow Internet speed or redirect the browser to a specific Web page until the customer contacts the company. The user can seek an independent review of whether they acted legally.”

It is touted as an educational vehicle that will help reduce online copyright infringement.

In my view, that assumption is wrong. Consider all the efforts taken over the last several years to sue music filesharers – which clearly hasn’t had that effect. And consider that every time a lawsuit ends a filesharing site, others immediately pop up to fill the void.

3 strikes – or however many more you want to add – is not the answer.

People download music, movies and TV shows from various locations for many reasons. Fundamentally, I believe its because they want the content, and they want it when they want it. The solution is not to beat people up for wanting to consume your product. The solution is to make your content easy to get, timely, safe from malware, and inexpensive. In other words – find a way to get it to people when and how they want it.

Plethora of Pending IT Legislation

That’s the title of my Slaw post for today.  It reads as follows.

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the “awful access” camp.  Expect more commentary on this from both Michael and David.

US bills introduced to wiretap the net, and arbitrarily shutdown alleged infringers

We get upset when governments outside of North America insist on being able to monitor internet based communications.   But we shouldn’t get too smug about it, as the same thing happens in North America.  See these posts that talk about a new attempt to legislate backdoor internet access in the US, why its a problem, and links to other commentary.  CircleID       Techdirt

The three strikes concept just won’t go away either.  Basically it allows or requires sites or internet access to be shut down based on unproven allegations they are used for infringement.  A new proposed US bill would do that.  See the CircleID link above for their take on that.

Mike Masnick of Techdirt puts that bill in perspective by saying that the same logic used by the proponents of the bill would have in the past banned Hollywood itself, the recording industry, radio, the DVR, and other ubiquitous things.

UPDATE: Also see the EFF take on the backdoor bill.

While copyright collectives help, royalties issue muddy

For the London Free Press – August 16, 2010

Read this on Canoe

[UPDATE: Also take a look at this related Techdirt post entitled The Insanity Of Music Licensing: In One Single Graphic ]

Radio royalties are complex.

On July 9, 2010, the Copyright Board of Canada issued its long-awaited Commercial Radio tariff and reasons. It dealt with payments radio stations must pay to copyright collectives to obtain rights to play music.

The rights to use most music flows through copyright collectives that collect royalties from broadcasters and other users, so they don’t have to deal with rights holders individually. The collectives in turn pay the royalties to the rights holders.

Even with the collectives taking the place of rights holders, the various copyright payments broadcasters must pay for music are complex. Radio stations must pay for six different rights.

The board stated:

A Canadian radio station that broadcasts recorded music off a server reproduces and communicates musical works, performers’ performances and sound recordings. Four copyrights and two remuneration rights must be accounted for.

The board estimates that commercial radio stations will pay a total of $85 million annually in royalties under the new rates, an increase of $13 million over previous rates.

Of the $85 million in royalties, the board estimates $51 million will go to SOCAN, $13 million to Re:Sound, $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

SOCAN administers the exclusive right of the owner of the copyright in a musical work to communicate it to the public by telecommunication for most composers, authors, and publishers.

The second and third rights are the remuneration rights that performers and record companies enjoy when a recording of a musical work is communicated to the public by telecommunication. Re:Sound administers these rights for most eligible performers and makers.

The fourth set of rights is the exclusive right to reproduce a musical work. CSI, SODRAC and CMRRA administer these rights.

The fifth set of rights is the exclusive right to reproduce a sound recording. AVLA and SOPROQ act for most record producers, record companies and artists.

The sixth set of rights is the exclusive right in a performer’s performance to reproduce the performance for a purpose other than the purpose for which authorization was given. ArtistI, ACTRA PRS, AFM Canada Artisl, and others administer this right.

The estimated $85 million in royalties payable by radio broadcasters does not include instances where collectives have not filed tariffs. As a result, the $85 million estimate may be understating the monies payable by radio broadcasters.

The Commercial Radio tariff is a consolidation of several proposed tariffs filed in 2007 and 2008. If the board’s decision ends up being judicially reviewed by the Federal Court of Appeal, a final decision will likely be over a year away.

Ethics of downloading something you’ve already paid for – Techdirt

Techdirt has a post that’s worth a read that talks about a debate sparked by the NY Times and Computerworld about the ethics of downloading something you have already paid for.  Its an issue worth considering, especially in light of an expected new copyright reform bill in Canada.   It ties into issues about format shifting and whether copying is theft when it doesn’t deprive the owner of what they have.

isoHunt operator vows copyright ruling appeal

For the London Free Press – April 19, 2010

Read this on Canoe

n December 2009, isoHunt, a BitTorrent and peer-to-peer search engine, was found liable by a U.S. District Court judge for inducing copyright infringement. The operator of the isoHunt website says he will appeal.

IsoHunt was founded by Canadian Gary Fung in January 2003. According to Wikipedia, thousands of torrents are added to and deleted from the website each day. Users of the website perform more than 40 million unique searches each month.

The isoHunt website is a file search engine, but according to its creator, it does not induce copyright infringement. This distinction is crucial because over the last few years, a number of peer-to-peer service companies have been shut down because they were deemed to have induced copyright infringement.

These players include Napster, shut down in 2001, Grokster and Morpheus, shut down in 2005, and TorrentSpy, shut down in 2008.

BitTorrent websites allow users to download files of any kind directly from the computers of other users. Fung says the isoHunt website is similar to a search engine, such as Google, as the website itself does not store any contents and the files are not downloaded from the servers of the websites, and thus should not be liable for inducing copyright infringement.

The U.S. District Court said Fung had solicited infringement of copyrighted files by the way he has designed his website and by comments he made in interviews and online. For example, the isoHunt website allows users to access the top searches or the top files by category. The website also links users to websites that have torrent files or that invite users to upload copyrighted files. The judge felt Fung was aware of the copyright infringement and actively induced the infringement.

More recently, Judge Stephen Wilson of the U.S. District Court in Los Angeles ordered isoHunt to remove all infringing content from its website.

“It is axiomatic that the availability of free infringing copies of the plaintiffs’ work through defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works,” Judge Wilson said.

Fung said Wilson’s injunction “amounts to nothing less than taking down our search engine . . . We’re discussing the mechanics, the process that is reasonable for an injunction. We’re still trying to hope that the judge will do the right thing.”

IsoHunt has also taken the initiative and sued the Canadian Recording Industry Association (CRIA) to get a court ruling regarding the legality of the website. This came before the Supreme Court of British Columbia in March 2009 for a summary judgment, but the court ordered the matter proceed to trial.

The line where someone becomes liable for a copyright infringement of another is not clear. U.S. courts have found some peer-to-peer service companies liable for providing tools that were deemed to be intended to be used for unlawful copying. But others have created services that essentially allow users to do the same thing but in a way that avoids liability for copyright infringement