Kindling Copyight Controversy

The L.A. Times, which is hardly an anti-copyright publication, has a good editorial today that comes down against the Authors Guild position and Amazon's "capitulation."

It concludes:

Innovators such as Amazon are and should be free to create devices that help consumers exploit all of the rights they obtain when they purchase books and other copyrighted material. And by the way, Authors Guild: Amazon sells e-books. The Kindle makes those products more appealing to consumers, which makes them more valuable to authors and publishers. If authors hope to compete in the digital era, they need the e-book market to succeed. Stripping features from the Kindle 2 won't help.

The real issue here is that the Authors Guild is forcing Amazon, which is not exactly a weakling, NOT to innovate and to deny users' rights. The Authors Guild argument is based upon specious legal arguments for rights that do not exist. Amazon caved for its own business reasons.

This is yet another example of users' rights being blocked off by TPM and DRM, imposed for "business" and not legal reasons. That's why its very difficult for most non techie people to snip out portions of DVDs for perfectly legal purposes - such as research or criticism.

If antitrust enforcers ever awake from their long sleep filled with dreams that IP owners rarely if ever do more than merely enforce their IP rights, things might get better before they get worse. In any event, Canada must consider legislation that expressly enables the circumvention for legal purposes of DRM and TPM locks.

Otherwise, we will sooner rather than later live in a world of perpetual copyright, with no effective fair use/dealing rights and no ability to copy insubstantial portions of works. These are users rights that have been enjoyed since the earliest days of technoloy. New legislation should guarantee these rights - not guarantee their elimination, as Bill C-61 would have done.

HK

Improper DMCA Takedowns and US Presidential Campaigns

EFF - bless them - is onto the use of improper DMCA takedown notices that stifle free speech in the course of the current US Presidential election campaign. Apparently, major networks are objecting to the use of very short clips incorporated into political speech and appearing on YouTube.

Here's the EFF take.

One of the few silver linings on Bill C-61 was that it included a "Notice and Notice" regime and not a "Notice and Takedown" mechanism, as in the US legislation. So, this kind of stuff would presumably not happen so easily in Canada.

HK

Liberal Position on Bill C-61

According to a Toronto Star report of an interview with Denis Coderre, the Liberal Heritage critic:

The Liberals would also ditch the already-tabled Copyright Bill and bring forward new legislation to protect the rights of both creators and consumers of digitized music, films and other intellectual property, Coderre added.

"We will work inclusively with the stakeholders involved in the copyright issue to protect Canadian content on the Internet, and to expand its use as well."

HK

Conservative Party Platform on Copyright

Today's Conservative Party platform states:

A re-elected Conservative Government led by Stephen Harper will reintroduce federal copyright legislation that strikes the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada's intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use.

We will also introduce tougher laws on counterfeiting and piracy and give our customs and law enforcement services the resources to enforce them. This will protect consumers from phoney and sometimes dangerous products that are passed off as reliable brand-name goods.

(emphasis added)

It's unclear whether a Conservative government would simply "reintroduce" Bill C-61 "as is", or whether it would come up with something that, unlike Bill C-61, actually does strike "the appropriate balance among the rights of musicians, artists, programmers and other creators and brings Canada's intellectual property protection in line with that of other industrialized countries, but also protects consumers who want to access copyright works for their personal use."

That's not a bad mission statement for a new copyright bill - but does not explicitly take into account that fact that the Supreme Court of Canada has confirmed that commercial parties, too, have a right as users to access works for research purposes in a manner consistent with fair dealing.

The reference to "customs and law enforcement services" suggests that the still secret ACTA draft treaty is on the mind of the Conservative Party.

Thus far, the Conservatives and NDP have explicitly referred to copyright in their platform. The Liberal Party has not done so.

HK

No Making Available Right in USA + Statutory Damages Dissed

In a very important decision in the Jammie Thomas case, Judge Michael J. Davis, the Chief Judge of the U. S. District Court for the District of Minnesota has has granted Jammie Thomas a new trial.

He held that he had erred in the notorious jury instruction #15 and that there is no "making available" right in the USA. There must be proof of actual dissemination. The Court ruled that the WIPO treaties are not self executing in the USA and the statute is not ambiguous.

While the potential resonance of this in the USA and Canada is enormous, the immediately interesting aspect is the scathing commentary on the USA statutory damages provisions which resulted in a $222,000 jury award. These comments should be read verbatim by anyone interested in Canada's Bill C-61, because Bill C-61 would make such damages available for a broad range of everyday activity in Canadian households and businesses:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peerto‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 741‐42 (D. Md. 2003) (describing defendants as a “global financial‐services firm” and a corporation that brokers securities).

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

It is worth noting that the RIAA brought in its lead litigator - the renowned Don Verrilli who won the Supreme Court Grokster case - to save this case. This attempt didn't work.

Judge Davis is a brave and learned judge who on his own motion re-opened this case when he sensed that he may have made a "manifest error" in his jury instructions.

Congrats to the intervenors including EFF, Public Knowledge and the professors whose research and advocacy turned this around. However, I doubt that this will be the end of the story.

And one bit of potentially bad news for Ms. Thomas is that Judge Davis did rule that "distribution to an investigator, such as MediaSentry, can constitute unauthorized distribution". That ruling is bound to be controversial.

HK

Ringtones - Supremes to Rule on Leave Application

We shall find out this Thursday, September 18, 2008 shortly after 9:45 AM whether the Supreme Court of Canada (hereinafter “the Supremes”) will hear an appeal concerning the Copyright Board's Ringtones Tariff payable to SOCAN. The main issue is whether the delivery of ringtones by a provider to the customer's telephone or to the customer's computer upon request constitutes a "communication to the public by telecommunication."

While the narrow legal issues are highly technical, the ramifications entail the potential imposition of multiple layers of payment to multiple claimants for multiple rights involving the same activity and transaction. The concept of “double payment” could become “triple” or more. The “making available” right may some into play if the case is heard.

The three dozen or so collectives in Canada and the oversight provided by the Copyright Board are supposed to simplify the legal landscape and reduce transaction costs so that creators can be paid more efficiently for their efforts and avoid market failures. Canada has more collectives and a larger full time Copyright Board with far more full time resources than any other comparable tribunal in any comparable country.

So far, the result has been excellent for a small number of lawyers and consultants but is of questionable benefit overall to most actual creators, who have seen very little if any money from most of this adversarial and litigious activity.

Since various governments have succeeded only in adding to this complex labyrinth, perhaps only a judicial commission can see beyond the box and sort out and simplify this morass. As matters stand, there are too many vested interests that benefit from the current state of uncertainty. Nothing in the last two Bills - the Liberal’s C-60 or the Conservatives Bill C-61, which both died with election calls, would have clarified this situation. In fact, Bill C-61 would have created the possibility of several new tariffs and the inevitable lengthy hearings and judicial review.

If the Supremes hear this case and reverse the result below, there could be a significant domino effect on subsequent Board matters, including the seemingly perpetual SOCAN Tariff 22 hearing, which is now about thirteen years old and far from resolved. In fact, it is also under judicial review. Time for a Tariff 22 Bar Mitzvah? See my comments on the tie in between the Ringtones matter and Tariff 22 here.

I should confess that I was involved in the Ringtones file at an early stage, but my client, a very major American supplier of ringtones with extensive knowledge of the market and issues, decided to withdraw, as have other major parties involved in Copyright Board hearings who might have brought useful evidence and insights to the table.

Inexplicably, the remaining objectors (the Canadian Wireless Telecommunications Association or “CWTA”) decided to concede at the Board hearing that the delivery of the ringtone files music files in response to consumer orders was indeed a “communication by telecommunication.” As the Board put it:

They concede that downloading a ringtone is a
communication by telecommunication but
contend that the communication is not a public
communication, but a private transaction
between a vendor and a purchaser and as such, is
not protected by copyright.

I have blogged about the Board’s decision at length here, here and here.

The CWTA lost its judicial review attempt in the Federal Court of Appeal on January 9, 2008, as reported here.

The FCA apparently gave full consideration to the new argument reversing the CWTA’s previous concession, even though it was raised for the time only at the appellate stage. However, one cannot help but wonder whether a different record from below based upon the “no communication” theory might have helped the CWTA on its judicial review - or even have led to a different result at the Board.

This file has already had a more than the usual twists and turns in the Supreme Court, with both sides attempting to strike out some or all of each another’s affidavit material.

The Supremes have decided half a dozen major copyright cases since 2002. Before that, they heard about one every decade or so. Will they bite again this year? We’ll know soon enough. Here’s the Supremes’ summary of the case.

HK

Bill C-61 - Dead or Undead?

Is Bill C-61 really "dead", now that an election has been called?

Or is it really in the realm of "The Undead"?

Since many believe that this bill was all about a "made worse in Canada" version of the American DMCA, is it fair to ask whether will it become a legislative real life version of that immortal thriller "American Zombie"?



Love it or hate it, Bill C-61 will return, maybe even in a scarier remake. Maybe with a different number? Maybe as the "Son of 61"?

For better or worse. Maybe sooner than you think!

HK

Copyright as an Election Issue?

Gilles Duceppe, the Bloc Québécois leader, met with Prime Minister Harper on August 30. According to the CBC and the Montreal Gazette, copyright law is one of the short list of major issues on which there is disagreement.

According to the Gazette:

Abortion rights, copyright law and the approach to young offenders are also areas where the Bloc and the Conservatives don't see eye to eye, he [Duceppe] said.

The lack of support for Bill C-61 by opposition parties may be one of the reasons why we are about to have an election.

This reinforces the Don Martin story I posted about the other day.

It is not known whether the Bloc's lack of enthusiasm for Bill C-61 is because it goes too far or doesn't go far enough.

HK

Bill C-61 and the [posssible] Election

Don Martin - a columnist who is regarded by many as being very sympathetic to the Conservative Government and well informed on how it operates - has a provocative and not very favourable comment today on the rumoured imminent election.

Among other points, he praises the productivity of this allegedly "dysfunctional" Parliament and then goes on to bemoan the unfinished and important business that would be left on the table if a snap election is called. Guess which item is first on his list?

Of course the sudden demise of the 39th Parliament will leave dozens of important initiatives stillborn, including legislation dealing with copyright protection, food and product safety, youth crime, a national drug strategy and identity theft.

But unfinished business happens whenever a snap election is called.

(emphasis added)

This is a very interesting short list of priorities.

But, then we do live in interesting times.

HK

Made Worse in Canada

"Made in Canada" or "Made Worse in Canada"?

The phrase I coined on June 12, 2008 - the day that Bill C-61 was introduced - seems to be virally growing and is once again being mashed up online - now with a clever video no less.

HK

CLA Advocacy Material on Bill C-61

The CLA has posted some advocacy material on Bill C-61, available here.

Although the suggested letter contains some good points, I'm frankly puzzled by what is meant by the term "Technical Prevention Measures" and what the CLA means by:

New copyright legislation should punish copyright-infringing behaviour, but should prohibit the circumvention of technological prevention measures for legal purposes.

HK

PS - the site now says:

Prohibitions against the circumvention of digital locks should be limited to acts of copyright infringement, but should not prohibit the circumvention of technological prevention measures for legal purposes.

This makes more sense, but I still don't know what is meant by technical "prevention" [sic?] measures.

Another suggestion would be to update the CLA's copyright infromation page
which includes some obsolete and less than useful references, and does not include such useful material as Laura Murray's and Sam Trosow's excellent book, which is the best single source book on copyright for librarians at the present time.

ACTA Secrecy Concerns Increase

On July 28, 2008 Michael Geist reported in the Toronto Star that:

According to documents obtained under the Access to Information Act and reported here for the first time, the government has been crafting an Intellectual Property and Trade Advisory Group. The initial plans for membership in the group were limited exclusively to 12 government departments and 14 industry lobby groups. These include the Canadian Recording Industry Association, the Canadian Motion Picture and Distributors Association, and the Entertainment Software Association of Canada. [CRIA, CMPDA, ESA]

The early membership lists omit several key industry representatives likely to be affected by ACTA, including telecommunications, technology, and Internet companies. Moreover, there is absolutely no representation of the public interest — no privacy representation despite the obvious privacy implications of the treaty (the Office of the Privacy Commissioner of Canada was not included on the government invitee list), no consumer representation despite the effects on consumer interests, and no civil liberties representation on a treaty that could fundamentally alter Canadian civil rights.

CRIA, CMPDA, and ESA are highly influential American dominated lobbyist groups whose influence can be readily seen in Bill C-61.

Today, the highly regarded Intellectual Property Watch summarizes the current state of secret negotiations:

Sources described the closed-door negotiations which continued this week in Washington, DC as “very special", “unique in its secrecy” and the “first time that industry has been kept in the dark about an agreement of such importance.”

There are persistent rumours - based upon a leaked draft text - that ACTA could not only affect what happens at border crossings (laptop and iPod searches and confiscations?), but what is happening inside ISPs and ordinary people's internet accounts and activity, which could be monitored. This secrecy is very troubling. Moreover, Canada's lack of transparency is excessive compared to other countries - e.g. Canada, unlike the USA, hasn't published stakeholder submissions. This is especially troubling.

HK

RIAA v. Almost 30,000 People

Ray Beckerman is a redoubtable and remarkable New York lawyer who has made it his mission to stop the RIAA's mass litigation campaign, which has now victimized almost 30,000 ordinary people, ranging from a 12 year girl living in subsidized housing to a dead grandmother. He has published an excellent article in the ABA's The Judges’ Journal, Volume 47, Number 3, Summer 2008. This is a journal that is read by the American judiciary.

Of relevance to Canada, he points out at the outset that:

The courts of other countries—notably the Netherlands and Canada—are not clogged with these cases for the simple reason that they were quick to recognize the paucity of the RIAA’s evidence and refused to permit the identities of Internet subscribers to be disclosed to the record companies.

It was the leadership of CIPPIC, who I was proud to represent, and the principled opposition mostly by Shaw but also of Telus that led to the successful resistance at the outset to a similar campaign in Canada. Canada was fortunate to have had the PIPEDA privacy legislation in place and and a federal judiciary with the wisdom and the will to dispense justice in the BMG litigation at both the trial level and the appellate level.

One should be very skeptical about Canadian music industry claims that there is no intention to sue ordinary individuals in Canada. There was certainly a major effort by CRIA involving three prominent law firms to do so in 2004 - 2005 and there very likely will be renewed efforts at litigation against individuals for common place activity by CRIA and/or others if Bill C-61 is enacted as it now stands.

P.S. - Ray has posted an epilogue on some key developments since March, when the paper was essentially done.

HK

Purple Fair Use & Fair Dealing, eh?

Should a mother be able to post a 29 sec video of her toddler kid dancing to a Prince song?

The EFF is fighting for her right to do so.

San Jose - On Friday, July 18, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose to protect the free speech and fair use rights of mother who posted a home movie of her son dancing to Prince on YouTube.

EFF represents Stephanie Lenz, who uploaded a 29-second clip of her son dancing in the family kitchen to the Prince song, "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video infringed its copyrights, and had the video yanked from YouTube. Lenz's lawsuit against Universal seeks to hold the company accountable for misrepresenting that her fair use violated its copyrights.

Would this be illegal under Bill C-61?

For sure.

How do I count the ways?

HK

Fair Use for Online Video - eh?

Peter Jaszi and Pat Aufderheide - two brilliant professors in Washington, DC, have just published a guide called Code of Best Practices in Fair Use for Online Video available here.

They had the input of such distinguished profs such as Pam Samuelson in this work.

It talks about what one can and can't do under American law in making online videos, smashups, parodies, etc.

A lot of what they say can be done in the USA won't be possible in Canada if Bill C-61 is enacted as is.

Canada still won't have a parody exception. Freedom of expression is still clearly trumped by copyright law in Canada. Although Canada's Supreme Court has recently signalled in WIC v. Simpson that freedom of expression may be given more scope than we had previously thought in defamation matters, we aren't there yet in copyright law and Bill C-61 may go a long way to shutting off that possibility.

So, read Peter and Pat's lucid and clear guide - and weep for what we don't have in Canada.

HK

Champlain & Jefferson

There's a very lovely op-ed in today's NTimes by one Prof. David Hackett Fischer comparing Champlain and Jefferson - based on the proximity of July 3 (Quebec's 4ooth anniversary) to July 4 - the anniversary of the American Declaration of Independence.

The piece is about two great men with great ideas who were way ahead of their time.

Jefferson, of course, is a hero to most IP scholars for his famous passage:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation....

So - all of this is to say that there is much that is wonderful about the USA, especially its great instinct to defend freedom of speech and the pursuit of excellence.

There is even much that is good about its copyright law. Let's hope that Canada can find the good aspects of American copyright law and work them into our own law.

And in case anyone is wondering, no - I have not been invited to Ambassador Wilkins' 4th of July garden party.

Happy Anniversary to the City of Quebec and to the USA!

HK

Locks, Levies and Litigation - My First Take on Bill C-61

OK.

Better late than never, I hope.

Here's my Power Point presentation (with a couple of updates arising from discussion) based upon my presentation at the University of Ottawa on June 18, 2008.

Lots to think about.

HK

Prof. D'Agostino on Bill C-61

Prof. Giuseppina D'Agostino has an interesting op-ed in yesterday’s Toronto Star on Bill C-61.

I won't comment on it detail but a few of her key points are very problematic:

She says:

The government wants to curb infringement but is not serious in allowing owners to go after teenagers when it caps civil lawsuits at $500. If it wanted to put kids in jail, it would have created harsher penalties. Widespread commercial infringement seems like the more pressing concern.

I'm not sure what she meant by "not serious" but I hope she didn't mean that there should be no cap on statutory damages against individuals for "private purposes." While the Government may not intend to put teenagers in jail, a key point of the legislation, which was driven by CRIA, is to facilitate weapons of mass litigation in Canada to stop what CRIA considers to be "illegal" file sharing.

In any event, the real point is that the so-called "cap" of $500 is either poorly drafted or disingenuous - because it won't work as a "cap" as drafted. Even more importantly, the record industry in particular will likely sue for "uploading" - or "making available". This is not subject to the $500 cap. She doesn’t mention this. It’s subject to cap of $20,000 for each element of each "made available" song, and each song typically includes three copyrighted elements - the music, the performers’ performance and the sound recording itself. Do the arithmetic. It’s simple but gruesome. Potential liability for up to $60,000 for each song in a shared folder, and the music industry will argue that it need not prove that there was ever any actual distribution.

She also says:

... there are no statutory damages for bypassing locks for private use: so, in reality, you should be fine in bypassing the lock of that European DVD or cellphone. But this uncertainty could have been avoided. Canadian-made regulations will be essential.

That's wrong. There is an exception for statutory damages for an individual for bypassing a TPM for “private purposes” - but that’s only for the act of circumvention itself. (new s. 41(3)). That exception is effectively vitiated in the case of “infringements that were made possible because the defendant circumvented or caused to be circumvented..."(new s. 38.1.4)

This could very well mean that circumventing a regional code to view a European DVD results in statutory damages up to $20,000 - because at the very least, it must be "reproduced" in RAM in order to be viewed. Or, more to the point, copying the TPM protected DVD to an iPod or laptop would create exposure to statutory damages up to $20,000. Likewise, for ripping a protected CD onto an iPod. Or, for getting someone to unlock your cell phone (so you can buy a more advantageous SIM card and not get gouged for several dollars a minute by Canada's oligopolistic wireless services once you leave Canada) could lead to the same result because you “caused to be circumvented...”

As for regulations, one could wait an eternity. The faint hope of a future regulation does not solve a present policy error.

And I totally disagree with her when she suggests that the Bill “promotes distance learning, licensing of digital course packs and uses of online materials all within complicated limits that will be tested by evolving practices.” She right about the “complicated” part, but the Bill is a huge setback to the educational community, certain sectors of which unaccountably can’t figure this out. Fortunately, other sectors have seen through this. As has Prof. Laura Murray. More on this to follow. Rest assured.

She does make some good points in her analysis, but misses one of the real dangers of this bill, if passed. If it's passed, we can expect lots of litigation for enormous amounts of money in the same mode as the RIAA in the USA.

If weapons of mass litigation are to be handed over to the content industries - particularly the music industry - one must assume that they will not only be used but that they will be misused and abused. There are tens of thousands of families in the USA who know this only too well.

She also doesn't begin to deal critically with why the Government should defer to content owner demands to let TPM and contract vitiate fair dealing, the public domain and users' implied rights with respect to their content and devices that they have bought and paid for.

HK

Ivor Tossell on Bill C-61

Here's an excellent article with a link to a great online voice story by Ivor Tossell at the Globe and Mail.

Here's the biting podcast.

His voice link mentions Michael's, Laura's and my blogs and quite correctly indicates that we are far from being "anti-copyright zealots" and that we not "partisans" ...in fact we are "great proponents of copyright"...

We just want to see a system that works for everyone, and not just the American Government and a few content industry trade associations....

He believes that a big problem will be that the Government is over-regulating what people can do with what they have bought and paid for.

He says that "the future of the legislation doesn't look bright"

He is right.

HK

Unmaking of the "making available" right

Ten law professors have filed a brief in the American Thomas case supporting the argument that there is no "making available" right as such in the USA. In other words, without proof of actual downloading by someone other than the RIAA investigators, there should be no liability. Ms. Thomas was the single mother of two who has to pay $222,000 for downloading and "making available" nine songs, worth $9.91 on iTunes.

There is nothing in Bill C-61 to prevent such a travesty of justice in Canada. In fact, Bill C-61 could make the RIAA/CRIA dream of suing children and dead grandmothers even clearer and more viable in Canada than in the USA.

Full credit to the professors who took the time to do this. They are Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia.

And full credit to the trial judge for taking it upon himself to consider whether he had made a "manifest error" in his jury charge that it was unnecessary to prove actual distribution to a third party. Unfortunately, for whatever reason, Ms. Thomas' trial lawyer apparently did not deal with this issue at trial.

If the liability for "making available" falls through in the USA, it would be even more absurd for Canada to adopt the principle as set forth in Bill C-61. And make no mistake. There would be law suits in Canada - lots of them. The music industry can't wait to get going. They failed and fizzled four years ago - and I'm proud to have represented CIPPIC and to have played a key role in making that failure happen.

But Bill C-61 could be CRIA's sweet revenge.

Let us hope that the RIAA/CRIA approach to copyright law as expressed so clearly in Bill C-61 is clearly stopped at the Canadian/American border. Let Canada's children sleep well at night and let Canada's dead grandmothers rest in peace.

HK