Already, one UK minister said that a so-called “three strikes” law is too draconian back in June, but more recently, a UK ISP tried to institute their own three strikes law. That case caused the Open Rights Group to describe the three strikes regime as ““Guilt by accusation, punishment without trial“.

This may really ultimately be the core problem of a so-called three strikes regime – how many civil or criminal cases can see someone punished based on an accusation and without the option of going to court? What a three strikes regime has had a history of is trying to dodge the whole court system and skip right to punishing people based on an accusation essentially.

That’s what makes the latest blog posting on the UK Pirate Party’s website all the more interesting. In it, Andy R. discusses legal aspects of file sharing.

Back in June of 2008, a leaked letter said that the government was setting a goal of reducing file-sharing by 80%. When the Digital Britain report was issued later that month, that target ended up being 70%. By then, many in the file-sharing community were up in arms over the governments plans. Fast forward a year later, the British government wanted more time to reach that goal.

This was brought up as a key point in the UK Pirate Party’s posting. Under the presumption that a fair trial were to be brought up to the accused for each case, Andy R. had this to say:

Justice for those accused of file sharing will naturally require the opportunity for those accused to have an opportunity to see the evidence against them and challenge it in a court of law. To reduce file sharing by 70%, assuming 7 million people sharing 100 files each means dealing with 70% of 700,000,000 files. That’s 490,000,000 fair trials, or if, as has been rumoured there are to be two different offences, one for uploading, another for downloading, nearly 1 billion fair trials.

Her Majesty’s Courts Service say in their annual report that they dealt with 150,000 criminal cases and 2 million civil claims last year. Can they realistically be expected to cope with an additional 1 billion next year, and has their budget of £1,766,222,000 been expanded 500-fold to do so? The answer, quite simply is no.

The inescapable conclusion is that the government are not intending to fund the expensive luxury of justice for those accused of file sharing. We can only afford to have a system without justice, where simply being denounced by a copyright-holder is sufficient for summary punishment to be dealt out, and that summary punishment will be dealt out to 70% of 7 million people.

This is an extremely strong argument using basic math. After all, in the US, ever since Napster was shut down, there has been a rigorous lawsuit campaign against file-sharers by rights holders with, unsurprisingly, an emphasis on deterrent punishments. Andy’s argument is a very good highlight on why the copyright industry simply cannot go after every file-sharer and why there was a strong hope that deterrents would work – which they didn’t. It’s the simple principle many file-sharers have been aware of for years – safety in numbers.

Since the industry cannot scare people back into the music stores, it’s not a surprise that there is the strong push for a three strikes regime these days – to skip the expensive justice system altogether so they don’t litigate themselves into bankruptcy.

The problem of enforcing a three strikes law is that it doesn’t jive with the whole concept of justice in the first place – guilt upon accusation, punishment without trial. In order to enforce such a regime, the industry has the next to impossible task of trying to convince the public that the court system is no longer needed in cases of copyright infringement to justify a three strikes law.

Suddenly, those court rooms with those evil lawyers, corrupt judges and a disgrace of a legal system now becomes the file-sharers safety net. Quite the reversal of thinking in light of the US government siding with the RIAA and urging the judge to ignore arguments that the Jammie Thomas damages of $1.92 million in fines for many file-sharers aware of the political wrangling’s of copyright.

Given that the copyright industry in the UK is pushing – and pushing hard – for a three strikes regime in the UK and that many are realizing that the sought after three strikes regime involves the accused not being able to dispute the accusations in court, it’s not hard to figure out why there is a rise in the Pirate Party’s popularity these days. A political party that many see as impervious to the back room lobbying of the copyright industry to push through draconian copyright laws. As the threats grow for many who might – whether warranted or not – have their culture of the internet cut off, those people discover the real threat of human progress being pulled back by close to 25 years and all the benefits that came with the internet revolution.

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Not that the arguments aren’t self-defeating or are a departure from reality, but those are among a number of arguments being made for a blanket ban on circumvention. The op-ed was posted on the Straight and does a pretty good job at listing off the myths surrounding piracy and TPMs. We felt it was necessary that there would be a response to these arguments.

“Internet piracy of video-game software in Canada has undergone explosive growth,” Parr writes, “and we detected a stunning 300 percent increase in the number of games illegally downloaded via Canadian ISPs between 2007 and 2008 (and this reflects but a fraction of the total illegal downloads in Canada detected by the industry as a whole).”

Either this point is completely untrue and made up, or the industry’s method of gathering information is severely flawed. ISPs have admitted to the CRTC that the bandwidth growth, particularly in the span of 2008 and 2009, fell by 45%. If piracy, even gaming piracy, grew by a “stunning 300 percent”, you would think that bandwidth growth would increase, not decrease. So who would you believe? The ESA who “detects” piracy, or the ISPs who can actually see the network bandwidth themselves?

“Today,” Parr continues, “it costs between $10 and $30 million to develop a top-tier video game, and few games actually sell enough to achieve profitability. In light of the substantial investment required and the high degree of risk associated with the production of entertainment software, piracy fundamentally undermines the industry’s ability to recover its investment, resulting in fewer games as well as lost revenue and employment opportunities.”

Yet, in the same breath, Parr wrote just two paragraphs earlier, “The video-game industry is the fastest-growing sector of the entertainment industry in Canada, and one of the most vibrant, fastest-growing industries in the world. [...] Canada recently overtook the United Kingdom to become the third most successful producer of video games in the world.”

Amazingly, he still takes that argument to say, “new copyright legislation must provide legal protection for TPMs, prohibit trafficking in “mod chips” and other circumvention devices and services”

In other words, the industry is growing at an amazing rate (without anti-circumvention legislation) but piracy exists, so anti-circumvention law is required. If Canada is growing to be a world leader, overtaking other countries including those that have anti-circumvention legislation, doesn’t that render the argument that there needs to be anti-circumvention legislation null? If the gaming industry has been growing spectacularly well, why is there suddenly this need for anti-circumvention legislation in the first place?

Parr also argues, “implementing legal protections for TPMs will benefit consumers by providing greater certainty in the digital marketplace, which will, in turn, spur investment in the development of new digital products, services, and distribution methods; more consumer choice; and lower prices”

Question, how often does a hardcore gamer say, “Gee, I’d love to buy this video game, but I’m not sure I want to because I am uncertain about the overall game marketplace.”? Maybe what Parr meant to say was, “implementing legal protections for TPMs will benefit stock investors by providing greater certainty in a digital marketplace”. After all, it seems much more reasonable to hear a hardcore gamer say, “Boy, I’d love to play more games.”

Furthermore, TPMs have proven in every other digital authorized marketplace to enforce monopolies and put a further squeeze on competition and consumer choice. A modded console has been known to expand the functionality of a gaming console in ways that weren’t originally part of the console – allowing developers to create applications and find new innovative ways to use a game console. Conveniently enough, that wasn’t mentioned in the op-ed. If you want a recent example on how TPMs block innovation, you could do a whole lot worse than to read up on the RealDVD case or the DVD Jukebox case.

“If a creator or company chooses to sell their work as a digital product or service, legal protection for TPMs helps ensure that this choice is respected, much in the same way that locks on the doors of a bricks-and-mortar store allow the owners to determine when and how consumers can access their product.” Parr wrote.

It’s a flawed comparison to compare owning a product to a physical store. If one were to pay for that store, why should someone else add further restrictions on what one can do with that store even though it was legally bought and paid for? If one were to use the bricks and mortar allusion, the more realistic comparison is that if you were to buy a building and you are now the legal property owner of that building. Then, the person who sold that building said, “OK, now that you own this building, you are only allowed to have the store open every 10 minutes on the hour and you can only sell merchandise to people with shaved heads or people who have been to a Rolling Stones concert and a Linkin Park concert within the span of three weeks.” This is not a reasonable demand on the sellers part. You paid for the building under the premise that you bought it outright, it should be yours. Who’s to say you are going to turn it into a store and not a gym? When you pay for content with digital locks, you rent it, you don’t buy it.

Parr comment that has earned a lot of counterarguments was this: “Failing to protect TPMs under the law effectively means that the government is dictating the business model, which is bad news for business and for consumers.”

The government is certainly not dictating any business model by not introducing blanket anti-circumvention legislation. If a company wants to implement DRM, and one company did in 2005 with rootkit and spyware technology (and they were sued for it in the end), they are free to do so in Canada. Not implementing anti-circumvention technology is not saying, “All copy protection is banned in Canada” by any stretch of the imagination. However, many do see anti-circumvention legislation as effectively dictating how the market can legally operate.

All in all, while an OK attempt to justify anti-circumvention legislation, like all other arguments that we have seen so far that are for restricting copyright, the arguments are either a departure from reality, philosophically incorrect or simply relying on myths and unverifiable information.

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The CFHSS has issued a call to action on the copyright consultation.

“Representing as it does scholars who cherish and produce copyrighted works,” the CFHSS says, “the Canadian Federation of Social Sciences and Humanities certainly supports efforts to reduce the commercial‐scale piracy. However, we call for a law that balances the economic rights of creators and/or owners with society’s right to gain access to knowledge. Access to knowledge is a crucial stage in the life cycle of new creativity and innovation. The rights of scholars, students, universities, libraries, taxpayers and consumers must be preserved in order that this cycle can continue to generate novelty, critique, meaning, and collective cultural experience. Scholars in the humanities and social sciences work primarily with human creations, human ideas and human interaction – much of which falls under copyright. Our work in turn, once fixed in print or other media and shared with the academic community and the public at large, falls under copyright. Copyright thus to a large extent determines the conditions of possibility for our research and knowledge sharing. Many legislative amendments proposed and even introduced over the past several years would severely impede the ability of scholars to carry out their work, and the ability of Canadians to share with and learn from one another: we must be wary, creative, and outspoken about the next stages of copyright reform.”

Right here, the CFHSS makes a very important and critical distinction here. Very few, if any, support commercial piracy. Taking content, burning hundreds of copies and selling it on the street is something that will not lend you very much sympathy both from the industry and file-sharers alike. That doesn’t mean Technical Protection Measures (TPMs) or digital locks, as they have seemingly become most commonly known as in Canada, should somehow trump all forms of fair dealings. Commenting, critiquing and parody are among one of the most effective means of spreading culture around – something that benefits content creators, both who are getting critiqued and by creators who are doing the critiquing. Exceptions to copyright law that allow society to respond to creative works greatly enriches society as well as the original creative works.

CFHSS also comments, “It has been said that digital technologies create a necessity for greater protection for rights‐owners in order that the economic effects of the tech sector can be maximized. In our view, it is short‐sighted and narrow‐minded to think of new rights for creators or publishers as the only way to increase activity in the cultural and cyber industries.”

There is little doubting the kind of opportunities new technology has provided. The internet has helped connect artists to their fans in ways that was unheard of before. In fact, one musician has already commented how file-sharing has become a very valuable learning tool for artists. Now, artists are able to go through different genre’s of music and learn about what is out there to enrich their own creative pallets. There are even the odd person here and there now that would go so far as to say p2p is creating content creators. On a personal note, I should know as I am one of those people.

In short, here are the core arguments CFHSS are making:

1. Make the concept of fair dealing more clear and flexible to encompass the reality of teaching, learning and research in the context of digital technology by integrating the Supreme Court’s tests for fair dealing from CCH v. LSUC (2004) into the Copyright Act.

2. Forbid the circumvention of digital locks (DRM) only if the locks are broken for infringing purposes.

3. Avoid specific exceptions, such as those in C‐61 for digital interlibrary loan and educational use of the internet: fair dealing already covers many educational uses, and specific exceptions are often entirely
unworkable.

4. Work towards format neutrality in the Act, so that various media are treated in an equivelent way.

5. Add a provision that contract law may not trump fair dealing.

6. Refrain from lengthening copyright term.

7. Make provision for more practical access to orphan works

8. Eliminate crown copyright.

Already, the DOC has called to expand fair dealings for people who make documentaries.

Currently, a lot of this seems to coincide with what many are already submitting to the copyright consultation. Michael Geists latest update shows that the submission trends are continuing.

According to updated numbers, there are now 465 submissions against anti-circumvention or in favour of limiting DRM/Digital locks, 431 submissions in favour of stronger personal use/copying and backup protections, 400 submissions against another Bill C-61, 389 submissions that favour a “notice and notice” approach and 388 submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing. On the other side of the debate, there are 2 submissions in favour of stronger penalties for copyright infringement, 2 submissions in favour of implementing WIPO, 1 submission in favour of limiting file sharing, 44 submissions against works being available in digital or other forms for free and 1 submission in favour of turning copyright into a crime. With supporters of loosening copyright laws ranging between 10 times to about 400 times the submissions that ask for restricting copyright, the chances of successfully arguing that most Canadians want to follow positions expressed by the pro-copyright restricting camp, who have argued for a three strikes law, has grown increasingly bleak.

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.

In court documents (PDF – Via Ray Beckerman), the judge in the Sony vs Tenenbaum case issued instructions to the jury.

“In this case,” the judge wrote, “each plaintiff contends that it is, and at all relevant times has been, the
copyright owner or licensee of exclusive rights under United States copyright law with respect to certain copyrighted sound recordings, and that the defendant, Joel Tenenbaum, without the permission or consent of such plaintiff, used a peer-to-peer network to download the plaintiffs’ copyrighted recordings and/or distribute the copyrighted recordings to the public.”

The judge said that the plaintiff had to prove that they owned the works and that the defendant infringed on that work.

“In this case,” the judge concludes, “there is no issue as to liability.”

“Because there is no issue as to liability,” the judge adds, “you must decide on damages. When you do, you
must select a damages award within the specified statutory range.”

The judge clarified only that the statutory range is between $750 to $30,000 “per act of infringement”.

From an outsiders perspective, this is a rather shocking instruction. Perhaps Hollywood has clouded what goes on in the American court system where people mistakenly believe that a jury had the power to decide whether or not the defendant was guilty of something or not. Apparently, in an actual American court, the jury’s roll is to watch the case, pick a number and go home. In order for this to happen, the plaintiffs have to be part of the RIAA or MPAA and simply show up, and claim their millions – if the MPAAs comments about needing evidence is anything to go by. The defendant’s roll is to sit there and receive an automatic guilty verdict. At least, this is what one can learn in this case. And you thought only the Swedish justice system handling the Pirate Bay case seemed insane.

It’s hard not to mention the justice scene in Idiocracy where the plaintiff won the case simply by saying that they have a whole bunch of, pfft, evidence, and that the court should say that the defendant is guilty. It truly appears that a similar thing has happened in this case.

Already, many have condemned the Jammie Thomas fine of $1.92 million including many during Canada’s critical critical copyright consultation. Perhaps at this stage, one could add how someone could be guilty of online copyright infringement simply because the industry said so as well in an American style copyright law.

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.

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]

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.

“Let it not be done in silence!” Said one Blog poster by the name of Henrik Alexandersson. He offered a list of what is currently at stake:

• Enhanced cooperation between the EU and USA “in the field of freedom, security and justice”.
• National anti-terrorist center in all EU states, who will report to Brussels.
• All EU states must share their intelligence with all other member states.
• More and more effective, “data-mining”.
• Real time access to data on, for example, citizens’ travel, banking, mobile positions, internet use, and to fingerprint and portraits.
• Streamlined monitoring by active collection of citizens’ electronic footprints.
• EU standards of supervision.
• EU harmonization to remove legal barriers to surveillance and interception.
• Analysis at European level of material from national surveillance and mass interception.
• An expanded EU bureaucracy for monitoring, interception and analysis, known as SITC.

“As Emma raised through non-aligned Sweden,” Rick Falkvinge, founder of the Swedish Pirate Party commented on his blog, “it feels almost obscene to the Swedish capital city synonymous with a package whose purpose is to introduce a Bodström Samhälle beyond what was previously seen, and the elimination of legal civil rights protection for it.”

The Swedish Pirate Party website also notes that the protests will happen from July 15-17 at Humlegården, Stockholm.

While on the surface, it appears to just be “stopping the terrorists”, we should note that, in Europe, there’s been multiple attempts to use systems supposedly set in place to stop terrorism for the commercial interests of the copyright industry. Austrian newspapers wanted to use data retention to enforce copyright for one. For another, German publishers wanted to add RapidShare to the national blacklists. While it doesn’t appear that file-sharing related activities are even close to being in the Stockholm Program, it’s hard to deny that surveillance to enforce copyright is indirectly one step closer to becoming a reality thanks to this.

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.

May also talked about how copyright law changes are already in the party platform. She said that the party is very concerned with how copyright laws and patent laws are used to restrict the flow of free speech, creativity and even the advances in the health sciences in favour of corporate interests who want a monopoly on such things. On patents, she suggested that patents are decreasing the likelihood that cures for cancer or AIDS because the steps to discovery are patented by pharmaceutical companies.

The whole interview can be found here.

“And on the subject of Copyright,” commented Reading 4 New Times, “neither Liberal nor Conservative governments have impressive resumes.”

There is also the note that Canada employs a first past the post electoral system and says that vote splitting prevents special issues from being part of law reforms. It is indeed true that, time and time again, the First Past the Post system has been a major contributing factor for keeping two major parties in power and keeping other parties with noble causes out – mainly interests that might very well serve Canadians.

While there is a notable tone of friction between the two parties already, that kind of friction is to be expected given the electoral system. However, the interests of the Green Party resembling that of the Pirate Party isn’t without international precedent. In Sweden, the Pirate Party opted to sit with the Green Party (Google Translation) in
the European Union because of similar interests.

What should also be noted is that copyright issues have only been an issue with the Green Party for the last 2 years. I’ve personally had a chance to talk to Green Party Candidates in both the 2008 election and the 2006 election. During the 2008 election, copyright issues were definitely ingrained into the Green Party platform and consistent with the stance seen in the interview with May. However, in 2006, when I personally brought up the issues of bad copyright laws, the Green Party candidate unfortunately said that she really didn’t know much about those issues. The NDP seemed to have knowledge on this area since 2006 – at least among some members such as the very notable Charlie Angus. One could draw the formation of the Pirate Party as an extra wake-up call for, at the very least, smaller parties to bring forth the issues that have been seemingly absent in the text of both Bill C-60 in the Liberal government and Bill C-61 in the previous Conservative government (this session, so far, hasn’t produced a copyright reform bill)

While the Pirate Party of Canada Manifesto hasn’t even been completed, the effects of their formation has already been felt by many including other parties.

[Hat Tip: Michael Geist]

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.

One of the akiles-heel’s of the copyright industry’s legal war on file-sharing has always been getting a sufficient amount of evidence to prosecute alleged copyright infringers. In Canada, for instance, when the RIAAs Canadian arm known as the CRIA filed lawsuits against file-sharers, an IP address wasn’t sufficient evidence. A similar thing with regards to lack of evidence has reportedly happened in Germany recently.

Firebird77 of Gulli wrote in recently to inform us of this development (Google translated). If the Google translation from German to English seems a bit confusing, he was kind enough to give us a brief summary for us.

Essentially, this is what had happened. A German file-sharer received a cease and desist order from the German law firm Schutt & Waetke on behalf of CDV-Entertainment, a copyright holder of video games. After several reminders, the lawyer handed the case over to Infoscore. After Infoscore issued a few final final demands, the case was then handed over to another law firm known as Haas & Partners. That law firm sent an additional warning letter before they demanded a court to issue a default summons. Firebird77 tells us that this particular part of the development is new in Germany. Several users then contradicted the order for a default summons, but the contradictions lost.

At this point, the alleged copyright infringer was issued an enforcement order. That was when the alleged copyright infringer issued a contradiction. So, the court ordered Haas & Partners to substantiate their claims. After receiving this order from the court, the lawyers on the case withdrew their claim to the surprise of some who are watching this case.

It’s unclear whether or not this could be a new strategy for file-sharers in Germany, but if these events play out in future cases, the copyright industry in Germany could have a brand new obstacle in their path to try and stop alleged copyright infringers in Germany. Still, the likelihood of these events from repeating every time could also be very slim. In any event, it seems to be a new victory for file-sharers and a surprising blow for the copyright industry.

Special thanks to Firebird77 for passing this along!

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.

The Conference Board of Canada’s reputation has become the latest casualty in the copyright debate in Canada. Yesterday, we reported on the fiasco that the Conference Board of Canada’s Digital Economy report plagiarized another report which was published by US copyright lobby groups. Michael Geist, who blew the lid off of this commented on how most educational institutes would not allow this kind of plagiarism to take place in an academic environment.

Now, professor Geist spotted a posting by copyright law researcher Jeremy DeBeer which seems to show that, according to Geist, the paper by DeBeer’s conclusion is different from the Digital Economy report.

“Initially the media focused on the Conference Board’s conclusions,” DeBeer commented, “but today’s headlines address more serious allegations about the reports’ objectivity and even possible plagiarism.”

Debeer continued, “I’m especially interested in these stories because last year I was commissioned to provide a research report for the Conference Board on these same issues of IP and innovation in the digital economy. The Board and I made the standard agreement that I’d be permitted to use the work I created in my subsequent academic and professional activities, but not until 12 months after my project was finished. It is a pretty weird coincidence that the 12-month window ended today, May 26, 2009.

So, in that context, I’ve released my research report as a working paper in the Social Science Research Network’s online repository of scholarly works. I haven’t yet had a chance to read the Conference Board’s reports as closely as I plan to over the coming days, but I’ll be curious to see how the reports align with my own research on the links between IP and innovation, and with my independent policy recommendations.”

Additionally, DeBeer offered his conclusion in his paper:

IPRs can facilitate innovation if an appropriate balance is struck between sufficient protection and free competition. Canada’s laws governing IPRs are recognized to be very good, but could be improved. With respect to copyright in the digital environment, three priority issues to deal with are implementing treaty provisions regarding TPMs, clarifying intermediaries’ liabilities and obligations and enabling greater use of flexibilities and limitations.

Canada should follow the example set by Israel and adopt a ‘wait-and-see’ approach toward TPMs, in order to avoid entrenching a potentially inappropriate regulatory regime for technologies with an uncertain economic and cultural future, or a middle-ground model with circumvention prohibitions tied to infringement should be adopted. Intermediaries should be required to assist in online copyright enforcement under a ‘notice-and-notice’ system that requires them to inform customers of alleged infringements, and policy-makers should closely follow and participate in discussions about self-regulation. Canada’s statutory system for fair dealing should be amended to take account of technological, cultural and commercial realities and to create new opportunities for economic growth and innovation, while stakeholders simultaneously work together to design best practices online.

DeBeer has released his working paper in full for others to review.

If there was a particular conclusion that the Conference Board of Canada was trying to produce – namely a conclusion that would support foreign interests claims that Canada needs to restrict copyright laws, the Board wouldn’t be the first entity to do so.

In 2006, a report by Connectus Consulting entitled “The Economic Impact of Canadian Copyright Industries – Sectoral Analysis” made a number of comments regarding the Digital Economy. The report was also picked up by Dr. Geist as well who had the following highlight:

The sound recording case study is particularly compelling since the data contradicts both the industry claims and the expectations of the report’ s authors. It begins by stating that “there is little doubt that the Canadian sound recording sector has undergone significant change in the past several years, primarily as a result of illegal music downloading (or peer to peer file sharing) and the consequent impact on the sale of recorded music.”

Incredibly, the report’s authors marshal no economic evidence to support this unequivocal assertion nor do they offer any legal analysis to back up the claim that peer-to-peer downloading is illegal in Canada. In fact, the study undermines its own credibility by ignoring evidence that the changes in retail distribution channels, the decline of radio, and competition from other consumer entertainment products such as DVDs and video games are primarily to blame for dropping sales.

Regardless of the reason, the report’s authors were clearly surprised when the economic data contradicted their stated thesis. Warning that “these findings should be treated with caution”, the study reports that the Canadian sound recording industry grew steadily from 1999 to 2004, with the GDP contribution jumping from $243 million to $387 million.

Obviously, the Conference Board of Canada didn’t learn from the Connectus Consulting incident and ultimately sold their credibility to the US copyright lobby by issueing the Digital Economy Report which ignored any contradicting conclusions or research done by third parties. Now Canadians from across the country are learning about this fiasco today. The question remains, will other entities learn from this second incident or will history, once again, repeat itself and another Canadian entity will have their reputation stained by issuing a report that repeats unsubstantiated claims by the foreign copyright industry?

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 definitely heavy involvement from the United States in the case against The Pirate Bay, but could such a thing be more common if a new piece of legislation in the United States becomes law? Who knows? What we do know is this, IP Watch is reporting on H.R. 2410, the Foreign Relations Authorization Act for FY 2010-2011 – mainly the section on enforcing intellectual property.

The legislation states that “The Secretary of State shall ensure that the protection in foreign countries of the intellectual property rights of United States persons in other countries is a significant component of United States foreign policy in general and in relations with individual countries.”

It further states, “The Secretary of State, in consultation with the Director General of the United States and Foreign Commercial Service, shall appoint 10 intellectual property attaches to serve in United States embassies or other diplomatic missions. The 10 appointments shall be in addition to personnel serving, on the date of the enactment of this Act, in the capacity of intellectual property attaches from any department or agency of the United States at United States embassies or other diplomatic missions.”

That’s right, “Subject to paragraph (2), in designating the embassies or other missions to which attaches are assigned under subsection (b), the Secretary of State shall give priority to those countries where the activities of an attache may be carried out with the greatest potential benefit to reducing counterfeit and pirated products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries.”

No really, this is what you think it is, “The activities of intellectual property attaches under this section shall be carried out in coordination with the United States Intellectual Property Enforcement Coordinator appointed under section 301 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8111).”

As IP Watch says, the “bill [was] introduced into the US House of Representatives by House Foreign Affairs Committee Chairman Howard Berman (Democrat, California) that would “enhance State Department resources and training for intellectual property enforcement efforts in countries not meeting their international obligations,” the Chamber said.”

Surely some people in other countries would object to the very idea that another country can dictate what the countries laws should be and how those laws should be enforced. We know there are plenty in Sweden that dislike the United States involvement in the daily affairs of Sweden. In Canada, Michael Geist noted that the language of the bill suggests that “Canada would be a likely target.”

So in the end, if (very likely) the legislation is passed, the next time United States representatives come in to your country and start pressuring lawmakers to pass seemingly draconian copyright laws, you can thank the law of the land in the United States for that.

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