Tag Archives: copyright

Cloud storage, privacy, and Megaupload

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Today’s Slaw post:

The ongoing Megaupload case is a controversial lightning rod case for issues on cloud storage, privacy and copyright.  Megaupload basically ran a file storage and viewing service.  The US Department of justice shut them down, seized assets, and launched criminal prosecutions alleging that it is an organization dedicated to copyright infringement. 

Ben Schorr mentioned the case on Slaw recently, starting with the comment that “One thing has become clear in the last few months: Hollywood has declared war on the Internet.”  

Wikipedia summarizes the situation well, and points out that:

Techdirt argued that while the founder of Megaupload had a significant history of “flouting the law”, evidence had potentially been taken out of context or misrepresented and could “come back to haunt other online services who are providing perfectly legitimate services”.[81] Eric Goldman, a professor of law at Santa Clara University, described the Megaupload case as “a depressing display of abuse of government authority”. He pointed out that criminal copyright infringement requires that willful infringement has taken place, and that taking Megaupload offline had produced the “deeply unconstitutional effect” of denying legitimate users access to their data.[5]

Concerns include the arbitrary way the site was shut down, leaving the files of legitimate users stranded.  Also the possible over-reaching effect on legitimate cloud storage sites and file sharing.

The fight has come to Canada as well.  US prosecutors asked the Canadian AG to obtain a court order to send mirror imaged copies of 32 servers in Canada to US prosecutors.  The Ontario Superior Court of Justice refused to give the order based on the notion that the request was overly broad, and encouraged counsel to try to agree on the scope of material that would be relevant.

I find it interesting that the same Department of Justice that has been unrelenting and perhaps over reaching in the Megaupload case, is, according the the CIO blog:

giving a qualified endorsement of an update to a 1986 privacy law that leading cloud-service providers, public-interest groups and others argue is woefully out of step with the current methods of sending and storing communications.

In testimony before a House subcommittee on Tuesday, Elana Tyrangiel, acting assistant attorney general at the DoJ’s Office of Legal Policy, affirmed the Obama administration’s support for an overhaul of the Electronic Communications Privacy Act (ECPA) to provide stronger privacy protections for Webmail, documents stored online and other cloud services.

Cloud storage can be a useful tool – but be careful what you put there, use services with a good reputation, and keep duplicates elsewhere.  If your data is sensitive, consider your own encryption so no one else can see the contents.

New law accepts everyday activities

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For the London Free Press – November 26, 2012

Read this on Canoe

You’re no longer breaking the law when you use your PVR to record your favourite TV show for later viewing.

Teachers are no longer infringing copyright when they print publicly available materials from the Internet to share with students.

Comedians are no longer violating the Copyright Act when they create a parody of a topical song or movie.

The much-anticipated, long-awaited Bill C-11 — Copyright Modernization Act — has finally become law in Canada. Though some aspects of the new act are controversial, the changes are for the most part welcome and long overdue.

The new act addresses everyday digital activities and legitimizes many of them under our copyright laws. The legislation aims to strike a balance between the interests of the creators of copyright and the rights of users.

Copyright protection is vital to the promotion of innovation. But at the same time, there are other interests best served by allowing users access to copyrighted material.

Chief among the important changes to Canada’s copyright regime is the expanded definition of “fair dealing.” Previously, the exception for “fair dealing” was limited to research, private study, news reporting, criticism and review. Now, fair dealing also includes reproduction of copyrighted materials for education, parody and satire purposes.

The new law also distinguishes between commercial and non-commercial copyright infringement. Statutory damages for non-commercial infringement are now smaller than for commercial infringement — capped at $20,000 for each infringed work for commercial purposes and $5,000 for all infringed works for non-­commercial purposes.

Of course copyright owners can still sue for actual damages that they can prove, but in many non-commercial situations, it may be hard to show actual damages exceeding the purchase price of the work.

Some of the controversy the bill generated has been the result of the digital lock provisions. It is illegal to break digital locks in most situations. A digital lock is put on content by the provider to prevent copying. It might, for example, stop you from copying a DVD or CD. That is despite the fact that the law gives consumers the explicit right to do things such as format shift a CD to a memory stick to play it on another device owned by the consumer. The digital lock rule essentially allows the publisher to take away some rights that the legislation grants.

All of the consumer-oriented provisions have come into force. These include the expansion of the fair dealing concept, the limit to statutory damages for non-commercial infringement and the exception for publicly available electronic materials used by educational institutions in non-commercial settings.

Provisions still to come include rules requiring Internet service provider to forward notices to subscribers accused of violating copyright. The ISP also has to maintain a detailed record of the notification in case court proceedings follow.

www.harrisonpensa.com/lawyers/david-canton

Court quashes double-dipping fees on music, books

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For the London Free Press – August 13, 2012

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Consumers can breathe a small sigh of relief. The Supreme Court of Canada recently released judgments on five different cases involving copyright collectives — known as the “Copyright Pentalogy” — which heralded a victory for Canadian consumers. Copyright collectives collect licence fees on behalf of creators of materials such as music and books.

The court quashed a plan that would have authorized the collection of additional royalties on music downloaded through legitimate services, on the theory that buying a song by downloading it is essentially the same as buying it in a store. The court also ruled against fees being placed on song previews that we can listen to on sites like iTunes before we buy. The court held that this is research and falls within a fair-dealing exception of the Copyright Act.

Canada’s video gamers and movie watchers can also claim victory. The collectives sought to collect additional royalties for music used in video games and movies. However, the court held that this would amount to a “double-dipping” and that additional royalties would not apply.

Schools also participated in the good news. Ruling against the proposal to collect royalties on photocopies for educational purposes, the court held that the educational use of photocopies is research, and thus fell within a fair dealing exception in the Copyright Act. The court held that it did not matter whether the copying was done by a teacher or a student. There are limits, however. It would not be considered fair dealing, for example, to copy an entire textbook.

These decisions were mainly centred on the common theme of fair dealing. The concept of fair dealing has existed in the Copyright Act for quite some time. The Canadian concept of fair dealing has allowed users to engage in certain activities relating to research, private study, criticism, review, or news reporting. These recent court decisions, and some others over the past few years, have expanded the practical application of fair dealing, which must be given a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”

In addition to broadening the right of fair dealing, the court also broadened the approach by deciding that the relevant perspective when considering the purpose of the dealing is the user.

Hot on the heels of these cases is Bill C-11, coming into force some time in the next few months, which further expands the concept of fair dealing by adding education, parody, and satire to the fair dealing list.

http://harrisonpensa.com/lawyers/david-canton/ 

 

 

Court protects hyperlink activity on Internet

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For the London Free Press – July 23, 2012 – Read this on Canoe

Hyperlinks form the basis of the way we use the Internet – ranging from Facebook to Twitter to blogs to email. But can linking to content that might be defamatory be itself defamatory? Can linking to copyrighted material be a copyright violation? Fortunately, the courts have said mere links to such content are not.

A recent Federal Court decision dealt with a link to copyrighted material. Warman and National Post vs. Fournier stemmed from Fournier posting portions of articles and a link to a photograph.

Regarding the photograph, the court found that the work was posted on the applicant’s personal website and thus the communication of the work occurred by creating a link to the applicant’s own website.

The work remained within the applicant’s full control and if the author did not wish it to be communicated by telecommunication, he could remove it from his website, as he eventually did. Thus, the applicant authorized communication of the work by posting it on his website and therefore there was no infringement. In other words, a link to the photograph is not copying the photograph.

The copyright claim for posting an article was based on the reposting of 3 1/2 paragraphs of an 11-paragraph article.

Reposting portions of articles within a commentary or reporting context is very common. The court concluded that this amount of copying was not a “substantial part” of the work and therefore there was no infringement.

The court added that even if it was a “substantial part,” the reproduction of the work was covered by fair dealing for the purposes of new reporting, as outlined in the Copyright Act.

The Federal Court cited a 2004 Supreme Court of Canada decision that explained fair dealing as an integral part of the copyright regime and a user’s right.

Fair dealing “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”

That case is consistent with the 2011 Supreme Court of Canada decision in Crookes vs. Newton, where the applicant’s defamation claim was based on two links created by the respondent that connected to defamatory material. The argument was that by using those hyperlinks, the respondent was publishing the defamatory material.

The court ruled that hyperlinks are fundamentally different from other acts of “publication.” Inserting a link gives the author no control over the content in the article to which he or she has linked.

The court stated that a hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a link to a source containing defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel.

The court concluded that applying traditional defamation rules to hyperlinkers would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

In both of these decisions the court applied a liberal interpretation in order to ensure users’ rights are not unduly constrained, recognizing the unique nature of Internet linking.

http://harrisonpensa.com/lawyers/david-canton/

Another decision that linking is, well, just linking

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Today’s Slaw post:

In a decision dated June 21, 2012, the Federal Court made it clear that, for purposes of copyright, using a hyperlink is not copying the material it points to. That seems obvious, but its nice to see it recognized by the courts. The  Warman and National Post v Fournier  decision also said that – at least in the circumstances of the case at bar – reproducing 1/4 of an original article was not a substantial part for copyright purposes, and was thus not a copyright violation.

This follows a Supreme Court of Canada decision last fall that said that a hyperlink to defamatory material is not in itself defamatory.

http://harrisonpensa.com/lawyers/david-canton/

Terms of use needs balance

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For the London Free Press – April 2, 2012 – Read this on Canoe

Have you ever considered what a service provider – such as a cellphone company or social networking site – can do with the photos and other content you send or post using that service?

Sometimes the terms of use of the service provider are so broad they give the provider the right to use it for things such as their advertising, or to be able to sell user content for the service provider’s own gain.

Terms of use, or terms of service, are the rules we agree to when we contract to use a service. That might take the form of a written contract we sign when we purchase a cellphone, or the click-wrap agreement we click “I agree” to when we subscribe to a social media service such as Facebook or Pinterest.

Terms of use often include some form of licence or permission language stating what the provider can do with content users send or post using the service. Defining that is important to make clear what rights the service provider has to that content. In most circumstances, that licence language should grant the service provider rights to the content that it reasonably requires to provide its services.

Occasionally, these licence permissions are drafted overly broad and grant the service provider the right to do almost anything it wants with the content.

For example a cellphone provider was recently criticized for language that said it: “will be free to copy, disclose, distribute, incorporate and otherwise use the content and all data, images, sounds, text, and other things embodied therein for any and all commercial or non-commercial purposes.”

In most cases, such overly broad language is not a nefarious plot to acquire user content for the service provider’s own use or profit. It is more likely the result of contract drafting that has not been thought through properly.

The drafter was rightly thinking the terms of use needed some licence language to define what the service provider can do with the user’s content. And the language does indeed give the service provider the rights it needs. So from that perspective the clause works.

But the clause is a failure because it grants rights that the service provider doesn’t need, and doesn’t want. And it fails to look at the issue from the perspective of what uses a user would be comfortable granting to the service provider.

In other words, the clause does not balance the rights and needs of the parties.

So why would a service provider care, given that most people don’t bother to read terms of use?

Some people do read them, and eventually the language will end up being publicly criticized. That doesn’t bode well for the reputation of the service provider, and it may never know how many potential users voted with their feet and didn’t use their service because of the overly broad language.

Stop SOPA – PIPA protest

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That’s the title of my Slaw post for today.  It reads as follows.

Here are some of the sites that are going dark today, or changing their home pages in protest over the proposed US legislation. For more information on why this legislation is so bad, check out these sites, or search for “SOPA” on Slaw or Techdirt.com, or just Google it.

Wikipedia:

Boing Boing

WordPress

EFF

This is Google’s US site. Google’s Canadian homepage does not seem to be affected.

Michael Geist

 

Why Sopa & Protect-ip are bad ideas

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There is proposed legislation in the US that would give broad rights to block entire web sites based on mere allegations that a small part of it might have some infringing content.   The legislation is backed by the entertainment industry as an anti-piracy measure.  There is a groundswell of opposition against the legislation, but it is still very possible that it could become law.

Mike Masnick of Techdirt has a great article explaining in detail what the problem is.

 

 

Search for use of photos

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If you have posted photos online and want to know where others might have used them – or if you want to use a photo you have found but are nervous about the poster’s claim that it is free for use, you can search images to see where they appear on the web.

That’s not to guarantee that the searches will be comprehensive, but the information could be valuable.

The photattorney blog mentions 2 ways to search.  One is to use tineye.  The other is to use Google Images.

See the post for more detail.

 

Harper Government should consider NDP tech policies

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That’s the title of my Slaw post for today.  It reads as follows.

For the record, I don’t support the NDP, and their fiscal policies are plain scary. But that doesn’t mean that their viewpoints on everything ought to be ignored. The NDP tech policies on issues such as net neutrality, usage based billing, and copyright are in many ways more compelling than the Conservative policies. Now that the Conservatives have a majority and don’t have to fight for their existence every day – lets hope they take a step back, take a deep breath, and take a fresh approach to tech issues.

The prosperous future of Canada is to a great extent dependant on the use of technology, the internet and wireless access, and all things digital. That is true for consumers, for business, and for innovators. It is important to have policies that foster that. That point will no doubt be made repeatedly at the Canada 3.0 Conference taking place today and tomorrow.

On the proposed lawful access bill for example. Either drop it all together, or take another serious look at it. Mr. Harper has said that the rights of ordinary citizens should be more valued than the rights of criminals. So recognize that individuals have privacy rights that ought to trump the ability for law enforcement to go on random warrant-less fishing expeditions into our digital lives. If that isn’t a good enough reason, recent data breaches should teach us that the easiest way to prevent a data breach is not to have the data in the first place. Don’t tempt fate by requiring service providers to retain information on customers that is not needed to provide their services. As well, requirements to retain data are in effect an additional tax on the tech sector.

Copyright reform has been a hot topic for years, with many controversial bills being drafted but never passed. One of the issues that concern many of us are provisions that support digital locks. Those provisions do more harm than good, and in essence turn copyright policymaking over to rights holders. There is also the appearance – reinforced by recent wikileaks documents – that too much consideration is being given to the pressures of foreign entertainment lobbies and governments. The NDP policy on copyright merits consideration when drafting the next bill, as it seems to take a more balanced made in Canada consumer friendly approach.