Island Linux Bits and Bytes of Technology

Polish Prime Minister Donald Tusk has announced the country is suspending its ratification of the Anti-Counterfeitint Trade Agreement. The announcement comes following huge protests in cities across the country.

Last week, I delivered a keynote address on copyright issues at the University of South Florida St. Petersburg. The talk focused on the activism around SOPA and assessed the global strategies employed by the U.S. and copyright lobby groups of shifting away from WIPO toward closed negotiations such as the Anti-Counterfeiting Trade Agreement.

Slovenia's Ambassador to Japan offers a full explanation for why she signed ACTA:

I signed ACTA out of civic carelessness, because I did not pay enough attention. Quite simply, I did not clearly connect the agreement I had been instructed to sign with the agreement that, according to my own civic conviction, limits and withholds the freedom of engagement on the largest and most significant network in human history, and thus limits particularly the future of our children.

The Economist reports on the growing boycott of Elsevier by thousands of academics over open access issues.

Transport Canada has reportedly issued a DMCA takedown notice to Scribd over an on-the-record response it provided to a journalist. The move is particularly odd (though not unprecedented, see here and here) given the document was issued to a journalist and the government changed its crown copyright licence last year to allow for private and non-commercial public use without the need for further permission.

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 Bill C-11 has generated considerable discussion online and in the mainstream media (CBC, Financial Post). 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.

These claims involve two different issues with Bill C-11. The first are the digital lock provisions, which dozens of organizations (including businesses, the Retail Council of Canada, creator groups, consumer groups, and education associations) have argued are overly restrictive. The proposed solution is to link circumvention of a digital lock with actual copyright infringement, an approach that is consistent with the WIPO Internet treaties and has been adopted by trading partners such as New Zealand and Switzerland (Canada even proposed the approach in Bill C-60). These amendments would not legalize hacking businesses, but rather ensure that the same balance that exists offline is retained in the digital environment.


The second issue involves expansion of the "enabler provision" currently proposed in Bill C-11. I have pointed out that Canadian law appears to effectively address these sites as the music industry is currently suing isoHunt for millions of dollars based on the current law. In the event that more certainty is needed, the current enabler provision would grant even more powers to rights holders to target these sites. Yet that is apparently not good enough for the music, software, and movie lobby groups, who want to expand the enabler provision to include SOPA-like liability as well as add website blocking injunctions to Canadian law. The danger with this approach is that it threatens to target perfectly legitimate websites. Arguing against an overbroad enabler provision is not siding with illegal sites, but rather ensuring that legal ones are not caught by the dragnet.

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

The music industry is seeking a huge overhaul of Bill C-32 that makes any requests for adjusting the digital lock rules look minor by comparison. As it escalates the rhetoric by claiming critics stand with piracy, it is apparent that the lobby groups' fight to blend a Canadian DMCA with a Canadian SOPA will only intensify in the weeks ahead.

Reports indicate that Industry Minister Christian Paradis could unveil the government's spectrum auction and telecom foreign ownership policies this month. My weekly technology law column (Toronto Star version, homepage version) provided a preview of some the key issues. While interest in spectrum auction policy is typically limited to telecom companies and business analysts, all Canadians have a stake in this decision. The available spectrum - known as the 700 MHz spectrum - opens up a host of possibilities for new innovation, competitors, and open Internet access. It is viewed as particularly valuable spectrum since it easily penetrates walls, making it ideal for delivering wireless high-speed Internet services.

Auctioning the spectrum raises a host of critical policy choices.


Topping the list is whether the government tinkers with the auction framework to help foster greater marketplace competition. Some of the large incumbents unsurprisingly favour an “open auction” with no bidding limits, but assuming Paradis concludes that some measures are needed, the choice will likely come down to either a spectrum set-aside that reserves some spectrum for new entrants and smaller companies or spectrum caps.

The last spectrum auction included a set-aside, which opened the door to a handful of new competitors such as Globalive, PublicMobile, and Mobilicity. A further set-aside may make sense since this round of new entrants may look to use the spectrum primarily for wireless broadband services, providing a potential alternative to the cable and telecom dominance.

If another set-aside proves too unwieldy, a spectrum cap, which would limit the amount of spectrum any single company could hold, may emerge as the alternative. A spectrum cap might prove effective if combined with two additional conditions.

First, the implementation of a use-it-or-lose it principle that would require all bidders to use the spectrum within a defined period. The use-it-or-lose-it approach would help guard against the hoarding of spectrum, particularly for incumbents who may overbid in the hopes of keeping new competitors out of the market.

Second, safeguards against opportunistic flipping of the spectrum with the prohibition on its sale within the first five years of the auction. The trio of policies – caps, mandatory use, and a block on transfer, may increase the number of successful bidders.

Another critical issue is who should be entitled to bid for the spectrum. The last spectrum auction featured Canadian ownership requirements, thereby limiting potential entrants. Given that Canada is one of the only developed countries that has retained significant telecom foreign ownership restrictions, the auction provides a tailor-made opportunity to eliminate the restrictions by opening the market to all bidders.

The spectrum policy decision will also determine which spectrum is available for auction and which is reserved for alternate purposes. The government has already indicated that it plans to grant some of the spectrum to law enforcement agencies, which intend to create their own emergency wireless network.

Many leading technology companies have recommended allocating some of the spectrum for unlicensed purposes. This spectrum, which would be free to anyone to use without the need for licence or government approval, could yield new services and technologies.

Beyond the technical details of the spectrum auction, the final billion-dollar question is what the government should do with the auction proceeds. While the $4 billion in proceeds from the last auction went into general revenues, this auction represents the best – perhaps only – opportunity to access billions of non-tax dollars for the digital economy.  The money could be used to support broadband initiatives, digital content creation, and digital skills programs. 

Canadian superstar Neil Young on piracy:

It doesn't affect me because I look at the internet as the new radio. I look at the radio as gone. [...] Piracy is the new radio. That's how music gets around. [...] That's the radio. If you really want to hear it, let's make it available, let them hear it, let them hear the 95 percent of it.

Ariel Katz adds his voice to the criticisms from Howard Knopf and Sam Trosow on the recent agreement between Access Copyright and two Ontario universities.

The Guardian features an exclusive interview with Kader Arif, the lead ACTA negotiator in the European Parliament who quit his position over objections that review process is a charade.

Last night I appeared on George Stroumboulopoulos Tonight with a short "Soapbox" segment to explain mounting concerns over Bill C-11. The program has posted a video version of my comments on some of the digital lock issues in the bill and the demands for SOPA-style amendments.

Akamai has released its latest State of the Internet Report and it finds that Canada continues to slide in global broadband rankings. Last year, the Akamai report was often favoured by those who took issue with criticisms of Canadian broadband, claiming it offered "an objective sanity check" on comparative broadband speeds. If so, even Akamai now finds Canadian broadband declining when compared to other countries.

Just six months ago, Canada was tied for 9th in average broadband speed. According to the latest report, Canada now sits tied with Hungary for 14th behind countries that include the United Arab Emirates, Romania, the Czech Republic, and Ireland. On the peak connection speed, Canada ranks 19th in the world. The data isn't very impressive on the mobile broadband metrics either. The mobile broadband speed measured carriers around the world including one Canadian carrier. The Canadian carrier ranked 68th worldwide for average broadband speed, below carriers in every region of the world.

The video from Ontario Privacy Commissioner Ann Cavoukian's excellent forum on lawful access is now available. Well worth watching.

The CRTC yesterday released new net neutrality complaints data. The data shows a significant increase in the number of complaints in the last quarter of 2011 when compared with the prior two years. I wrote about the complaints issue in July 2011 based on data obtained under the Access to Information Act.

European opposition to ACTA continues to mount with Poland's culture minister admitting that it may not be approved by the Polish parliament and the Slovenian ambassador to Japan apologizing for signing ACTA last week.

Distributel, another leading independent ISP, has announced that it plans to offer unlimited plans to customers in Quebec as a consequence of the CRTC capacity based billing decision.

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 (there are even plans for public protests beginning to emerge). The interest has resulted in some completely unacceptable threats and 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).  Even the mainstream media is getting into the mix, with the Financial Post's Terrance Corcoran offering his "expert" legal opinion that CRIA's lawyers are likely to lose their lawsuit against isoHunt. 

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. The first eight questions address the links between Bill C-11 and SOPA as well as proposed changes to the current copyright law. The final two question focus on ACTA and the TPP.


1.    What, if anything, are the links between current Bill C-11 and SOPA?

Bill C-11, the Canadian copyright reform bill, is the latest iteration of several attempts at Canadian copyright reform. There is a lot to like about the bill: it includes an expansion of the fair dealing provision, new consumer rights for format shifting, time shifting, and backup copies, a provision facilitating user generated content, a new distinction between commercial and non-commercial infringement, as well as a fair and effective approach to Internet provider liability. Some of these provisions are not perfect (flexible fair dealing would be better than the C-11 model, eliminating statutory damages for non-commercial infringement is needed), but the bill is far better than prior Conservative copyright bills.

As I have stated since its introduction, Bill C-11 is flawed but fixable. The major problem with the bill remains the digital lock provisions, which eviscerate many of the new consumer rights and undermine fair dealing. The approach has been widely criticized by dozens of groups representing business, creators, consumers, educators, and librarians. The proponents of the digital lock rules are chiefly U.S.-backed lobby groups, the same groups that were behind SOPA in the U.S. In fact, there is considerable evidence that the Canadian approach is a direct result of ongoing U.S. pressure on the issue. Had SOPA passed, it included a provision requiring further linkages between U.S. trade pressure and intellectual property policy.

2.    Could Bill C-11 become more like SOPA?

Yes. Last week, I noted that music and entertainment software lobby groups have proposed SOPA-style changes to C-11. For example, the industry wants language to similar to that found in SOPA on blocking access to websites, demanding new provisions that would "permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites." Section 102 of SOPA also envisioned blocking of websites.

Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision, which spoke of sites "primarily designed or operated for the purpose of...offering goods or services in a manner that engages in, enables, or facilitates" infringement, raised fears that it could be used to shut down mainstream sites such as Youtube.

According to a music industry document, Bill C-11's "enabler provision" should be expanded to include "services that are primarily operated to enable infringement or which induce infringement." Those demands are echoed by the Entertainment Software Association of Canada, which called on the government to "amend the enabling provision to ensure that it applies to services that are "designed or operated" primarily to enable acts of infringement." Both groups also want statutory damages added to the enabler provision so that liability can run into the millions of dollars for a target website.

Bill C-11 committee member Dean Del Mastro, a Conservative MP, specifically referenced the enabler provision in a recent interview about potential changes and there are rumours that the U.S. government is pushing the Canadian government to toughen the enabler provision (while keeping the digital lock rules unchanged).

3.    Are there plans to add "three strikes and you're out" Internet termination rules to Bill C-11?

The government has indicated that it does not want to add Internet termination (often called graduated response) to the bill.  However, the music industry is demanding that Internet providers be required to adopt a termination policy for subscribers that are alleged to be repeat infringers. According to the music industry document:

To incent service providers to cooperate in stemming piracy by requiring them to adopt and reasonably implement a policy to prevent the use of their services by repeat infringers and by conditioning the availability of service provider exceptions on this being done.

This demand would move Canada toward the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement.

4.    Are these SOPA-style changes simply technical amendments?

No. The expansion of the enabler provision to include SOPA-style rules could create new legal risk for legitimate websites.  For example, last week I illustrated how the rules could be used to target online video sites such as Youtube.  If those proposed changes are adopted, it could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation.

5.    Can Bill C-11 be fixed?

I believe the answer is yes. First, the SOPA-style demands, including website blocking, Internet termination, and expanded liability, must be rejected. Second, the digital lock provisions must be fixed by linking circumvention of digital locks to copyright infringement. Such an approach enjoys broad support as it would provide legal protection for digital locks, be consistent with the WIPO Internet treaties, and follow the model of trading partners such as New Zealand and Switzerland.

6.    Aren't these digital lock rules needed to help the music industry?

No. As the industry itself now promotes, Canada is a leader when it comes to online music sales. Canada is the 6th largest market for recorded music in the world, ranking 6th for digital sales and 7th for physical sales. Digital sales have grown faster in Canada than the U.S. for the past five consecutive years. There are wide range of online music services in Canada, all created without restrictive digital lock rules. I delivered a full talk on the issue titled Why Copyright Reform Is Not the Cure for What Ails the Music Industry last year at the Nova Scotia Music Week conference (talk sources).

7.    Aren't these digital lock rules needed to help the entertainment software industry?

No. The Entertainment Software Association of Canada has been one of the most outspoken proponents of restrictive digital lock rules. Yet its own evidence demonstrates why balanced digital lock rules do not put the industry at risk. In 2007, it released a report called Entertainment Software: The Industry in Canada, which estimated that there were approximately 9,000 video game jobs in Canada. Four years later, the industry has grown to 16,000 jobs, yet Canada has had no digital lock legislation during that period. In other words, without any changes to Canadian copyright law, the industry has emerged as a major success story.

Not only is the claim unsupported by years of experience, but when the industry was recently asked about perceived risks, copyright concerns fell well down on the list. Last year, the ESAC commissioned a study by SECOR Consulting that surveyed the industry and asked for the top three risks faced by the Canadian video game industry over the next two to five years. Copyright ranked far behind many other concerns.

8.   Aren't these digital lock rules needed to be compliant with international law?

No. While digital lock rules are needed to comply with the WIPO Internet treaties (which Canada has signed but not ratified), the treaties offer considerable flexibility in their implementation. I addressed the issue in great detail in a peer-reviewed article on the topic. The article is part of a larger book on Bill C-32 (the predecessor to C-11) called From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda. It is available as a Creative Commons licensed download.

9.    Where does Canada stand on the Anti-Counterfeiting Trade Agreement (ACTA)?

Canada signed ACTA in October of last year. At the moment, ratification of ACTA will require legislative change in Canada.  Some of those changes are contained in Bill C-11, but not all. A second intellectual property enforcement bill is expected to be introduced in Canada later this year that will provide new powers to customs officials as well as other measures. The Department of Foreign Affairs is presently conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2.

10.    Where does Canada stand on the Trans Pacific Partnership Agreement (TPP)?

The Canadian government filed notice of a public consultation on December 31, 2011 on the possible Canadian entry into the Trans Pacific Partnership negotiations, trade talks that could result in an extension in the term of copyright that would mean nothing new would enter the Canadian public domain until 2032 or beyond. The TPP covers a wide range of issues, but its intellectual property rules as contemplated by leaked U.S. drafts would extend the term of copyright, require even stricter digital lock rules, restrict trade in parallel imports, and increase various infringement penalties. I've written about the effect in Canada here, here, and here.

The major intellectual property lobby groups want to keep Canada out of the deal until we cave to the current U.S. copyright demands. The IIPA, which represents the major movie, music, and software lobby associations, points to copyright reform and new border measures as evidence of the need for Canadian reforms and states "we urge the U.S. government to use Canada’s expression of interest in the TPP negotiations as an opportunity to resolve these longstanding concerns about IPR standards and enforcement." These are the same groups that supported SOPA in the U.S.

The consultation is open until February 14, 2012. All it takes a single email with your name, address, and comments on the issue. The email can be sent to consultations@ international.gc.ca. Alternatively, submissions can be sent by fax (613-944-3489) or mail (Trade Negotiations Consultations (TPP), Foreign Affairs and International Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).

Over 2,000 academics have joined a boycott against Elsevier Publishing, one of the world's largest academic publishers, over its support of an anti-open access bill.

Mike Masnick of Techdirt-fame has written a new report commissioned by the Consumer and Communications Industry Association that demonstrates how the entertainment industry is growing at a rapid pace.

The University of Toronto and Western have signed an agreement with Access Copyright that will see their students pay $27.50 per year to the copyright collective.

Update: Howard Knopf and Sam Trosow both provide analysis of the agreement explaining why it represents a big win for Access Copyright.