It’s a legitimate fear as it’s happened multiple times – a music service shutters its DMR music service and servers, rendering all legally purchased tracks useless. For those who do the more honest thing of purchasing music, the very idea that a corporate entity could render legally purchased material useless seems like a betrayal to consumer confidence. It’s not a realistic situation for those that spent 10’s of thousands of dollars on vinyl copies of music (that one day, the content themselves all fail at the same time) but it can technically happen with DRM encoded music.

It’s partly why it makes Steven J. Metalitz’s comments regarding authentification servers during a Q&A session of a copyright hearing so outrageous.

“we reject the view,” Metalitz writes (PDF), “that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards.”

He then explains the reasoning behind it, “No one expects computers or other electronic devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so.”

For many, this would mean that back-ups are illegal – especially in the event of a failure either on the user end or the retailers side of it. That would mean that people would be asked to pay for their legally purchased content again – so much for fair use.

“To recognize the proposed exemption would surely discourage any content provider from entering the marketplace for online distribution or offering consumers the convenience of online authentication of disc-based content unless it was committed to do so — or to guarantee the ability of a third -party service to do so — forever.” He continues, “This would not be good for consumers, who would find a marketplace with less innovation and fewer choices and options. Any argument that such barriers to entry are needed to protect consumers in some way is more appropriately addressed to the Federal Trade Commission, rather than to the Register and the Librarian in this proceeding.”

It’s comments like this that re-enforces what many have known for a very long time already – when you “purchase” content with DRM, you don’t own it, you merely rent it. With thinking like this, it’s no surprise when users turn to piracy. It’s not like they simply want to get content for free, it’s just that they want to be able to have the option to create a way to recover their content in the event something goes wrong – something the industry doesn’t seem to keen on allowing. It’s a mystery how preventing back-ups would be discouraging users and innovation when plenty of innovation revolves around re-using the works in unique ways – something DRM prevents.

“I’ve got 78RPM records from my grandparents’ basement that play just fine today — and I’ve got Logo programs I wrote in 1979 that I can run today. I own a piano roll from 1903 that I can play back if I can clear the space for a player piano. I’ve got books printed in the 17th century that can still be read” Cory Doctorow wrote in response, “and if they can’t be read, they can be scanned and the scans can be read. This is what an open format means.”

“It’s hilarious that the same yahoos who argue for perpetual copyright (implying that copyrighted works have value forever) also argue for time-limited ownership (implying that people who buy copyrighted works should be content to enjoy them for a few weeks or years until the DRM stops working).” Doctorow said.

There’s plenty out there who would easily recognize that given that the computer is effectively a copying machine for the most part, it’s not surprising that many would see this latest argument from the industry as backwards at best.

[Via Arstechnica]

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A few days ago, we noted that Jammie Thomas and her lawyers vowed to appeal the $1.92 million damage award saying that the award was unconstitutional. Court documents (PDF, source with built-in PDF viewer, hat tip Ray Beckerman) recently released certainly backs up what the lawyers had said they’d do now.

While the documents border on being considered a lengthy read, it’s certainly well worth it as one can very easily see the amount of research that actually went in to this motion. There are several pages that point out what we have suggested in a previous posting – that there is quite a discrepancy between how much one pays for a single track on iTunes (we suggested it was 99 cents per track as this has been the classic price-point for a single song, but the documents say $1.29) and the actual award ($80,000 per track)

So, starting from the beginning of the filing, the motion argues, unsurprisingly, that the award amount for damages is unconstitutional. How this argument was brought about, and is repeated throughout the entire document, is what makes this argument fascinating. It’s not entirely the large number, $1.92 million, that is seen as grossly excessive, but the damage of cost versus damages. In this case, on a per song basis with the knowledge of what a single track costs on iTunes – $1.29 – the damages ratio is 1:62,015.

If $1.92 Million was bad PR, imagine the kind of PR the RIAA would get if they sued for $134.24 Million.

The filing further argues that if each song was compared to an album for sale, the ratio is a whopping 1:5,333.

The document explains, “such a judgment is inconsistent with the Due Process Clause of the United
States Constitution.”

In a later part of the document, Thomas’ lawyers cite another case that pin-points why the ratio is extremely important in determining the constitutionality of the award:

Campbell, 538 U.S. at 418. Although the Supreme Court has declined to state a bright-line rule about the maximum permissible ratio, it has repeatedly held that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

So, at most, the damage award would be 1:9, or $1.29:$11.61 on a per track basis.

To put the whole concept of the currently awarded damages into another perspective, there’s this particular passage later on in the court documents that highlight further why $1.92 million, or $80,000 per track, is grossly excessive:

Had the recording companies sued on all the songs they claim to have found on Mrs. Thomas’s computer, the verdict would have been $136,240,000. This does not show that they are “being reasonable” by seeking only $1.92M; it shows, rather, that $80,000 per song is a grossly excessive and therefore unconstitutional civil penalty.

“Mrs. Thomas did no physical harm; any harm that occurred was purely economic,” the document further argued, “to the tune of $1.29 for each of the 24 songs or $15 for each of the 24 albums at issue. See also Wechsberg v. United States, 54 Fed. Cl. 158, 167 (Fed. Cl. 2002) (requiring plaintiffs to offer evidence of actual injuries if these are used to justify an award of statutory damages higher than the minimum). Her conduct did not evince any indifference or reckless disregard for the health of safety of others since, again, any harm she did was purely economic. And the targets of her conduct are the largest recording companies in the United States and are hardly financially vulnerable relative to those plaintiffs — maimed children, for example — who we think of as most deserving of punitive damages.”

Not only was there arguments against such a high award, Thomas’ lawyers argued that the discrepancy between the initial $222,000 and the newer $1.92 Million is cause for concern. The document says, “BMW of North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994) (per curiam) (describing disparity between $4M punitive-damages verdict by one Alabama jury and $0 punitive-damages verdict by different jury in case on same facts). “The real problem, it seems, is the stark unpredictability of punitive awards.” Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2625 (2008). In this case, this unpredictability is stark indeed: two different juries returned punitive awards that differ by almost an order of magnitude.”

Another note-worthy point being made can be found in this excerpt:

Importantly, the legitimate interests in relation to which a civil penalty must be reasonable are those related to punishing and deterring a defendant for her conduct and the injury that she caused to the plaintiffs. It is unconstitutional to impose a civil penalty on a defendant for either the conduct of others or her own conduct that harmed those who are not plaintiffs. See Philip Morris USA v. Williams, 549 U.S. 346, 353–54 (2007). The plaintiffs in this case repeatedly argued that, in selecting what damages were appropriate, the jury should consider not only the harm to the recording companies, but also to artists creating music (who the recording companies’ representatives repeatedly testified are independent third parties, not employees) and to consumers of music.

What makes this point particularly interesting is the fact that the copyright industry in the United States have stressed for years that the lawsuit campaign is merely an education campaign. An underlying point through legal threats read by tens of thousands is that you could be hauled to court and forced to pay millions in damages if you don’t pay the settlement. That, legally speaking, if this argument goes over well in court, could be the industry’s own undoing. Another way of putting this is, is one user liable for the actions of another user in a given network or should that second person be liable for their own actions? This question has an interesting resemblance to the safe harbour clause in the DMCA that an ISP is not liable for the users of their own network. In this case, say you upload a copyrighted work to three individuals and leave that swarm. Should you be liable for the actions of those users after you leave that given swarm? The industry certainly seems to want compensation not just for the actions of a given user, but for every user involved in uploading a given work. Trying to get a total award out of just one person is certainly an interesting legal question.

So what is being requested includes the following:

Defendant Jammie Thomas respectfully requests that this Court (1) alter or amend the judgment under Rule 59(e) to remove the award of statutory damages; (2) order remittitur of the statutory-damages award to the statutory minimum; or (3) order a new trial on all issues under Rule 59(a).

Another interesting point being brought up is that Media Sentry had illegally obtained evidence against Thomas. The motion to suppress the evidence was denied because the court only looked at Minnesota law. Since Media Sentry was operating outside of that state, the original motion to suppress the evidence was denied. So where was Media Sentry operating? Turns out, they were operating in New Jersey. Since that is a known fact now with regards to this case, Thomas’ lawyers looked at applicable private investigators acts and determined that the activity conducted by Media Sentry was illegal. This was said at the time:

Neither MediaSentry nor Plaintiffs have disclosed the location of MediaSentry’s activities in February 2005. Media reports in 2005 indicate that MediaSentry most likely conducted its activities from either New Jersey or Maryland. Both New Jersey and Maryland have private investigator and wiretap statutes that MediaSentry would have violated if it conducted its activities from these states. See N.J. Stat. §§ 45:19, 2A:156A-2; Md. Code, Business Occupations & Professions § 13-801; Md. Code, Courts & Judicial Proceedings § 10-402.

This court document certainly has a lot of food for thought on the legalities of file-sharing. It also shows that even though the DMCA exists to supposedly make the legal issues of file-sharing as clear as black and white, there’s still a huge grey area – namely around awards in part, thanks to the fact that there hasn’t been any other file-sharing case that has gone this far that’s related to an individual user.

Currently, the RIAA already wants Thomas to destroy all copies of copyrighted works and hinted at wanting more than the $1.92 Million awarded in court. One can easily see that this particular legal case is far from over even though it’s been carrying on since 2007.

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Three accusations. Three assumptions of guilt. Is that enough to get your connection terminated permanently and get you banned from the internet? According to a new New Zealand law that will come into force, it is. It wasn’t like New Zealanders went down without a fight, ISPs, technology experts and activists alike protested until the very end with their government ignoring their calls and passing what may be one of the riskiest copyright laws the world has ever seen.

The EFF highlighted the protest website developers are organizing to protest the new law. The protest is known as the internet blackout where participants turn their icons black to show their support for the protest against the “guilt upon accusation law” The meaning, of course, is that New Zealands internet would go black thanks to the new copyright law.

There is even a remix contest where users can remix the Copywrong Song by CFF, Mike Corb and Luke Rowell.

The EFF offers some details of what the S92a law really is:

Section 92A comes into force on February 28th, and states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

This isn’t an entirely original framing of ISP duties. The chances are that this language was taken from the United States’ very own DMCA, which in 512(i)(1)(A) states:

The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.

But New Zealand experience demonstrates the dangers of simply adopting language from other countries without including a wider context. “Repeat infringer” in the DMCA is a term that was not defined in the law itself, and remains contentious here in the United States. Legal experts like David Nimmer have argued that “repeat infringer” means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders. There’s certainly no universal acceptance in the home of the DMCA that rightsholders can force ISPs to throw US subscribers offline simply because they’ve been on the receiving end of (often inaccurate) notices by those same rightsholders.

The New Zealand law doesn’t clarify that element of “repeat infringers.”1 In their draft Code of Conduct, New Zealand’s ISPs have defensively accepted the widest possible interpretation, and conceded that they must take a “three strikes” response to rightsholder’s accusations, rather than actual court convictions.

The EFF points out that the law could inspire other countries to adopt similar legislation.

The EFF is currently highlighting a new legal victory for video sharing sites. The case is known as the UMG vs. Veoh case where UMG sued video sharing site Veoh for the activities of it’s users – some of which uploaded copyright infringing material on the site.

Veoh argued that their activities of offering a medium to post content falls under the Digital Millennium Copyright Act’s “Safe harbour” provisions which says that, among other things, that internet services are not liable for the actions of their users – a provision that seems to be glossed over like a mere suggestion these days with the copyright industry demanding ISPs to fight copyright infringement.

UMG (Universal Music Group) counter argued, saying that hosting companies should be liable for every bit a user uploads.

All too often when these cases come up, user generated websites are frequently branded as little more than a vehicle for copyright infringement. Like the internet itself, when one makes an argument that labels, say, a video sharing site as something simple like a medium for piracy, it’s far too easy to argue many ways in which that given site is not. Examples of possible counter arguments include the fact that it’s a learning tool (plug in virtually any software product and add “tutorial” to see what we mean), or an independent musician site (OK-Go is one of the more famous examples of musicians jump-starting their careers with a viral video), a website for magicians (where magic tricks are often a popular keyword), a gaming website (where speedrun is a good keyword for something like this), a tool for businesses to host video content (many businesses like small town newspapers are jumping onto YouTube to post their small town journalism reports, or a cleverly well produced advertisement for companies like BlendTec for their rather famous ‘Will it Blend?’ series), or even an education tool where students can post final projects like animations. Pretty much anything in general one can think of is more than likely posted on a video-sharing site.

Still, it’s an effective weapon the copyright industry has against such sites by saying that users just go there to pirate their content as it gives them a public relations edge that actually works for a lot of people. Make everyone think that people just go there just to watch music videos and there will be those that will easily believe them.

The EFF concludes with the following:

Relying on the statutory language, as well as the legislative history, the court concluded that all of these activities are covered by the DMCA Section 512(c) safe harbor. Lots of online service providers will greet this ruling with relief. If the court had accepted UMG’s arguments, every web host would lose the safe harbor as soon as it made web pages available to the public. The ruling should also help YouTube in its ongoing battle with Viacom, which also turns on the continuing strength of the DMCA safe harbors.

But the Veoh ruling also points out a surprising irony: while YouTube and Viacom are fighting their interminable litigation trench war, many interesting DMCA legal questions are being resolved in smaller, faster-moving cases involving companies like Veoh. At this rate, the highly-anticipated Viacom v. YouTube lawsuit may end up a footnote in the legal fights that define the rules governing user-generated content.

It might be worth noting that the legal battles going on with the DMCA in the United States will more than likely be little more than the tip of the iceberg with legal questions being raised with video sharing sites since many broadcasters from around the world have also sued YouTube for copyright infringement. As much as the copyright industry likes to, from time to time, believe that the US laws apply to other countries, the DMCA only covers US cases and international cases will be far more complex. Worst case scenario in the future, some countries will end up being either blocked by or blocking YouTube due to a court decision not deciding in a video-sharing sites favour. It’ll have a negative effect on video sharing sites, but it’s unlikely that it’ll be a fatal one – especially if the lawsuits in the US end up failing to take down YouTube (and YouTube’s position seems to be more favourable as a result of this legal victory).

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.

It may seem like just run of the mill political news in Canada, but the consequences are far reaching – affecting the fate of Bill C-61, the bill dubbed by many as the Canadian DMCA (Digital Millennium Copyright Act). The news most likely comes to the relief of many who have been affected by the creativity and technology industries, but the news will no doubt infuriate the foreign copyright industry who have been lobbying for years to get Canada to implement draconian copyright legislation.

CBC reported that Stephan Harper, Canada’s current prime minister, hinted at triggering an election during a speech in Cupids, Newfoundland. From the report:

“Quite frankly, I’m going to have to make a judgment in the next little while as to whether or not this Parliament can function productively,” Harper said, without elaborating on his plans.

He said legislation is being stalled in the Liberal-dominated Senate and obstructed in the House of Commons “principally by Mr. Dion.”

“Two of the three opposition parties don’t support the government and say we should be defeated. Mr. Dion says he doesn’t support the government but won’t say, you know, whether he will defeat us or not,” Harper said.

“I don’t think that’s a tenable situation.”

While saying they will do something and actually doing it are two entirely different things, it’s also particularly notable that the copyright reform bill is also a long way off from becoming law still. Bill C-61 has quite a history of things that delayed it. The last instance being a high profile resignation which proved to be a PR nightmare for the governing party. Prior to that, it was the sudden support build-up of Fair Copyright for Canada, a Facebook group devoted to getting a balanced approach to copyright.

The last couple of years, it seemed like the Conservative party (current governing party) have been the party that has been promoting copyright reform which has, by general consensus of Canadian artists, business and consumers not attached to the hip by foreign copyright lobbyists, been overall an omnibus of bad ideas. It may be easy to think that the Liberal party (the previous governing party) would have a good chance at promoting fair copyright laws. Unfortunately, in order to do that, one woudl have to ignore what happened in 2005 and 2006 where Sam Bulte promoted an even earlier Canadian DMCA known as Bill C-60.

If there’s anything that both bills had in common, it was the potentially damaging restrictions they would have in Canada. Bill C-60 was known to have a devastating effect on the education community at large (lesson material would have to be destroyed after a certain period of time, etc.) among other things. Ironically, one can thank the Conservative party for that point of view. Bill C-61 on the other hand has a hot button debate over DRM overriding Fair Dealings (Canada’s version of Fair Use as it’s known in the US) in pretty much just about any way. There’s, of course, the issue of the anti-Counterfeiting Trade Agreement which would allow border agents to seize any device that could potentially carry copyright infringing material without even reasonable suspicion. As we reported earlier this year, it is almost as if Bill C-61 was designed for ACTA, taking heat off the Conservative party.

For Canadians concerned about copyright and hoping to vote for one of the two most popular parties, it presents quite a dilemma. Vote Conservative and vote for a Canadian DMCA. Vote Liberal and vote for a Canadian DMCA. The losing party will be more than happy to be critical about copyright reform. Whoever wins will likely (if history is anything to go by) get to be the party that will be widely seen as selling the country out to foreign lobbyists as they table new draconian copyright legislation – namely the American copyright industry.

While the situation seems dire, it’s also different from the situation in the United States. In Canada, there’s more than two political parties. The French separatist party known as the Bloc finally made their copyright position known during this session of parliament. As we reported the Bloc leader thought Bill C-61 didn’t go far enough in terms of restrictiveness. Meanwhile, the last party in the government currently is the NDP which has consistently taken the stance that the copyright legislation didn’t keep consumers in mind. Some have suggested that the NDP is becoming known as Canada’s Pirate Party in spite of the fact that there is officially discussion of discussions to start a Pirate Party in Canada. The Green Party of Canada has also been highlighted in the Canadian media from time to time. They have been widely seen as the party that has the best chance at getting into parliament, but currently don’t have any seats. They have been known to disagree with where copyright legislation has gone in the past and present.

It seems that history is repeating itself in the copyright debate. If one were to look at the copyright debates from a historical perspective, it isn’t hard to see that another minority government will occur with legislation put forth that most Canadians disagree with, yet supported by a very small minority with a lot of money and debate over the issues continue to grow. It’s important to keep in mind that this isn’t just about the issue of downloading unauthorized files on P2P, but encompasses a wider issue of fair dealings and consumer access to content and what can be created, quoted, cited, programmed, manufactured, etc. Suggesting that copyright legislation only affects file-sharers downloading the latest top 40 music is a far too narrow of a perspective on copyright legislation even though it will affect the legality of file-sharing. In any event, it looks like the second Canadian DMCA’s days are increasingly looking like they are numbered.

Previously in our series:
Actual Text – Damages – $500 – $20,000
Actual Text – Music – Sony Rootkit Legalized

We are switching our focus a little on our series in this segment. While the previous entries focuses primarily on the text of the current legislation, this segment focuses on the legislation that is in front of Canadians today and the legislation of the previous government. Michael Geist also offers two series on the text of the bill, one entitled ‘A Week in the Life of the Canadian DMCA‘ and ‘61 Reforms to C-61‘.

As we mentioned at the beginning of the series, section 41 of Bill C-61 contains anti-circumvention legislation which bars Canadians from general fair dealings that was otherwise enjoyed if there is a digital lock on it. What does Bill C-60, the previous legislation say? It says the following in section 34:

34.02 (1) An owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer’s performance are, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1).

(2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights.

(3) If a technological measure protecting a material form of a work, a performer’s per­formance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner’s or holder’s consent, does any of the following acts with respect to the material form in question:

(a) sells it or rents it out;

(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;

(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or

(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c).

From Bill C-61:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

Outside of some rewording of the legislation, all-in-all, the anti-circumvention seems to remain relatively unchanged with a few exceptions. One of the most immediately obvious differences is that the Liberal legislation frames circumvention in a way that basically says, ‘the copyright holder is entitled to damages over circumvention’ while the Conservative legislation basically says ‘no person shall circumvention technological measures that is against a copyright holders permission’

This difference seems pretty significant considering that, before, it seemed as though the legislation would give way to lawsuits from copyright owners. Under this legislation, judging by the snippet, it would possibly open the door for any authority figure to target forms of copyright infringement. This kind of idea easily goes along with what ACTA would allow – searching of people’s iPods, laptops and other recordable mediums based on suspicion and permit authorities to “destroy” confiscated belongings. One might wonder if ACTA was around when Bill C-60 was tabled, if this backdoor would exist in the legislation at the time as it clearly does now.

Further reading: Our coverage on ACTA

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We reported earlier today that the Canadian DMCA was tabled. Reading legislation is a time consuming process. While we aren’t lawyers or are able to offer legal advice, we can offer how an ordinary citizen might interpret what is being said in the legislation.

We begin this series with one of the flash points held within the bill – the anti-circumvention provisions. This is namely the circumvention of music (which is called “Reproduction of music” in the act). This provision is found in section 29.22 of the act. The provision starts out seemingly reasonable enough with the following:

(1) It is not an infringement of copyright for an individual to reproduce onto a medium or device a musical work embodied in a sound recording, a performer’s performance of a musical work embodied in a sound recording, or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, or any substantial part of such a work or other subject-matter, if the following conditions are met:

(a) the sound recording is not an infringing copy;

(b) the individual legally obtained the sound recording, otherwise than by borrowing it or renting it, and owns the medium or device on which it is reproduced;

Is this a DMCA or a fair Use provision? It almost sounds quite reasonable and that this would allow for numerous new rights for the consumer such as format shifting. Unfortunately, and as Michael Geist has put it, “check the fine print”. The provision continues with this devil in the details:

(c) the individual, in order to make the reproduction, did not circumvent a technolog- ical measure or cause one to be circumvented, within the meanings of the definitions “circumvent” and “technological measure” in section 41;

Ouch, ouch and ouch again. First of all, Apple’s iTunes use DRM. So if you burn the music onto a CD (which would require circumvention, you’d be liable for copyright infringement. There’s also the issue of music that has some form of copy protection. One of the most notorious iterations of copy-protection was the Sony Rootkit DRM which opened up people’s computers to malicious attacks using cloaking technology that even virus scanners won’t pick up. So if you were to protect yourself from the Rootkit DRM and manage to put the music onto your hard drive, that would be an infringement. The same seems to be said if one were to get the music through disabling auto-run – a way to prevent the malicious rootkit software from being installed onto the computer. In essence, the Sony Rootkit through this provision alone has been more legalized then ever.

The provision mentions section 41 which states the following:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

So basically, no one is allowed to break DRM in any way shape or form which appears to include the Sony Rootkit DRM according to 41.1 (1) A.

Making anything that is primarily used to circumvent DRM is illegal according to 41.1 (b). One may wonder how one can interpret the law. The main question is, who can make the opinion that a certain “device” has the primary function of DRM circumvention? Viacom suggests that YouTube is primarily used for watching TV, but this isn’t really true given that there are thousands of people posting videos of their own such as home movies, opinion pieces, vlogging, animation demos, music video demos (something even major record labels are offering), making parodies of videos, etc. etc. The question is, is YouTube only used for copyright infringement? Arguably, according to the major copyright industry, this would be accurate, but to the digital activist, this is not at all true. The same could be said for something that could be used to circumvent DRM in music. This legal gray area the act creates would no doubt open the floodgates for litigation.

Section C also makes it illegal to distribute devices that are ‘primarily used for circumvention’ This clearly takes away rights from software writers given that even if they give permission for their works to be distributed (ala GNU/GPL/etc.) then the people redistributing the software (i.e. file-sharing) would still be violating the copyright act.

Some suggest that the act will close a legal loophole for software writers. Arguably, this section alone goes beyond this and makes it possible to punish people who use file-sharing to obtain free/open sourced content of this nature as well.

Going back to the music provision, it goes on to say the following:

(d) the individual reproduces the sound recording no more than once for each device that the individual owns, whether the reproduction is made directly onto the device or is made onto a medium that is to be used with the device;

So, in other words, if one were to manage to obtain a DRM-free CD, manage to avoid DRM through the process of copying, you can only put this work onto a device only once. If, say, the song is accidentally erased, it would be an infringement to copy it over to that said device (i.e. iRiver) It’s even worse to think about what would happen if there’s a system failure of some sort on your computer because copying the music onto the computer would be illegal. Put it in another way through example:

1. Person buys an MC Lars album.
2. That person rips a copy of that album onto their computer.
3. That computer undergoes a system wipe due to viruses getting on there through the Rootkit installed via the Switchfoot album earlier.
4. Said person re-installs everything and rips the MC Lars album.
5. Said person buys and iPod
6. Said person copies Lars album onto iPod

This “said person” is now a copyright criminal because of step 4 which made step 6 possible. So much for format shifting.

Moving on to the next section which states the following:

(e) the individual does not give the reproduction away;

This seems reasonable enough until one factors in the simple fact that Canadians pay a levy on blank media. Basically, whenever a person buys a blank CD, money goes to a copyright collective known as the CPCC. In some respect, this makes it even more illegal to give away music via CDs, thus criminalizing free promotion through mix CDs, mixtapes, etc.

Moving on to a reasonable bit:

(f) the reproduction is used only for private purposes.

Obviously, physical pirates, which many in the file-sharing community never really liked that much to begin with, would be in trouble legally speaking because of this alone.

This is how a non-legal expert might interpret this section of the bill. Obviously, a lot of controversial parts in this one section alone, but since this is a large bill, this is pretty much only the beginning.

digg_url = ‘http://digg.com/tech_news/The_Canadian_DMCA_Actual_Text_Music_Sony_Rootkit_Legal’;

The Canadian DMCA (Digital Millennium Copyright Act) got its name out of fears that the new copyright bill, which would amend the copyright act, would be modeled after the DMCA in the United States. The DMCA is very frequently pointed at for allowing the Recording Music Industry Association of America to sue thousands of American citizens and threaten thousands of college students for alleged copyright infringement.

Bill C-61 was tabled today and, as the nickname suggests, is modeled after the American DMCA. One of the major criticisms for the DMCA in Canada was the fact that the person who created the DMCA said that the DMCA was a failure. It’s now come to fruition that the Conservative party, the governing party in Canada currently, very likely ignored these criticisms and went ahead and tabled a copyright reform bill that is modeled after the DMCA anyway.

This isn’t the first time that DMCA-type legislation was tabled. Back in 2005, Bill C-60 was tabled by the Liberal party in Canada who was, back then, the governing party of Canada. Like the bill today, the copyright bill in 2005 was also modeled after the DMCA. The bill died on the order-paper when an election was called after the fall of the minority government.

There was attempts by the Conservative party to table copyright reform towards the end of 2007, but the fast growth of Fair Copyright for Canada among other things caused the party to panic and pull the legislation off the table. The movement didn’t stop there as Jim Prentice was later surrounded by protesters in his riding as this video shows:

While we are currently analyzing the bill, university law professor Michael Geist is offering a preliminary analysis of the bill. Here are some highlights he offers:

2. The digital lock provisions are worse than the DMCA. Yes – worse. The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent. While Prentice could have adopted a more balanced approach (as New Zealand and Canada’s Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM’d book, or even unlocking a cellphone.

While that is the similar to the U.S. law, the exceptions are worse. The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can’t actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned. In other words, check the fine print again – you can protect your privacy but the tools to do so are now illegal. Dig deeper and it gets worse. Under the U.S. law, there is mandatory review process every three years to identify new exceptions. Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years.

3. The other headline grabber is the $500 fine for private use infringement. This will be heralded as a reasonable compromise, but check the fine print. Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement). Moreover, it is already arguably legal to download sound recordings in Canada. Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award.

5. The education community received several provisions that are largely gutted by the fine print. For example, library materials can be distributed in electronic form, but must not extend beyond five days. In other words, it turns librarians into locksmiths. Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used. In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction. This was precisely what many feared – rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning.

While this will no doubt become a flash point for hot debate, we here at ZeroPaid will be conducting some analysis of our own in the coming articles on this topic.

digg_url = ‘http://digg.com/tech_news/Canadian_DMCA_Tabled’;

This stunning video, which had a person attend a Landmark indoctrination weekend equipped with hidden cameras, was aired to 1.5 million people on national TV. Within weeks Landmark pulled out of France with claims of abuse and unpaid labour.

The EFF is backing Google in this, claiming that Landmark is trying to silence critics. The three sites have removed the 450 MB video but the cat is out of the bag and available through BitTorrent or for online viewing at the Cult Awareness and Information Centre site.

French audio, ENGLISH SUBS.

BitTorrent:
http://thepiratebay.org/tor/3537369/2003_Inside_Landmark_Forum.avi

Cult Awareness and Information Centre:
http://www.caic.org.au/index.php?option=com_content&task=view&id=1243&Itemid=12