Our election coverage is continuing with the final party that held seats in parliament in the last session, the NDP. Just like the other parties, we are focusing on copyright related issues and online privacy related issues.

We will introduce a bill on copyright reform to ensure that Canada complies with its international treaty obligations, while balancing consumers’ and creators’ rights.

The Law Society and lawyer Clive Elliott have come out to support a three strikes law saying that the punishment is no different than a driving penalty and that a punishment like this is not unusual. Meanwhile, Internet NZ has come out publicly against a three strikes law saying that disconnection is way out of line for the offense committed and that disconnection should be removed.

There is a lot of talk about internet access being a human right, but even if it is, the law is still entitled to abridge such rights as punishment for a sufficiently grave illegal act, Elliott says.

If you commit a serious driving offence, he says, you are not just banned from driving the vehicle in which the offence has been committed; you are banned from driving any vehicle. If you are guilty of harassing your domestic partner, you may be served with an order which will also stop you from having contact with your children, even though you did not offend against them.

In any case, Elliott adds, what the Law Society suggests is not a complete ban on accessing the internet, just a ban on holding a personal account. The person under such a penalty can still go to an internet café, “to go on Facebook and all those other things you do on the internet”.

"A disconnection penalty is a response way out of line with the harm caused by infringing file sharing. People are using the Internet for a huge range of important economic and social tasks. Cutting off their accounts is akin to banning someone from using the postal system because they were caught posting copied music CDs. "Nobody would think that was fair. As a matter of good law, penalties for a wrong should be proportionate. The rest of the Bill, with notices and financial penalties, is reasonable. Account disconnection is not. "In pragmatic terms, disconnection is ineffective because people generally have Internet access from a range of accounts. They also would easily be able to sign up with another ISP with no penalty. "Disconnection is both wrong in principle, and likely to be ineffective. These two factors together indicate it should be removed as a penalty. "Doing so would allow the role of the District Court to be removed from the legislation, leaving it to focus on serious crime and saving the taxpayer money.

The now infamous ASCAP letter, where ASCAP attacked Creative Commons, EFF and Public Knowledge allegedly for undermining their copyright, has generated no shortage of controversy. Was it a one-off incident that was poorly worded? Apparently not.

No. 10: They support changing the law to reduce damages for copyright infringement. No. 9: They support the elimination of statutory damages for secondary copyright infringement. No. 8: They favor rolling back copyright extension; in some cases, radically. No. 7: They favor the elimination of the songwriter and publisher rights for server, cache and buffer copies. No. 6: They oppose efforts to obtain the identities of individuals engaged in massive copyright infringement. No. 5: They support extreme versions of orphan works legislation. No. 4: They have filed legal briefs supporting anti-copyright positions of Grokster, Napster, LimeWire, Cablevision, Google, YouTube and Verizon. No. 3: They oppose graduated-response protection for copyright owners. No. 2: They oppose treaties that support copyright enforcement like the Anti-Counterfeiting Trade Agreement. No. 1: They actually argue that illegal peer-to-peer file-sharing traffic helps the economy and doesn't hurt songwriters.

“Efforts to estimate losses involve assumptions such as the rate at which consumers would substitute counterfeit for legitimate products, which can have enormous impacts on the resulting estimates,” it says in the report. “Because of the significant differences in types of counterfeited and pirated goods and industries involved, no single method can be used to develop estimates. Each method has limitations, and most experts observed that it is difficult, if not impossible, to quantify the economy-wide impacts. ”

We wrap things up with the last third of 2009. Part one. Part 2.

If the international movement of the Pirate Party wanted something to celebrate over today, consider the latest news out of Germany to be the news story to do it. Reports are surfacing (Google Translation) that during several municipal elections held across Germany, the Pirate Party have earned a sufficient number of votes to be on several city councils throughout Germany.

The victory followed up a strong campaign throughout Germany where users were encouraged to place Pirate Party posters and wave Pirate Party flags on the streets and (naturally) while on the water as well. We would visit the German Pirate Party website for more information, but the site seems to be either slow or timing out altogether as of this writing. Sweden was the first country to elect a Pirate Party member, now Germany has become the second country to have, through an election, elected members of the Pirate Party.

Currently, in many other parts of the world including numerous countries in Europe, the Pirate Party is trying to gain enough support to register their party so they can participate in elections as well. Membership in several countries can be attributed to the fact that the copyright industry has been pushing for a so-called “three strikes and your out” regime in spite of the fact that the European Parliament recognizes internet access as a fundamental right. Some countries have seen a push to use privacy invasive technology such as data retention to target alleged copyright infringement. Many responded by turning to the Pirate Party after politicians became more interested in listening to the copyright industry lobbyists instead of their own constituents.

Specific details on how successful the German Pirate Party has been in Germany hasn’t surfaced with the news yet, but there’s little doubt that things like the final percentage of the vote and exactly how many seats officially won will soon follow.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Vote for the Liberal party and you get Bill C-60. Vote for the Conservative party and you get Bill C-61. We’ve done a number of comparisons last year, but the big message both bills sent across was that the users interests are ultimately neglected in favour of the copyright industry.

After some saw Bill C-61, they felt that the only choice was to simply vote Liberal – perhaps because they have not been around when Bill C-60 was introduced four years ago. So one might be wondering if their attitude on the matter has changed since then. Recently, Canadians have gotten their answer. In a response to sub-committee recommendations, the Liberal party had this to say:

In relation to a recommendation on copy rights and antipiracy of intellectual property, the Liberal Party of Canada supports the recommendation as follows: “That the Government of Canada immediately introduce legislation to amend the Copyright Act, ratify the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), amend related acts and ensure appropriate enforcement resources are allocated to combat the scourge and considerable economic and competitive damage to Canada’s manufacturing and services sectors and to Canada’s international reputation by the proliferation of counterfeiting and piracy of intellectual property.”

Reading that, one might be wondering who is speaking here, CRIA? The CMPDA? The RIAA? The MPAA? Or is this really the Liberal Party of Canada. After Bill C-61, some might be thinking that when it comes to the top two parties, you are either voting for the Canadian DMCA or you are voting for the Canadian DMCA. The only differences are clerical as time goes on.

Still, that doesn’t mean everyone in those parties are suggesting that the only way to go about copyright is to let the copyright industry write the legislation for them. In a high profile conference dubbed Canada’s Digital Economy: Moving Forward, two ministers had many interesting things to say.

“The old way of doing things is over. These things are all now one. And it’s great. And it’s never been better. And we need to be enthusiastic and embrace these things.” James Moore, Minister of Canadian Heritage said. He continued, “I point out the average age of a member of parliament because don’t assume that those who are making the decisions and who are driving the debate understand all the dynamics that are at play here. Don’t assume that everybody understands the opportunities that are at play here and how great this can be for Canada. Tony is doing his job and I’m going to do my job and be a cheerleader and push this and to fight for the right balance as we go forward. The opportunities are unbelievable and unparalleled in human history.”

“Last year’s experience with Bill C-61 left thousands of Canadians deeply disappointed with government on copyright policy.” Michael Geist commented in response to those comments, “Yesterday’s remarks signal an important shift with both Clement and Moore clearly committed to more open consultation and to the development of a balanced copyright bill that better reflects the real-world realities of new technologies, innovation, new creators, and the reasonable expectations of Canadian consumers.”

Still, will the Conservative party actually follow through on what they are saying? That is uncertain. Given that they tabled Bill C-61 in the first place, it’s up to Canadians to decide on whether or not they can be forgiven for such a drastic move to simply bend to the wishes of the copyright industry. For many, it may be wise to wait and see what they’ll come up with for their next copyright reform bill rather than just relying on their words.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

There’s an international movement afoot to get ISPs to more closely monitor their networks and the traffic that flows through it. On the international stage, questions are being raised over ISP or DNS blacklists, ISP level surveillance and data retention. Since no human is perfect, does these new expansions in powers around the world also increase the potential for abuse as well?

The editorial in the National Post comments on the repeated themes on how legislation like warrantless wiretapping was pushed forward in the past. In Canada, it’s the repeated themes of how this is suppose to help save the children from online predators. In North America, there’s also that theme of how it’s suppose to somehow help fight terrorism. The editorial article comments on how such arguments are weak while defending the broadening of surveillance in Canada.

Meanwhile, the Ottawa Citizen echoed those sentiments and also notes how in any given gathering, there are those who are present for less than ideal reasons. Not only this, but also puts forth the question, since when do judges block a police investigation on a regular basis and prevents them from getting a warrant in the first place? The editorial suggests that apologists for the surveillance legislation has yet to provide such evidence and concludes that given another Conservative member had issues with the Google van taking pictures around neighbourhoods for their Street View project (they were definitely questioned in committee over privacy concerns) and given that the Safety Minister is pushing for surveillance legislation that would diminish privacy much more severely than any fleet of vans with 360 degree cameras ever could, the party that argues for small government is sending mixed messages to the public.

There was another theme both editorials conveyed which has been an underlying issue ever since the legislation was tabled, the fact that the minister who tabled the legislation was the same minister who, in a different time, promised to not expand surveillance powers and have such surveillance laws forgo the need of a warrant. Was this part of the political deal when Canadians saw their election postponed to at least the Fall? Who knows. At the very least, though, a backtrack is a backtrack and for the months leading up to the tabling of the legislation, the Liberal party has continually pushed to have surveillance legislation tabled in the House of Commons (Just use Google to search through the Hansard for things like ‘modernization’, ’2008′, ’2009′ and ‘investigation techniques’) With support from both the Liberal party and the Conservative party, the legislation is pretty much guaranteed to pass save for another election.

But what of the fears that this opens the floodgates for abuse? The legislation does, indeed, call for the installation of surveillance technology on the ISPs in Canada. We’ve looked through Bill C-46 and Bill C-47 to find that out. While the editorials have pointed to evidence in Canada that police are actually prone to doing less than legal things (one pointed to unauthorized plate checking for one) However, we also know that, internationally speaking, when things like ISP level wiretapping occur, not only has it opened the floodgates for abuse in the legal and law enforcement sphere, but it also opened the floodgates for abuse in the commercial sphere as well.

We begin our look at the country that is geographically closest to Canada. The neighbours to the south. The United States where it has appeared that the debate on such things looks as though security trumps privacy, an ironic turn of events considering that famous quote from Benjamin Franklin that rings true today, which says “He who sacrifices freedom for security deserves neither”, actually comes from the United States in the first place. The NYTimes unearthed quite a lot recently about the Bush promoted AT&T wiretapping program recently. Among the evidence was commentary on how, probably millions of, Americans were wiretapped that went far beyond the legal restraints surrounding such activity. One of those Americans who was illegally wiretapped? Former president Bill Clinton. One can get the impression that the unauthorized wiretapping is starting to get out of control.

It is important to note the differences between the case in the United States. In Canada, the proposed legislation would grant eavesdropping to police without a warrant. In the United States, the eavesdropping permits a copy of the traffic flowing through ISPs like AT&T and connects that information directly to organizations such as the NSA. While an important difference, when it comes to privacy concerns for many, that is little more than a clerical difference rather than a significant difference. In the end, police obtained unfettered access to details of your activity online.

Of course, an increase in state powers have gained the interest of commercial entities as well. The most vivid also happening to be the most recent. Austria is a member of the European Union. In the European Union, there is a law that makes ISPs retain data of all of it’s users – also known as Data Retention. While there was a movement to stop the data retention directive, data retention ultimately became law. It appears that an organization of Austrian newspapers have been eyeing that data retention and have called upon the government to use data retention to enforce copyright. There was a stunning quote from the organization that seemed to cap off this attempt which says, “Privacy should not be used as a cover for rights abused.” Forget child abuse. Forget the terrorists. Forget identity thieves. The debate, judging by that development, has shifted to whether or not commercial entities should have access to that data retention for their commercial interests. The real question is, where do these surveillance demands end? What interests should be brought up to the level of access enjoyed by entities interested in, say, national security? As we’ve noticed, this kind of thing isn’t an isolated incident either in Europe.

Last year, in Germany, Deutsche Telekom was raided over spying allegations. In essence, the telecommunications company was worried that insiders were leaking information to reporters, so they monitored their employees – illegally. Since the Canadian case is about installing surveillance infrastructure, it’s important to note how installing such technology would open up potential abuse precisely like this. Legal or not, the potential is there.

Recently, Germany passed legislation that would bring in mandatory censorship legislation. While not wiretapping or surveillance, it does force ISPs to grant new powers over the internet – in this case, blocking a whole list of websites. Isn’t it interesting that just three months earlier, German book publishers wanted to add Rapidshare to that blacklist?

Even further back into January of this year, there were things that happened that forced the German government to say that data retention is for terrorists, not copyright infringers. In response, the IFPI said that it would be contradictory for the government to not hand over all the information over to them for copyright legal pursuits.

What about free speech? A government mandated blacklist in many countries is said to stop child pornography. Australians know all too well how web censorship like that can go too far after the ACMA blacklist leak showed perfectly legal sites on them. While the governing body denied the authenticity of the leaked list, there have been suggestions that the blacklist did come from an ISP in the first place and some of those sites have been added on there because of commercial reasons. Over in Britain, a similar incident happened where British ISPs blocked Wikipedia.

Going further, these aren’t the only cases where new surveillance or censorship measures were attempted to be used for reasons beyond what the legislation was promoted to be stopping in the first place. Already, the copyright industry, along with a few other companies, have tried multiple times to use surveillance or censorship for commercial gains or interests. Legal websites have been put on national blacklists in the past in other countries. The question many Canadians should be asking over top of other questions that have already been raised is where would these intrusions on internet users rights end? Is this legislation in Canada merely an update or modernization and that would be the end of it or would further demands be raised if the currently proposed legislation is passed? All this given multiple international examples.

It certainly, from this standpoint, that this surveillance legislation is not only bad for users privacy, but also the tip of the iceberg as well.

[Hat Tip: Michael Geist 1 and 2]

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A lot of corporate driven polls suggest that the election has started out with the question of Conservative majority or Conservative minority governments. Lately, the same polls are now raising the question of Conservative minority or Liberal minority. It stands to reason that this new prospect for those who watch the copyright file should be thrilled at the prospect of a minority government given that it has lately been the only reason why there hasn’t been a Canadian DMCA pushed into law. From the looks of things, it’s highly likely going to be the reason Canadians will be saved from a Canadian DMCA this time around as well as Canada is poised to get an unprecedented third minority government in a row.

Some may wonder, why wouldn’t the Liberal party table something less draconian since they did criticize Bill C-61? This might be brought on by the fact that some people haven’t been around in the copyright debate clear back in around 2004-2005. What happened was, with the only consultation happening in 2001, the Liberal government tabled what is known as Bill C-60. The legislation, see if this sounds familiar, introduced anti-circumvention legislation (section 34.02) as well as the much dreaded law that makes it illegal to “communicate” copyrighted works (section 15).

At the time, it was viewed that the copyright act was overbroad and overreaching – a law that would treat ordinary consumers like criminals because it doesn’t take into account things like format shifting, time shifting, etc. (never mind what it would do to people who end up in legal cross hairs of the copyright industry over p2p networks)

The legislation died on the order paper when the government fell. The uproar the legislation caused had ultimately led to a showdown between the member of parliament that was behind the copyright legislation and Canadians during the election of 2005. The member of parliament was Sam Bulte and there is the ever famous video that many say cost Bulte her seat in that election. The video, interestingly enough, was recently posted on YouTube:

So during the election, Canada, as the campaign phrase of the Conservative party went, voted for change. The Liberal party was pushed into the opposition and the Conservative party took their place as the governing party. After several months past, there were numerous rumours that equally draconian copyright legislation was going to be tabled. There were delays while candidates changed portfolios. The copyright portfolio went from Bev Oda to Maxime Bernier to Jim Prentice. By the time Prentice got a turn with the copyright reform legislation, there was already movement afoot with the Fair Copyrigtht for Canada FacebookFacebook group which exploded to over 90,000 people. Most say that this sudden uprising was the reason why Prentice temporarily pulled the legislation off the table again before re-tabling it.

Right before tabling the legislation, Prentice was swarmed by people who were concerned over the legislation. Much like the Sam Bulte video, Prentice appeared to take one side of the issue. The video, just like the Bulte video, is also posted on YouTube:

The legislation that was ultimately tabled was known as Bill C-61 (some call it Canadian DMCA 2.0) In the legislation was, again, anti-circumvention laws (41.1) as well as enforcing a notice-and-notice regime (section 41.25).

Generally speaking, both of the proposals could have been disasterous for consumers as well as artists since some services that sell MP3s wrap Digital Rights Management in the song (like the Zune for instance) and merely focuses on saying that a small number of organizations that represent foreign international interests are the winners while Canadians are the losers in the copyright debates. It’s difficult to tell the two parties apart when they tabled the Canadian DMCA.

With this in mind, if either the Liberal Party or the Conservative Party get in power, it’s really easy to predict that Canada will be hit with Canadian DMCA 3.0. The fact that the probability that this up and coming government will be a minority government provides the only hope that the legislation won’t be passed.

Confusingly enough, though, the mainstream media has been focusing solely on international polls, not seat count. The more seats won, the more members of parliament there will be. Unlike the United States, there are no ‘winner takes all’ areas – though it is a first past the post system. It’s unclear how the seat-count will play out, but the seat count is where the election counts (and likely where the mainstream media will focus on tomorrow evening)

We can only hope that this will be a minority government because chances are, Canada will get another one-sided Canadian DMCA and it will likely die on the order-paper like the first two attempts. The NDP have been vocal on the issues and have shown to voice the opinions expressed by Canadian artists and consumers. As Jared already points out, the NDP is for consumer rights and net neutrality.

We have already sent questions related to copyright to the various political parties only to have no responses come back unfortunately, so we really only have what is already known at this point.

So, whether it’ll be a Liberal government or a Conservative government, it’s more than likely we’ll get a Canadian DMCA. Let’s hope that it’s a minority government so it can be reasonably scrutinized.

Open Rights Group is reporting on this recent move, but is currently unable to identify the MP who objected to the reading of the bill. The only thing available is a streaming video which showed what happened. His face is visible at 4:56:57. He is sitting on the far left side of the screen sitting in the front row.

As it stands, the bill is currently going into its second reading. The delay means that the bill will go into its second reading next Friday.

The Open Rights Group says that the delay was the result of the people who wrote to their MP to tell them to not allow the copyright term extension to go through. They are currently requesting all those that have an interest in the copyright extension debate to write to their MP and tell them what the people think about it. They also are asking for European citizens to sign a petition to stop Copyright Term Extension European-wide.

The Canadian Association of Broadcasters (CAB) President Glenn O’Farrell wrote an op-ed in the Hill Times (Paywall) stating that the radio broadcasters is on the “breaking point”, saying that tariff’s could grow to $200 million a year if DMCA-like copyright laws were tabled.

Michael Geist highlighted the following:

If a new fee proposed by the record labels is approved, additional payments from Canadian broadcasters to the labels – many based outside Canada – are expected to total approximately $50 million per year. In claiming this fee, these labels are looking to take advantage of a provision in Canada’s Copyright Act to compensate themselves for losses they say they have incurred via Internet downloading. Rather than adapting their business models to the opportunities presented by evolving digital media, the labels are engaging in what is essentially an abuse of the principles of the Copyright Act.

“With the powerful Canadian broadcasting community speaking out against Prentice’s plans,” Geist says, “the list of opponents and concerned parties gets longer every week as it now includes consumers, education groups, retailers such as Best Buy, telecommunications companies such as Telus, musician groups, artists groups, privacy groups, and more than 40,000 Canadians on the Fair Copyright for Canada Facebook group.”

An interesting conversation also ensued:

“If they really want to put the kibosh on illegal filesharing, they ought to make it impractical for residential internet access subscribers to run any sort of service of any kind on their computers by blocking absolutely *all* incoming connection requests,” an anonymous commenter suggests, “as well as any incoming UDP packets that weren’t responses to a previous outgoing request.”

“Blocking filesharing is a silly, prohibition-esque approach that will royally screw legitimate filesharers and simply cause the black market to find an alternate means.” Trails, another commenter said. The user added, “Your claim that it will not affect 80% of users is not valid; the home user’s internet connection is used for increasingly advanced and diverse purposes. Blocking all incoming connection requests? Your view of internet usage is overly-simplistic to say the least if you think this is will affect only 20% of users. What if I wanted to host a game of Half Life? Or a person starting up a home business wanted to host a net meeting?”

“How much data is too much data? At what point do your bandwidth needs and patterns clearly identify you as a miscreant?” user Patrick asks, “What if you have six machines lending processor time to legitimate efforts like SETI signals analysis? Or what if you post your own, popular works online for public download? What if you are legitimately sharing large files (research doc’s, etc.)? Should these people be punished by such a short-sighted plan?”

“Please note that while this was a lecture focusing on policy making in the context of climate change, that 5 of the 8 questions focused on copyright.” Russell McOrmond noted, “Politicians and heads of lobby groups (industry associations, unions, etc) really need to modernize their thinking in these areas, or they will be “voted out” of whatever type of office or executive positions they hold.”