Michael Geist Blog

Ten Years of Internet Law News

Michael Geist — Mon, 09 Nov 2009 09:42:29 +0100

While readers of this blog may be more familiar with my blog postings or regular technology law columns, I also compile a daily Internet law news bulletin that is distributed daily by the Bureau of National Affairs in Washington, DC. Today marks the 10th anniversary of Internet Law News. My thanks to all the readers and particularly to Daniel Strigberger for his ongoing assistance in pulling ILN together each day. To mark the occasion, I've posted the first ILN from November 9, 1999, complete with stories on Nortel, a new ICANN board, and a forthcoming anti-cybersquatting law. To subscribe to ILN (it's free), visit BNA.

INTERNET LAW NEWS - NOVEMBER 9, 1999
Compiled by Professor Michael Geist, University of Ottawa Law School
For subscription information, scroll to the end of this email

Analysis or more likely speculation continues in the aftermath of the Microsoft finding of fact decision. The same sources noted yesterday continue to provide comprehensive coverage.

Last week Nortel tried to stop former employees from moving to a rival in a Quebec court. This week, SAP America filed a lawsuit in Pennsylvania state court alleging that Siebel Systems unfairly hired 27 key SAP employees.
http://news.cnet.com/news/0-1008-200-1431984.html?tag=st.ne.1002.tgif?st.ne.fd.gif.f

Apple Computer obtained an injunction preventing Future Power from selling the E-Power computer, an iMac look alike.
http://www.wired.com/news/technology/0,1282,32408,00.html
http://www.pathfinder.com/time/digital/daily/0,2822,33938,00.html

Passage of the U.S. Anti-Cybersquatting Bill is apparently increasingly likely. Yesterday a compromise proposal was added to the Satellite Home Viewers Act making a presidential veto less likely, reports the New York Times.
http://www.nytimes.com/library/tech/99/11/cyber/capital/09capital.html

Another day, another cybersmearing action. Fruit of the Loom has launched an action to try to uncover who is behind some negative postings on a Yahoo chat board, reports the Wall Street Journal (subscription required).
http://interactive.wsj.com/articles/SB942090668107112310.htm

Meanwhile, Law News Network provides an excellent look at the issue of online anonymity and cybersmearing lawsuits.
http://www.lawnewsnetwork.com/stories/A9068-1999Nov5.html

The FTC conducted another public workshop on privacy yesterday with privacy advocates voicing concerns about protections against online profiling.
http://www.wired.com/news/reuters/0,1349,32415,00.html
http://www.washingtonpost.com/wp-srv/business/feed/a40703-1999nov9.htm

Real Networks is all over the news today. First, Truste has completed its review of Real Networks - the software maker gets to keep its seal despite the privacy problems of the past couple of weeks.
http://news.cnet.com/news/0-1005-200-1431844.html?tag=st.ne.1002.bgif?st.ne.fd.gif.c
http://www.salon.com/tech/log/1999/11/09/truste/index.html
http://www.thestandard.net/articles/display/0,1449,7536,00.html

Meanwhile, Real Networks responded to concerns about potential privacy leaks in Real Player by releasing its newest version without a global unique identifier (GUID).
http://www.newsbytes.com/pubNews/99/139062.html

Finally, in the aftermath of the Real Jukebox privacy issue, a California lawyer has launched a $500 million class action lawsuit against Real Networks alleging violation of state unfair business practices.
http://www.nytimes.com/library/tech/99/11/biztech/articles/09real.html

The Canadian government is set to unveil its long awaited consumer protection guidelines for e-commerce today. The National Post provides an early scoop.
http://www.nationalpost.com/financialpost.asp?f=991109/121784.html

EU Ministers yesterday delayed plans to regulate electronic money institutions following a late objection from the European Central Bank, reports the Financial Times.
http://www.ft.com/nbearchive/email-neteq2d12f6.htm

If you find the 37 character limit for domain names imposed by NSI a problem, INWW, one of five new ICANN accredited registrars has the answer. It will register names with up to 63 characters.
http://www.newsbytes.com/pubNews/99/139072.html

Much to the frustration of some in the U.S., there are more Canadians on the board of ICANN than Americans. The National Post provides a profile of Jonathan Cohen, one of the Canadian board members.
http://www.nationalpost.com/financialpost.asp?s2=canadianbusiness&f=991109/121865.html

The Wall Street Journal reports that China has drafted rules banning Internet foreign investment (subscription required).
http://interactive.wsj.com/articles/SB942084747991184903.htm

Online fraud apparently is not only a problem in North America. This report from Australia highlights the activities of Australian regulators combating the practice.
http://www.it.fairfax.com.au/e-commerce/19991109/A31715-1999Nov8.html

There is another entrant into the online dispute resolution business. I-Courthouse, founded by two California attorneys, opened its doors yesterday.
http://www.newsbytes.com/pubNews/99/139053.html

Global Reactions to ACTA

Michael Geist — Mon, 09 Nov 2009 08:27:24 +0100

The reaction to revelations about the Internet provisions of the Anti-Counterfeiting Trade Agreement continue. Notable articles include:

Canada: Still-murky copyright treaty could change web as we use it
New Zealand: New Zealand should not sign international piracy agreement
Australia: ISPs Focus of Piracy Talks
Australia: Fighting Piracy - three strikes and you're out?
Spain: La negociación secreta de un acuerdo mundial sobre el 'copyright' alarma a los internautas
United States: Obama's Hollywood Sellout
United States: New Anti-Counterfeiting Trade Agreement Looks to take DMCA Globally

CBC's As It Happens on ACTA

Michael Geist — Fri, 06 Nov 2009 20:49:51 +0100

Earlier tonight I appeared on CBC's As It Happens to discuss ACTA. An MP3 version of the interview is available.

Comparing Canadian iPhone Costs

Michael Geist — Fri, 06 Nov 2009 20:48:22 +0100

The Financial Post has a good comparison of iPhone costs among the three Canadian carriers. The bottom line? Virtually no difference in price for most users.

Reporting on WIPO IP Enforcement Meeting

Michael Geist — Fri, 06 Nov 2009 20:46:56 +0100

As delegates were meeting in Seoul, Korea on ACTA, WIPO was holding an IP enforcement meeting. Details from KEI and IP Watch.

The Leaked ACTA Document

Michael Geist — Fri, 06 Nov 2009 09:18:42 +0100

As the ACTA story begins to capture mainstream media attention (front page of the Ottawa Citizen, coverage from the Washington Post, NZ Herald, the Atlantic, Wired), the press release from the now-concluded Seoul talks should be released shortly [update: release out, exactly as predicted]. If the past releases are any indication, it will thank the Korean government and blandly describe the talks on Internet and criminal provisions. More informative is the actual document that served as the basis for my postings earlier this week. It is embedded below (direct PDF download).

ACTA Negotiations, Day Three: Secret Talks on Transparency

Michael Geist — Thu, 05 Nov 2009 10:30:53 +0100

The current round of ACTA negotiations wrap up later today in Seoul, Korea. Having spent the first day focused on the now-leaked Internet provisions and the second day on the leaked criminal provisions, negotiators will spend this morning discussing whether they should make the draft treaty public. Many countries continue to face pressure on the transparency issue, with KEI posting a public letter to U.S. President Barack Obama this week on the issue. Past indications are that there is a split - some countries favour making the draft available immediately, while others prefer ongoing secrecy until the treaty is completed. Compromise positions apparently include allowing individual countries to make available text for which they are responsible.

At this stage, even ACTA supporters should be supportive of greater transparency. First, everything seems to leak anyways, so the substance of the treaty is already broadly known. Of course, there are specifics that have been shielded from public view, but there is enough out there to have generated an enormous backlash. Second, ACTA is quickly becoming so broadly discredited that it will be nearly impossible to garner public support for the treaty. "The secret copyright treaty" is hardly a selling feature for a treaty that may be dead-on-arrival in the minds of citizens around the world. Third, it is time for countries to make transparency a condition of participation. I have my doubts about the treaty as a whole - the recent Internet leaks should make it a non-starter from a Canadian perspective - but even if the substance is put to the side, governments should not be supporting secretive copyright talks.

The talks will end at 12:30 (Seoul time) with the release of a joint statement describing who participated along with a generic statement indicating discussions focused on Internet enforcement, criminal provisions, and transparency matters. It will conclude by indicating that the next round will be hosted by Mexico (most likely) in early 2010. But on a day devoted to secret talks on transparency, governments should drop the diplomatic language and be prepared to open up or get out.

Auditor General Wields Crown Copyright To Demand Takedown

Michael Geist — Thu, 05 Nov 2009 09:09:39 +0100

Crown copyright concerns were raised repeatedly during this summer's copyright consultation as many groups expressed the view that government works should be treated as public domain. The issue generated some surprise from Industry Minister Tony Clement, who asked for examples about why crown copyright was a problem. This morning, the Auditor General provided a helpful example as her office has sent takedown demands to the Globe and Mail and Scribd for posting one chapter from her report (Globe article, Scribd post). The office argues that crown copyright applies and that a written request for permission on a case-by-case basis is required. Leaving aside the fact that this is arguably fair dealing - it is news reporting and consists of one chapter from a much larger report - the very notion that Canadians need advance permission to post a portion of government report runs counter to the Auditor General's own efforts at government transparency and efficiency. The Auditor General should be encouraging broad dissemination of her work, not sending legal demand letters to shut down Internet postings.

This incident highlights yet again why the Canadian government needs a far more progressive approach to its own copyright policy. It should be leading by example by: (1) dropping crown copyright and (2) adopting Creative Commons licences on its work and sites to promote the use of government documents without permission (see this list for similar examples from around the world).

Update: The Globe has reposted the chapter on Scribd roughly 24 hours after initially taking it down. It is good to see the paper stand up for fair dealing in this case.

Benkler Responds to Berkman Broadband Study Criticism

Michael Geist — Wed, 04 Nov 2009 09:34:12 +0100

Professor Yochai Benkler has posted a response to some of the criticism of the FCC-commissioned Berkman study on broadband.

CBC Argues for Regulated Cable

Michael Geist — Wed, 04 Nov 2009 09:33:05 +0100

The CBC has called for a pared-down basic all-Canadian cable package with content and price to be set by CRTC.

ACTA Negotiations, Day Two: What's On Tap

Michael Geist — Wed, 04 Nov 2009 09:32:00 +0100

As ACTA negotiators head into day two of the Seoul, Korea meetings, the global response to the Internet provisions in the chapter (the issue from day one) has been remarkable. Articles and postings from around the world (Germany, Italy, Sweden, UK, New Zealand, the Netherlands, U.S., Germany, Italy, Hungary, the Netherlands), coverage from some of the most popular websites (Gizmodo, ReadWriteWeb, TorrentFreak, BoingBoing, Slashdot), as well as expert commentary (EFF, Electronic Frontier Australia) has been swift and universally concerned with ACTA.

According to the official agenda, in a few hours talks will continue on the Internet provisions and then move into the criminal provisions chapter. I discussed details of the Internet chapter yesterday, in a post that highlights the creation of a Global DMCA that would severely limit the ability for signatories to use the flexibility found in the WIPO Internet treaties. Moreover, the provisions would pave the way for a globalized three-strikes and you're out system, as ISP safe harbours would be premised on policies to terminate subscribers in appropriate circumstances.

It is worth highlighting the ongoing criminal provisions as well. As previously leaked, the U.S. and Japan supplied the initial text for this chapter. Their proposal included:

extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, non-commercial infringement could lead to criminal penalties
each country would be required to establish a laundry list of penalties - including imprisonment - sufficient to deter future acts of infringement. The specific proposed language was "include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with a policy of removing the monetary incentive of the infringer."
trafficking in fake packaging for movies or music would become a criminal act. The fake packaging provision provided:

Each Party shall provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:
(a)    counterfeit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
(i)    a phonogram,
(ii)     a copy of a computer program or other literary work,
(iii)    a copy of a motion picture or other audiovisual work,
(iv)    documentation or packaging for such items; and
(b)     counterfeit documentation or packaging for items of the type described in subparagraph (a); and
(c)    illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany items of the type described in subparagraph (a).

Criminalization of unauthorized camcording:

Each Party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright or related rights in a motion picture or other audiovisual work, knowingly uses an audiovisual recording device to transmit or make a copy of or transmits to the public the motion picture or other audiovisual work, or any part thereof, from a performance of the motion picture or other audiovisual work in a motion picture exhibition facility open to the public.

On top of these provisions, there are full chapters on civil enforcement (including mandatory statutory damages) and border measures (including blocking shipments and new search powers). This is why I concluded yesterday that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.

The ACTA Internet Chapter: Putting the Pieces Together

Michael Geist — Tue, 03 Nov 2009 10:05:14 +0100

The Anti-Counterfeiting Trade Agreement negotiations continue in a few hours as Seoul, Korea plays host to the latest round of talks. The governments have posted the meeting agenda, which unsurprisingly focuses on the issue of Internet enforcement [UPDATE 11/4: Post on discussions for day two of ACTA talks, including the criminal enforcement provisions][UPDATE 11/5: Post on discussions for day three on transparency]. The United States has drafted the chapter under enormous secrecy, with selected groups granted access under strict non-disclosure agreements and other countries (including Canada) given physical, watermarked copies designed to guard against leaks.

Despite the efforts to combat leaks, information on the Internet chapter has begun to emerge (just as they did with the other elements of the treaty). [Update 11/6: Source document now posted] Sources say that the draft text, modeled on the U.S.-South Korea free trade agreement, focuses on following five issues:

1.   Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2.   A requirement to establish third-party liability for copyright infringement.

3.   Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4.   Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5.   Rights Management provisions, also modeled on U.S. free trade treaty language.

If accurate (and these provisions are consistent with the U.S. approach for the past few years in bilateral trade negotiations) the combined effect of these provisions would dramatically reshape Canadian copyright law and to eliminate sovereign choice on domestic copyright policy. Having just concluded a national copyright consultation, these issues were at the heart of thousands of submissions. If Canada agrees to these ACTA terms, flexibility in WIPO implementation (as envisioned by the treaty) would be lost and Canada would be forced to implement a host of new reforms (this is precisely what U.S. lobbyists have said they would like to see happen). In other words, the very notion of a made-in-Canada approach to copyright would be gone.

The Internet chapter raises two additional issues. On the international front, it provides firm confirmation that ACTA is not a counterfeiting treaty, but a copyright treaty. These provisions involve copyright policy as no reasonable definition of counterfeiting would include these kinds of provisions. On the domestic front, it raises serious questions about the Canadian negotiation mandate. Negotiations from Foreign Affairs are typically constrained by either domestic law, a bill before the House of Commons, or the negotiation mandate letter. Since these provisions dramatically exceed current Canadian law and are not found in any bill presently before the House, Canadians should be asking whether the negotiation mandate letter has envisioned such dramatic changes to domestic copyright law. When combined with the other chapters that include statutory damages, search and seizure powers for border guards, anti-camcording rules, and mandatory disclosure of personal information requirements, it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea.

Update: Further coverage from IDG and Numerama.

Update II: InternetNZ issues a press release expressing alarm, while EFF says the leaks "confirm everything that we feared about the secret ACTA negotiations." Electronic Frontiers Australia provides an Australian perspective on the ACTA dangers.

Update III: There are additional articles and postings from around the world (Germany, Italy, Sweden, UK, New Zealand, the Netherlands, U.S., Germany, Italy) as well as coverage from some of the most popular websites (Gizmodo, ReadWriteWeb, TorrentFreak, BoingBoing, Slashdot).

Update IV: See additional posts on Day two of the ACTA talks (Criminal provisions) and Day three (transparency).

Govt Responds To IP Enforcement Criticism, Proposes Changes to Proceeds of Crime Rules

Michael Geist — Tue, 03 Nov 2009 08:27:09 +0100

One of the longstanding demands from lobby groups seeking reforms to Canada's IP enforcement rules has been changes to the Proceeds of Crime Program. The POCP permits the forfeiture of wealth accumulated through criminal activities. While many statutes qualify, the Copyright Act does not. The rationale for excluding the Copyright Act was to ensure that creators - not the government - received whatever assets could be seized arising from cases of infringement. As the government now notes:

Under the Copyright Act, a copyright owner is able, pursuant to section 35 of the Act, to claim damages and profits from infringers. Because of a concern that the application of the proceeds of crime provisions could undermine a copyright owner’s ability to recover damages and profits in a potential civil action launched for copyright infringement, the Copyright Act and its offences were excluded from the application of Part XII.2. However, experience has shown that very few civil claims against criminal infringers have been made. Indeed, representatives from the intellectual property industry have sought to have the Criminal Code’s confiscation of proceeds regime apply to the proceeds obtained from the commission of copyright offences.

The government reports that it consulted with several copyright groups, including ACTRA, CFTPA, CMPDA, ESA, CRIA, and MIAC. In light of their support, it is proposing to remove the exclusion of the Copyright Act from the scope of the POCP (hat tip: Rick Theis).

Wagman on the Fee-For-Carriage Fight

Michael Geist — Tue, 03 Nov 2009 08:24:15 +0100

"What this is really about is a profound lack of imagination by all involved."

CBC on Fee-For-Carriage

Michael Geist — Tue, 03 Nov 2009 08:23:06 +0100

CBC's The National covered the fee-for-carriage issue last night, including a shout-out to greater consumer choice.