Wire Report on the Music Canada (CRIA) "challenge of the scope of the Supreme Court's CCH precedent"

The Wire Report has a story (no paywall)  on the Music Canada (CRIA) factum in the forthcoming SOCAN “previews” case in the Supreme Court of Canada (“SCC”)  and how its  “arguments amount to a challenge of the scope of the Supreme Court's CCH precedent” and how, in turn,  it may affect the current post-secondary tariff proceeding in at the Copyright Board, where AUCC is the lead objector. The article points out that “Music Canada and the AUCC are both represented by the same lawyer, Glen Bloom, of Osler, Hoskin & Harcourt LLP.”

The article quotes Sam Trosow and Ariel Katz on the CRIA factum:

“CRIA is asking the court to significantly scale back the scope of fair dealing,” Sam Trosow, associate professor at the University of Western Ontario’s Faculty of Law and Faculty of Information and Media Studies, wrote on his blog late last month.

“What they propose is a general framework for exceptions,” Ariel Katz, a law professor at the University of Toronto, added in an interview.

“It’s broader than research. It applies to private study, review and all the other exceptions.”

I was asked by the Wire Report what would be the fallout be from a narrower fair dealing framework if Music Canada (CRIA) succeeds on the arguments in its SCC factum. I am quoted as saying:

“There could be much higher costs in the educational system—potentially tens of millions per year—and much less access to essential information in Canadian schools, colleges and universities than other competitive countries such as the U.S.A. enjoy.”

“It would be a self-inflicted serious wound for Canada—nothing less.”

It’s fair to say that fair dealing will be the main substantive issue in two forthcoming SCC cases - the SOCAN “previews” case mentioned above and the CMEC K-12 case, which will be heard on December 6 and 7, this year respectively. Fair dealing will also likely be the main issue in the current Copyright Board post-secondary case. The SCC will likely rule on these fair dealing cases by June or July of next year, based upon its normally very timely and extremely efficient record in rendering judgments.

The Copyright Board post-secondary case won’t likely be heard for a long time after that. Interestingly, the Copyright Board case involving Provincial and Territorial Governments Tariffs is scheduled to start October 2, 2012. That case, too,  could also be profoundly affected by the SCC’s judgments - since it would seem logical to assume that a lot of the copying going on inside provincial governments would qualify as “research” in light of the CCH decision.  One would assume that, in both of these pending Board cases, the evidence being collected and the arguments being framed will be suitable to fully assist and inform the Copyright Board with respect to any conceivable rulings of the SCC on fair dealing.

And then there’s that little question of what Parliament might do in the meantime...particularly with respect to “education”.


HK

The ABC Copyright Conference - Access Copyright, Fair Dealing, the Interim Tariff, and Beyond

fThe University of Northern British Columbia (“UNBC”) hosted an excellent two day  conference on June 23 and 24, 2011  of the “ABC” copyright group (Alberta + BC), an informal coalition which comprises various professionals in post secondary institutions  whose jobs involve advising on copyright issues. I was honoured to be the keynote speaker.  An audio recording of my talk will be posted in due course.

Virtually all of the conference was devoted to Access Copyright (“AC”), and its currently  pending post secondary tariff at the Copyright Board that would impose a 1,300% increase over the current basic rate for the licensing of rights that don’t even exist in some instances under the Copyright Act, such as linking and displaying.

I am  glad that I was able to stay for the whole two days. It was informative - though rather sad - to hear from so many copyright professionals how difficult things have become for them in universities and colleges. Prof. Sam Trosow was also there and very active and constructive throughout. The following are some views that were presented and discussed by various participants both on the faculty and in the audience:

•    There is an unsatisfied need for more knowledge and information in the post secondary community about copyright generally and AC and the proposed post secondary tariff and the interim tariff in particular.
•    The AUCC/ACCC suggested fair dealing guidelines are seen by many as being unnecessarily far too conservative, restrictive and even harmful to faculty and students. There is concern that these guidelines, whatever the strategy behind them may have been, could seriously backfire at the Copyright Board and in the Courts by setting new, unnecessarily and unrealistically low and arbitrary thresholds that don’t reflect  actual post CCH norms and practices or any established legal basis, thereby rendering any uses outside of their narrow confines potentially compensable and/or even infringing. The CAUT guidelines are seen as only somewhat better, if only because they are phrased more positively rather than negatively - but reflect similar arbitrary percentage based premises. Here are the AUCC guidelines, and the virtually identical ACCC version.   
•    Many institutions may not adopt these guidelines.
•    Many institutions have not adopted the interim  tariff or will opt out as soon as they can this August.
•    There is a pervasive, unnecessary and frequently excessive concern with risk aversion - invariably based upon lack of information and even misinformation. The fact is that AC has never actually sued any person or institution in the academic community for anything. Moreover, it simply lacks any legal standing to do so on its own. Its test case litigation efforts have all failed - most notably CCH v. LSUC in the Supreme Court of Canada and the Laurier Office Mart case, in both of which it played a significant role. The more recent Staples/Business Depot case was launched with much fanfare, but soon afterwards was quietly dismissed on consent without costs. When the suit was started in 2007, it was described by the Toronto Star as “claiming $10 million in damages over unauthorized photocopying by store customers. The publishing organization said today that its lawsuit contains the largest claim to arise from copyright infringement of published works in Canada.”
•    Even if there were to be litigation - which can’t come from AC directly and would have to come from the copyright owner (i.e. the publisher and/or author) - a Court has the power and discretion to reduce statutory minimum damage awards to whatever amount it “considers just” - presumably down to nominal or even zero - where “there is more than one work or other subject-matter in a single medium”. Moreover, the refusal to issue a transactional license in situations where such licenses have been routinely issued for years could arguably result in any otherwise available remedies being denied.   
•    The near paranoia in some cases is not just coming from AC. It is coming, whether unintentionally or not, from AUCC and ACCC, for example via their suggested guidelines. An example of how such guidelines can be implemented in a manner that could predictably put an unnecessary chill into the minds of reasonable people can be found here in the Academic Policies and Guidelines of a prominent Canadian college updated March 30, 2011 which states:

        Faculty who see students using infringing copies of copyright protected works in class should advise students that:
        a) [s]he should not have made the copy,
        b) [s]he should refrain from making any future copies,
        c) materials protected by copyright cannot be copied unless permission has been obtained, and
        d) [s]he should purchase the book in future.
        Similarly, staff observing students making infringing copies of copyright protected works on public access photocopiers should similarly draw these facts to the attention of the student.
(Emphasis added)

•    If two panels of the Federal Court of Appeal ruling within weeks of each other in 2010 can reach apparently inconsistent conclusions on fair dealing, how is a community college teacher, no matter how well intentioned, supposed to judge on the spot what is “infringing”?  More to the point, since when is that part of his or her job? It goes without saying that item (c), if read literally,  is simply inaccurate because it disregards the doctrines of substantiality and fair dealing. Moreover, is a student required to buy every book he or she needs to copy from to undertake legitimate research and private study?   Obviously not.
•    This risk aversion is clearly having negative consequences. For example, there was a question about whether it is legal to put an actual book (not a copy of it or any part of it) on reserve when that book is  required reading. The answer, of course, is that it is perfectly legal. However, this is actually not such a surprising question, given the Copyright Board’s CMEC K-12 decision, and the current climate and interim tariff relating to AC’s pending post secondary tariff. However, it is disconcerting that a question such as this should even need to be asked on a Canadian campus. One wonders what users’ rights are being denied to faculty and students due to such misunderstandings on such basic points.
•    Moreover, some wondered to what extent they should monitor and police whether students are making photocopies of required reading material on reserve or keep an eye on other student copying activities. The view was voiced that university and college faculty and staff should not become “copyright cops”.
•    There was insufficient awareness that the Supreme Court of Canada has said quite clearly that an institution with an appropriate copyright policy in place is entitled to presume that its facilities will be used legally and is not required to prove that every person in every instance always refrained from  infringement. Arguably, too much control and supervision could make an institution more rather than less liable.
•    The Copyright Board’s K-12 decision as upheld by the Federal Court of Appeal was seen as unfortunate and there is considerable hope that it will be reversed in the Supreme Court of Canada. While this decision could be very harmful to the post-secondary educational sector if not reversed, it is arguable that its holdings about prescribed reading and multiple copies need not apply literally in the post secondary realm where the factual circumstances involving fair dealing are quite different overall and vary widely in different situations. This is especially so with respect to any attempt to impose any arbitrary distinction between required and supplementary reading material and any arbitrary exclusion of any multiple copies.
•    The interrogatory process in the current hearing has been incredibly onerous and there is consternation that the considerable efforts of most institutions have turned out to be unnecessary, since the Board recently ruled that “The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access.” The way things work at the Board, that would presumably have meant a representative sample of small, medium and large institutions. Ironically, it seems that most if not all members of AUCC and ACCC  first learned about this ruling here on this blog over a month ago on June 8, 2011.
•    The institutions still didn’t know how this ruling will impact on the need to do the considerable unfinished interrogatory work over the summer.
•    Those many institutions not relying on the interim tariff trust that the normal practice of providing of transactional licenses will be promptly restored.
•    There is considerable frustration by AC’s inability and/or unwillingness to adequately identify its repertoire and the Board’s apparent tolerance to date for this position - which has direct and daily implications for those who conscientiously try to secure necessary rights on a transactional basis, even when such licenses are available - which is allegedly generally not the case at present.
•    There was widespread belief that any tariff that is finally imposed by the Board must clearly allow an institution to operate outside of any tariff if it so chooses, because it should have other options for clearing the repertoire that it actually needs outside of a prohibitively expensive and restrictive blanket license.

My own observations:

It was apparent that many in the post secondary community want simple answers and bright lines. This is understandable. However, fair dealing by definition does not admit of such certainty.

The purpose of copyright law is not to prevent the normal operations of universities and colleges but rather to encourage such activity. The outer limits of fair dealing need to explored in good faith and courageously for the sake of Canada’ academic community; they should not be gratuitously conceded in an unnecessarily restrictive manner as a result of highly exaggerated and often unfounded concerns about risk aversion.

The duty of post secondary institutions is to serve the needs of their students and faculty. The Supreme Court of Canada has given this community a “large and liberal” conceptions of “users’ rights”. This should not be undone by AC or others who take positions that cut back on what the Supreme Court has said.

All in all, this as a very well organized conference with a very enthusiastic crowd of professionals who really want to respect both owners’ and users’ copyright rights. Contrary to AC’s overstated submissions at the Parliamentary hearings and elsewhere, all of these people and their institutions are quite happy to pay authors and copyright owners whatever amount is fair and reasonable.  However, they do not wish to pay too much and to pay too often for too little - and especially don’t want to pay for repertoire or rights that AC doesn’t have or don’t even exist - such as posting a link or displaying a work on a computer screen.

The enormous cost inflicted on the system by AC is reflected not only in tariffs that could soon exceed $80 million a year in the educational sector but in the enormous number of skilled people in these institutions whose jobs it is to provide answers that may be unknowable to faculty and administrators who are often misinformed in their belief that there is serious risk involved in normal activity and that there are bright line answers in all cases. The enormous direct and indirect costs of catering to AC could be better be used to provide more rather than less access to books, licenses, etc. and to hire more professors and staff to better serve the post secondary community.

There was growing interest and concern that AUCC and ACCC are taking positions, e.g. with their suggested fair dealing guidelines, that seem to be more favourable to AC than to the educational community.

Subsequent Developments:
   
The concern about how the AUCC/ACCC  guidelines, etc. could be harmful was nothing if not ironic in retrospect, given Prof. Trosow’s subsequent post on his blog after the conference. He points out that CRIA, the trade association that represents the world’s four largest record companies, is arguing in one of the forthcoming Supreme Court hearings for a very restrictive interpretation of fair dealing that could have “a profound impact on the direction and outcome of the Access Copyright Tariff proceedings” and that CRIA’s argument in the Supreme Court case is being made by the same counsel, namely Glen Bloom, who is currently representing AUCC in the Copyright Board post secondary tariff proceedings.
   
Michael Geist provides more detail on how CRIA’s position is an attack not only on fair dealing but the CCH case itself. Indeed, Michael states:

    CRIA proceeds to use its test ("if the framework for the construction of exceptions developed above is applied") on several occasions in the factum, displaying remarkable hubris of telling the Supreme Court of Canada that it is wrong and its manufactured test for fair dealing is right. CRIA's legal arguments are weak - they rely almost entirely on non-Canadian law since Canadian law clearly does not support its position - but in doing so, it is taking aim at fair dealing in an effort to revert back to a time when there was little pretense of trying to strike a balance in Canadian copyright law.
    (Emphasis added)

Indeed, it’s very hard to see how CRIA’s argument against fair dealing could succeed in the Supreme Court of Canada without seriously harming the universities’ position in the current Copyright Board proceeding.

Some Concluding Thoughts:       

Canada is completely out of step with the USA in most respects on these issues. I’m told reliably that American profs visiting in Canada can’t believe what they see on our campuses. They simply don’t need to think this way in the USA and they enjoy far greater academic freedom and access to educational material at far less cost than in Canada.

Above all, there is very little benefit in all this enormous expenditure of time, resources and money for actual authors, who all the fuss is presumably about.

Many, if not most, of the authors who do a get a cheque from AC will receive much less per year from AC than any of the lawyers working on these matters either for or against AC bill per hour. The legal bills for the post secondary tariff will presumably be several millions dollars this year alone. For a very large proportion of AC writer members, actual royalty receipts have fallen by 50% or more in the last year. A reliable attendee at AC’s recent AGM indicates that the median writer’s payment for last year was only $267.72 and the average royalty for AC authors was $438.36. Even the latter number is a fraction of the average hourly rate of the lawyers who are working on the current AC Copyright Board cases.

For 2011, AC has budgeted $2.2 million for “Copyright Board applications”, $1.3 for “professional fees”, and $6.3 million for “general and administrative” expenses. Expected licensing revenue is $27.2 million.

Whoever all of this is benefiting, it is certainly not the academic community or the cause of research, education and innovation in Canada.          

HK

Possible Impact of Supreme Court Arguments in SOCAN Previews Case on Access Copyright Post Secondary Copyright Board Tariff Application

Prof. Sam Trosow, who is an expert in both copyright law and library science, is closely following all the current litigation and the Copyright Board hearing  impacting on fair dealing and education.

He points out in his blog from June 29, 2011 how the SOCAN “previews” case now unfolding in the Supreme Court of Canada could impact upon the post secondary tariff proceedings brought by Access Copyright now pending before the Copyright Board.

He points out that the positions being taken by CMRRA-SODRAC (“CSI”) and CRIA  in the Supreme Court are supportive of SOCAN on fair dealing. These parties are respondents in SOCAN’s appeal.

Prof. Trosow also states in his blog from yesterday that:

"What is raising more than a few eyebrows however is the fact that CRIA is now being represented by Glen Bloom (of Osler, Hoskin & Harcourt LLP) who substituted into the case for CRIA on May 31^st. Mr. Bloom, who also represented the plaintiffs in the CCH v LSUC litigation, is currently representing the Association of Universities and Colleges of Canada (AUCC), the lead objector in the tariff proceedings brought by Access Copyright now pending before the Copyright Board.

Without doubt, the breadth and scope of fair dealing will be a central dispute in that proceeding and will be a determinative factor in the amount of the tariff ultimately set by the Board.  Should the attempt by SOCAN, CRIA and CSI to limit the applicability of fair dealing be successful, there will be a profound impact on the direction and outcome of the Access Copyright Tariff proceedings"

 HK

Pandora - you can't get there from here.

Pandora is an apparently terrific "legal" music service that we can't get in Canada - an all too familiar theme. For example, try this link to Pandora from inside Canada. You just can't get there from here.

Here's a CBC report on why Pandora thinks that Canadian royalty rates are too high to do business here. Not surprising - considering the multiplicity of tariffs and the Copyright Board's steadfast position of valuing each right separately, even though this may result in several substantial tariffs on the same transaction and an overall excessive rate.

Naturally, defending the Canadian position, are the heads of CRIA and Re:Sound. Is pricing yourself out of the market a good strategy? Self-inflicted wounds are not uncommon in the entertainment business - after all, the motion picture folks tried their best to ban the VCR. And the music industry came up with the not so brilliant idea of suing their most enthusiastic customers.

But excessive royalties that drive away legitimate services and drive users underground are bad for consumers and bad for musicians.

Time once again for Economics 100 and the lessons about price elasticity of demand?

HK

The iPod "Tax": Misinformation re Heritage Committee's Report

It seems necessary to dispel certain inaccurate and misleading blog commentary about what actually happened in the Heritage Committee yesterday concerning the NDP's proposed iPod “tax”.

It is simply not correct to state, as James Gannon puts it in his blog, that:

To be clear, the MPs who voted in favour of this motion were not voting “for”, or signalling any kind of “support” for, this amendment to the Copyright Act, but merely voting for the Committee to consider the amendment at a later time.

That's not what happened. Here is what actually happened - according to the official source, which is Parliament itself. This, according to the Committee's official website, is what the Heritage Committee actually said:

Pursuant to Standing Order 108(2), that the Committee report the following to the House as soon as possible:

That the Committee recommends that the government amend Part VIII of the Copyright Act so that the definition of “audio recording medium” extends to devices with internal memory, so that the levy on copying music will apply to digital music recorders as well, thereby entitling music creators to some compensation for the copies made of their work.
(emphasis added)

That seems pretty clear to me and quite clearly contradicts Mr. Gannon's speculation. Here are the minutes of the meeting, which back up the Report.

The rest of Mr. Gannon's blog is largely a polemic against Prof. Michael Geist for "an over-politicization of the actual facts" and other various allegations.

However, all that Prof. Geist did in his blog was to describe succinctly and accurately what happened in the Committee, and the party affiliation of the members involved, along with the position of the two responsible Ministers of the Crown. That is essential information for anyone who tracks legislation. How exactly the provision of such information is "politicization" is quite incomprehensible.

Ironically, Mr. Gannon's blog is entitled “Depoliticizing the iPod levy”. Even more ironically, his concluding paragraph begins with this otherwise agreeable sentiment:

As the experience with "Fox News" in the U.S. has shown, by highly politicizing debated issues, the public will often be swayed into a narrative with "good guys" on one side of the political spectrum and "bad guys" on the other.

It strikes me that Mr. Gannon is the one who is being rather too political in this instance.

Mr. Gannon, who was called to the bar in 2009, is an associate at McCarthy, Tétrault, working under Barry Sookman, a well known lawyer/lobbyist for some very politically savvy clients, i.e. CRIA, CMPDA, and the Canadian Chamber of Commerce. While Mr. Gannon may very well have been speaking on his own, Mr. Sookman was very quick to tweet a link to his blog.

HK

March 18, 2010

PS - Speaking of "politicization" of copyright, here' s Mr. Sookman's latest blog entitled "Should Canada adopt “fair use” as proposed by NDP MP Charlie Angus?" wherein he says:

The fundamental role of copyright in Canada will not be lost on the Bloc and Liberals with strong roots in the Province of Quebec, or on the Tories with strong ambitions in that province.

(emphasis added)

I wonder how Mr. Gannon would characterize this analysis.

PS #2:

Mr. Gannon has now issued a "correction" to his post from yesterday.

Another Attempt at an “iPod Tax”?

David Basskin, a director of the CPCC, and I, in my personal capacity, debated here on BNN at 5:20 PM today the CPCC's proposed "iPod tax", as it is commonly called and as BNN labelled the segment. As the BNN folks pointed out, it would apply to cell phones and other digital devices that store music.

I made several points - but these are the big ones.

1. This would be seen as a "tax" and a bail out of a dying collective.
2. It would create a huge grey market problem, since these products are so readily available through cross border visits and online. There is and will be no such levy in the USA.
   
3. It would greatly hinder if not prevent WIPO ratification because the national treatment provisions in the WPPT treaty would double whatever amount the levy would otherwise be - and no Minister would want to take responsibility for shipping potentially hundreds of millions of Canadian "tax" - oops - I should say "levy" - dollars out of Canada for no good reason.
   
4. The Canadian Recording Industry Assocation ("CRIA") has fought against an iPod levy in the Federal Court of Appeal because it would effectively allow for virtually unlimited legalized downloading. CRIA's President, Graham Henderson, is also on record as encouraging format shifting from purchased CDs to iPod type devices. In fact, Graham said in a speech in 2005 that "The idea that virtually everything that is on iPods is stolen is not true. Music fans, like me, in enormous numbers, are converting their CD libraries into a digital library."
5. There is little evidence of any thought or an evidentiary basis for this. In fact, when the CPCC first tried this iPod levy on for size in 2002, it asked for $21 per gigabyte - which would mean that a 120 gig iPod Classic that now sells for less than $300 would have a $2,520 levy on it, if the CPCC had gotten its wish.
6. The levy concept is an obsolete continental European socialist collectivist analog thing that has been rejected in the USA, UK and Australian and other like minded countries.

All in all, not a great idea. Indeed, I would guess that it's a non-starter.

HK

PS:

PS - this is getting picked up here and here.

The Tenenbaum Case: A Court Room is Not a Class Room

A while back, I suggested that:

If Joel somehow wins, the RIAA has a big problem.

If there is a judgment of tens of thousands of dollars against Joel, then Joel has a big problem.

If there is a judgment of hundreds of thousands against Joel, then both he and the RIAA have a big problem.

If there is a judgment of millions against Joel, it's mostly the RIAA's problem.

(emphasis added)

Ben Sheffner, who has covered this trial really well despite his admitted sympathy for the RIAA’s position, agreed with me.

A jury in the Federal Court in Boston on July 31, 2009 found Joel Tenenbaum liable for $675,000 for willfully downloading and distributing 30 songs. That’s $22,500 for each song. That's my third bullet.

According to Ben Sheffner's, Joel has said if that $675,000 stands, he will be filing for bankruptcy.

I wonder whether anyone on the Harvard Joel Fights Back team has told Joel that bankruptcy may not discharge a debt for "willful" infringement under US law.

I wonder what other advice Joel was given by the legal team led by Prof. Charles (“Billion Dollar Charlie”) Nesson, the famous evidence and cyberlaw professor at Harvard Law School(“HLS”) and the enthusiastic Berkman Center law students and some veteran Boston practitioners.

There are going to be a lot of questions as to why Joel didn't settle at the outset for a few thousand dollars, and whether he was later well served by the controversial strategy and behaviour of Prof. Nesson. What convinced Joel to take such an enormous risk?

It's not clear from all the tweet and blog reports that there was much if any evidence led by Nesson or elicited on cross examination that could have helped Joel with respect to such obvious issues as:

• A fair use defense, however unlikely it would have been to succeed. In fact, the defense was thrown out by the Judge before the trial because of a complete lack of evidence that might have somehow supported it. Prof. Oberholzer-Gee, also at Harvard, was the obvious expert witness who might have helped Joel on this front. His study is or ought to be known to everyone familiar with the P2P debate. If fair use was the Hail Mary pass that Prof. Nesson was counting on, he was told by Lessig, Fisher, Seltzer etc. etc. that it was a loser of an argument. Nesson notoriously published many of the emails from his colleagues confirming that the argument was hopeless. Although he persisted with it, he marshalled no relevant evidence in the Judge’s mind even to give it a chance of getting heard. Apparently, no attempt was made to use Oberholzer-Gee until about a week before the trial, which was least three months too late. If Oberholzer-Gee was not available, there were others (i.e. Andersen/Frenz 2008) who could have countered Stan Liebowitz - the able economist and very experienced expert witness called by the RIAA.

• A constitutional argument about statutory minimum damages that range from $750 to $150,000 per work for much less than a dollar’s worth of actual damage. Again, Oberholzer-Gee might also have been useful here to argue that P2P sharing does no overall harm to the music industry; and,

• Whether there was any actual distribution of each of the songs to anyone other than the Media Sentry investigator.

Instead, Nesson made great efforts to call his son-in-law, Wayne Marshall, an ethnomusicologist, to give expert testimony about the cultural aspects of how and why music is “shared” and John Palfrey about “digital natives.” The Court correctly and predictably concluded that none of this was relevant.

Nesson opened Joel’s case with a lecture about the Necker cube and how things can be ambiguous and not as they seem. He also crushed some styrofoam, to show how albums have become “bits.” This is probably very entertaining in a class room.

Morever, Nesson disobeyed the Judge’s orders about recording depositions, phone calls, etc. There are show cause proceedings pending that could result in sanctions against him and/or his hapless client. Hopefully, Joel at least will be spared this last further misery.

Nesson asked the jurors if they would mind if he wore a turtleneck to court, and presumably did so. In Canada, lawyers wear robes at trials. I must say that this a one tradition worth keeping, for obvious reasons. (Especially as one who still has a full head of mostly black hair, I am glad that we at least don’t have wigs in Canada).

Nesson apparently didn’t realize until just before trial that Joel was on the hook for 30 songs and not just seven. He admitted that he “missed” that point. At what turned out to be $22,500 per song, it’s a significant point.

At the conclusion of the Defendant’s very short case, Nesson reportedly used his son-in-law to provide a computer demonstration about how to buy a song on Amazon, though the purpose of this seems quite unclear.

Reportedly, throughout the trial, Nesson drew many rebukes from the Judge and some objections were even anticipated and sustained by the Judge before they were made.

Finally, in closing arguments, Nesson reportedly made a blatant and apparently improper attempt at jury nullification, which was stopped by the Judge.

Above all, Nesson seemed obsessed with getting this trial webcast and went so far as to file one or two hopeless petitions in the US Supreme Court (it’s a bit confusing, since one didn’t actually get filed) to stay the trial pending resolution of this issue. Given the way things turned out, it’s probably just as well that nobody got to see this week of failure for Joel and the clearly shattered defense strategy that depended entirely on a far fetched theory of fair use, Necker cubes, and crumbled styrofoam.

Not having taught at Harvard, I’m perhaps not qualified to give Prof. Nesson a lesson. But, as any practising lawyer knows, a court room is not a class room.

Given the litany of problems in the defense of Tenenbaum, the result is hardly a surprise. However, given the stature of Prof. Nesson, HLS, and the Berkman Center, the nature of the defense was very surprising. Nor is it surprising that HLS has been apparently been taking actions that might suggest that it is trying hard to distance itself from this as the outcome was becoming apparent.

The award of $22,500 for each of 30 songs is interesting. The amount of $22,500 happens to be precisely the amount that the minimum of $750 per song times 30 songs would yield. Is it just possible that the jury screwed up in filling out the form and meant to award a total of $22,500, the minimum possible amount given the directed verdict on liability? Not likely - but some are wondering. It’s an odd coincidence. Ben Sheffner claims that this is not possible.

The award of $675,000 is a high enough award to make the RIAA look bad, especially if it actually tries to enforce it. Nonetheless, the award it is in a range that is conceivably enforceable, even it leaves 25 year old Tenenbaum financially crippled for decades and even the rest of his life. But it may not be sufficiently large and the apparently sparse evidentiary record left by Nesson on the constitutional issue may not be sufficiently adequate to sustain a finding of unconstitutionality of the statutory damage provisions or to attract the attention of the US Supreme Court on a constitutional basis.

This is a very sad moment for Joel, his family and those doubtless bright and idealistic students at HLS’s famed Berkman Center who tried to help him. This was not a good day for HLS, to put it mildly. Even if HLS has no legal responsibility to make Joel whole, HLS’s good name is going to be attached to this trial in the public perception. A lot of lawyers and academics too have been quite concerned about how Joel’s defense was handled - most notably Ray Beckerman.

As for Prof. Nesson, he would be consistent with his previous strategy of being “open”, if he would now explain just what his strategy was and what he thinks can now be done to make Joel whole.

In fairness to Nesson, it must be said that it’s not clear that this was ever a winnable case under American law. But that said, why then go to trial and take such a obvious risk of hundreds of thousands or more against long odds to save a few thousand? The only realistic hope was and remains a finding that the statutory minimum damage provisions are unconstitutional. But that’s also a real gamble and the odds were and remain heavily against Joel. Even that argument requires a sufficient record of evidence - which may or may not be there. Nesson, who is reportedly a brilliant poker afficionado, and who advocates its use in teaching law (here he is on Colbert) played out the cards here. But is was his client, Joel, who lost. Big time.

No doubt there will be an appeal. Perhaps there will be a new trial, if only because the Judge ruled that Joel’s admission of liability had to result in a directed verdict on that issue. Arguably, Joel could admit to downloading but not to liability, which is a legal conclusion. Frankly, however, it doesn’t look as if this jury would have spared Joel on liability even if they were given that issue to decide.

Ironically, at the end of the day, Joel might have been better off with the maximum $4.5 million award. Such an maxed out award might have been useful in helping to get the attention of the US Supreme Court.

The fear is that this case will be remembered for the fact that a typical middle class college kid, one of many millions, who loved popular music and downloaded and (supposedly) shared hundreds of songs and who had one of the most famous law professor/lawyers in the USA, a veteran Boston law firm, and a team of brilliant Harvard students behind him still couldn’t beat the RIAA.

This may discourage others with better cases, better strategies and more pragmatic counsel from pursuing winnable cases and making a lack of distriubtion, constitutional and maybe even conceivably a fair use argument based upon a solid record.

The lesson for Canada is to get rid of these dreadful draconian statutory damages that can and will be used against ordinary individuals for ordinary activity. Such laws and the way they are exploited by the RIAA and were attempted be exploited by CRIA in Canada do not promote respect for copyright. They do exactly the opposite.

The result from the Tenenbaum trial is that that everyone lost.

HK

PS - August 23, 2009 - I've posted my response to Prof. Nesson's comment below here.

The SAC Double Negative Option Celestial Jukebox

Eddie Schwartz/bluepower.com

The quest for a viable "Alternative Compensation System" to deal with perceived problems involving P2P downloading and file sharing lives on.

The Songwriters Association of Canada (“SAC”), led by Eddie Schwartz, was in Ottawa on the Hill on June 3, 2009 and at the University of Ottawa, in an event organized by CIPPIC. Too bad there weren’t more people there because it was very revealing - though frankly not very convincing.

Here is the latest version of SAC’s proposal.

On the plus side, the SAC is to be complimented for daring to think outside the box. Unlike the power brokers in the music industry establishment, they don’t want to kill file sharing technology and they don’t want to sue their fans. They say that they really like P2P technology. And their fans. That much is good, but after that there are some probably fatal devilish details to consider.

The essence of the SAC’s proposal is that it's a negative option for both consumers and rights owners. For $5 a month, every Canadian household that doesn't opt out of the scheme (and "sign and undertaking to pay a predetermined amount of damages if they are caught file sharing") would get the right to download and share all the music authorized by the rights holders that choose not to opt out.

Here is the essential wording of the SAC proposal:

7. While at least 70% of Canadians regularly use the Internet to file share music, and 90% of them use it occasionally, naturally not all Canadian Internet users use the Internet for that purpose. We propose that they should be allowed to opt out of the payment of the fee. Broadband internet and wireless subscribers will be able to opt out of the licence fee if they do not share music files and if they sign an undertaking to pay a predetermined amount of damages if they are caught file sharing.

Payment of this fee would remove the stigma of illegality from file sharing. In addition, it would represent excellent value to the consumer, since this fee would grant access to the majority of the world’s repertoire of music. Existing download subscription offer a mere fraction of the file-sharing repertoire.

Creators or other persons entitled by by this system to claim a portion of the licensing fees but who nevertheless do not wish to be compensated under such a system could similarly opt out. Acceptance of license fees would amount to a waiver of the right to sue for the unauthorized transmission by Canadian users.

(footnote omitted)

Leaving aside the accuracy and provenance of those figures about the percentage of Canadians who file share, the obvious problem with this is that it's a negative option "tax" (or so it will be called) on consumers - with the prospect that exercise of that negative option would give rise to invasive snooping and liquidated and presumably high damages payable by Daddy or Mommy if one of the kids downloads something and gets "caught". And maybe even the additional prospect of litigation at the suit of any of the rights owners who do opt out.

I get the feeling that SAC doesn't want to highlight the "negative option" aspects of this proposal. Somehow I can't see the prospect of a a negative option "tax" for the benefit of the music industry with the alternative being significant fines payable to the music industry being attractive or vote-catching in the eyes of politicians. While Canadians may be passive and polite about many things, the juxtaposition of something that looks and walks, and smells like a tax with a negative option and for the benefit of mostly foreign and mostly wealthy corporate interests may not escape controversy, to put it mildly.

And the negative option for the music industry won't sit well either. If this is backed by legislation, it could be seen, among other things, as a mandatory "formality" that would be contrary to the Berne Convention. There are millions of mostly untraceable rights holders around the world who enjoy copyright rights in Canada. Must they "opt out" if they don't want to be part of this? If they don't opt out, how are they going to get paid? Through their national collectives, who will have no similar reciprocal scheme in place. The mind begins to boggle.

This apparently modest fee - less than a pint of draft beer these days - would be added to their ISP bill. It would generate about $900 million a year in Canada, based upon SAC's admittedly “back of the envelope” calculations. (BTW, that’s about 4.5 times more than what SOCAN now collects - and it’s taken SOCAN and its predecessors more than 80 years to get to that level). Sure - SAC admits that $5 is just a figure for discussion purposes and they could cut back to $3 a month - a mere $600 million. Sometimes, you gotta walk before you can run.

This is apparently so simple and straightforward, according to SAC, that all the details and MOUs can be worked out by this September, just in time for a new bill that would put it into effect. The few remaining matters could presumably be dealt with by the Copyright Board. (BTW, the Copyright Board and the Courts are still struggling with SOCAN’s notorious Tariff 22 for music via the internet, which is now about 14 years old and potentially still years and another trip to the Supreme Court away from fruition. That tariff was filed years before Napster, iTunes, YouTube and Facebook even existed. In fact, many users of the latter two services in particular weren’t even born when Tariff 22 was first filed.

Anyway, I hate to be negative. However, if I had a positive solution to the problems of the music industry that those in power could understand and would act upon, I wouldn’t be counting time at stop lights every morning. I’d be counting grains of sand and composing fugues on my own island in the Mediterranean.

That said, here are a baker’s dozen specific serious problems with SAC’s proposal, any one of which could prove fatal:

1. We already have a levy scheme in Canada that the Copyright Board itself and a Federal Court Judge suggest would cover downloading onto computer hard drives. It’s called the private copying levy (most people call it a “tax”, even if the Board and the Courts don’t) and it has generated more than $250 million to date (based upon extrapolation from 2007 published figures, which are, as usual, out of date), much if not most of which comes from people who never copy music - but never mind that inconvenient truth. The major record companies, i.e. CRIA, got what they asked for, i.e. legalized private copying regime with a levy. That this turned out, effectively, to be a legalized downloading regime recalls the maxim about being careful what you wish for. This speaks volumes about short sighted solutions to doubtfully serious or even relevant problems and the credibility of the industry’s current wish list of copyright “cure-alls” for all the various industry problems that have much to do with bad management and little or nothing to do with copyright law. In any case, the SAC scheme would encourage technology and architecture that would allow for downloading that is already legal, but not permit uploading or sharing - and thus would thus encourage avoidance.

2. Similar schemes to SAC’s have been touted in the past - indeed for years. Paul Hoffert of Canada and Terry Fisher of Harvard has been pushing NOANK for a long time - but the world seems to be largely saying “No Thanks”. True, there are differences with the SAC scheme - but they are not that obvious or important overall. The bottom line is that neither scheme will work unless all major copyright owners agree to it. So far as I known, none have.

3. There are significant potential privacy concerns. For the scheme to be viable and fair to creators, it must be accurate in its measurements of usage. Do you really want CRIA members to know what you are downloading and sharing? What if your tastes run to Tiny Tim, or Liberace? Or Falun Gong Favourites?

4. There are treaty concerns. A massive blanket/compulsory license of the reproduction and communication rights imposed by legislation on the basis of a “negative option” regime raises lots of obvious treaty issues even under Canada’s existing obligations, not to mention the 1996 WIPO treaties to which Canada is not bound but has signed.

5. The scheme is inherently socialistic. I have to agree with Graham Henderson on this, who famously referred to Harvard’s Terry Fisher (co-proponent of NOANK) as “Comrade Fisher” at a conference. It’s true that the many SOCAN members make only a few hundred bucks a year, if that, from royalties - though some earn much, much more. Anyone who has “created a musical work or part of a musical work” that is performed anywhere (e.g. a bar or in the subway) can join SOCAN for free. Nobody guarantees self proclaimed musicians an income in Canada. Copyright law rewards success, not simply membership and not necessarily merit. Only failed car manufactures and unsuccessful investment bankers can count on legislated bailouts these days.

6. We already have about three dozen collectives in Canada. This more than anywhere else in the world, I believe. We would need a giant new collective and maybe even several sub-collectives here - resulting in a mechanism that would make the CPCC look like child’s play in comparison.

7. We would need counterpart international schemes - otherwise Canada would be shovelling almost all that $900 million across the border to the USA and over to Europe with virtually nothing coming back. Even if we get our full share back, it’s going to be trivial. Despite the celebrity of a few performers and success of a few songwriters, we have only about 2% of the international music publishing market. Most of the money from this scheme would leave Canada, and almost nothing would come in. Especially so if the propose scheme is fully "national treatment" in nature, as appears to be the case.

8. This scheme wouldn’t work for emerging artists, who don’t show up reliably in any of the current methods used to measure downloading and sharing behaviour. SAC admits that Big Champagne is only “70% accurate” - which, whatever that may means. isn’t very impressive if you are in a garage band and on the margin. Air play and CD sales (what CD sales?, some may ask) are a poor proxy for downloading and sharing behaviour. However, that’s what the CPCC has been using. The long tail theory may work at Amazon - but won’t work here.

9. Unless virtually all of the major record companies, music publishers and performers go along with this, there would still be threats of litigation against individuals - so Canadians would have multiple levies, digital locks and litigation.

10. We would need significant buy in by ISPs - who would have to keep track of which subscribers are “in” or “out” and when - and transmit that information to the collective. More privacy issues and much more expense to ISPs. Not to mention that the perceived “tax” - even if “voluntary” - will be seen as an add-on to the ever expanding monthly bills from Bell and Rogers, etc. that will further alienate customers and result in other “optional” and more profitable service being dropped. And if there’s enough of a financial incentive to the ISPs from the new collective to let them swallow this scheme, consumers and artists may see it as a kick-back and react accordingly.

11. If this works, which it likely won’t, we would likely see similar schemes touted by movie distributors, book publishers, newspapers publishers, knitting pattern publishers and every other sector that claims to be a "victim of piracy” on the internet. Will Canadian consumers greet the add-on of another $20, $50, or $100 a month or more to their ISP bill with flowers? I doubt it.

12. We will see the largest copyright tribunal anywhere (Canada's Copyright Board) get even larger, and full employment for lots of copyright lawyers - which some readers of this blog might regard as a good thing. However, how this will serve actual Canadian creators or consumers remains rather unclear.

13. Last but not least, if this scheme works, it would surely kill or seriously wound virtually all remaining retail store and online iTunes-type activity in Canada, and stifle any innovation in the business end of the music industry for a long time to come.

The bottom line is this. If there is a problem out there that requires a copyright solution - and that remains to be proven - a bad solution enacted in haste could be worse than no solution.

As CRIA well knows, or at least ought to know by now, be careful what you wish for.

HK

More on Myths about Myths about Downloading

Here's a fairly detailed guest blog on the influential SLAW site about downloading in Canada. It's by Neil Melliship of Clark, Wilson.

Glad to say he agrees with my take from a few days ago.

HT to MG.

HK

Copyright Reform Back on Course?

There's very encouraging news from Michael Geist, who was at Monday's exclusive government digital agenda pow wow.

There are strong indications that Ministers Clement and Moore really "get it" when it comes to copyright reform and its relation to innovation, and matters generally digital and cultural.

Minister Clement, who has incredibly important responsibilities for everything from competition to communications to copyright, notes that a lot has changed since Bill C-61. And the twittering, young, and very tech savvy Minister Moore once again prominently notes Michael Geist's tweets as a positive example of all that can be done with the various gadgets that he carries in his pockets and uses so often and so well.

All of these positive statements and strong hints at what could be a very exciting and constructive consultation process can be seen on Michael's posting today.

Lobbying organizations such as CRIA and CMPDA, which have clearly spent a fortune trying to hijack the copyright policy agenda in Canada for their members' special purposes and engage in "policy laundering" regarding their own role, may be worried about ministers who actually care about balance, innovation, cool technology and culture - and who are clearly listening to voices other than those of the usual suspects.

Could Canada get back on track and show some world leadership here? That would be cool indeed.

Clearly, what we are currently seeing in France, the UK, and in the USA is not the way to go. Any smart politician - and both Ministers are clearly very smart - can see that directions such as three strikes, statutory minimum damages against individuals, and digital lock downs are neither good policy nor good politics.

This could be an interesting and hopefully very productive summer.

Hopefully, we finally have the right Ministers, the right officials, the right politics and the right timing to modernize Canada's copyright law in a constructive, balanced and forward thinking manner - rather than resorting to desperate and artificial attempts to preserve failed and obsolete business models.

HK

A Canadian Copyright Policy Laundering Flow Chart

Michael Geist/The Register

Michael Geist has a thorough and excellent analysis today of the role of CRIA and CMPDA in copyright "policy laundering", as he calls it, in Canada - including in the recent Conference Board imbroglio. I had raised some questions about these two organizations in this context on June 17, 2009.

All of this may even be more incestuous than Michael's chart shows. For example, the USTR gets its "301" information from the International Intellectual Property Association ("IIPA"), a Washington advocacy group that runs out of a couple of Washington law offices and is heavily influenced by the US entertainment industries. As I have mentioned earlier, the reports on Canada are prepared with the considerable input of a well known Washington lawyer named Steve Metalitz.

And do you wonder where the IIPA gets its information about Canada?

HK

More Myths about Myths about File Sharing

250,000 legal and levy free P2P songs for less than CDN $200?
Can CRIA seriously say it isn't so?

Richard Pfohl of CRIA has taken on Prof. Michael Geist in a letter to the Editor published in The Star on June 12, 2009 in response to Geist's column on file sharing “myths” published June 8, 2009 The Star.

Mr. Pfohl says:

Michael Geist fabricates more myths than he dispels, and misinforms Star readers about the legality of unauthorized downloading.

Downloading pirated music is not legal in Canada. The copyright law conclusions in the case he cites were overturned on appeal. In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn't apply to downloads made to hard drives.

Widespread misunderstanding of this legal fact illustrates precisely why digital copyright reform, and the legal clarity it would provide, is needed in Canada.

As Mr. Pfohl knows. or ought to know, his description of Canadian jurisprudence on downloading music is inaccurate and misleading. The consistent thread of what the Copyright Board said in 2003 and the Federal Court of Appeal said in 2004 and 2008 is that downloading sound recordings onto something that is not an “audio recording medium” may be infringing. For example, the Federal Court of Appeal said in its 2004 decision at para. 147 that:

If, indeed, digital audio recorders (or the memories embedded therein) fall outside the scope of the definition, copyright infringement could result from the use of such devices to private copy.

So - copying unauthorized sound recordings obtained via P2P onto a 120 GB iPod Classic, for example, where the hard drive memory is permanently embedded (don't even think about trying to take it out!) may indeed be infringing - because the iPod as a whole is a "device" and not a medium subject to the levy.

However, a PC internal hard drive that is not “permanently embedded” and particularly an external plug and play hard drive that is clearly not in any sense “embedded” in anything and serves no function other than to be a large memory medium may very well be “audio recording media.” In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board. This follows from what the Copyright Board said in 2003 at page 20-21 of this famous decision and, contrary to Mr. Pfohl's assertion, no Canadian Court has ever ruled to the contrary.

A levy-free terabyte external hard drive that now sells for less than CDN $200 can hold about 250,000 songs downloaded via P2P. The fact that this is apparently legal in Canada is the direct consequence of the private copying levy scheme that Mr. Pfohl’s employer, the Canadian Recording Media Association (“CRIA”), so enthusiastically and effectively lobbied for and was given in the 1997 amendments to the Copyright Act. CRIA was short sighted. Mass access to the internet was already in full flight and the concept of the “celestial juke box” was already old news at that time. The Canadian levy scheme has now generated more than a quarter billion dollars. CRIA members whine about the consequences of their legislation all the way to the bank (and indeed incessantly afterwords), but keep on cashing the cheques.

As CRIA must constantly be reminded, “be careful what you wish for.” And hopefully, Government officials, MPs and Ministers will be careful about who they listens to when it comes to Canadian copyright law and sound public policy. CRIA and some of those who speak for it it, have a poor record for foresight, wisdom, credibility and even basic accuracy in these matters.

All of that said, it is by no means clear that well conceived litigation against individual file-sharers (in contrast to mere downloaders) backed up with sufficient, reliable, non-hearsay and convincing evidence would necessarily fail in Canada under current law under some scenarios. CRIA's members were given a green light or at least an orange light to proceed on such a basis by the Federal Court of Appeal in 2005, but have been unable or unwilling to bring forward the necessary evidence to even try. Perhaps they prefer instead to propagate the myth that current Canadian laws are inadequate, to play the role of the victim of mass "piracy", and to demand new, unnecessary and overreaching legislation.

One would have thought that the recent Conference Board of Canada fiasco would have resulted in lessons being learned by copyright lobbyist organizations. Apparently, in CRIA's case, that’s not the case.

BTW, Michael Geist has a prominent new tech savvy fan in high places in the person of the Hon. James Moore, one of the Minsters responsible for copyright, whose tweet on a more recent column of Michael's in the Ottawa Citizen on June 16, 2009 could easily have described the earlier one which so upset Mr. Pfohl:

Excellent column by Michael Geist in the Ottawa Cit. today. Nice to read policy ideas & substance - not just horse race politics & gossip.

BTW, I should disclose that I've been involved as counsel in all of the above cases about which Mr. Pfohl is inaccurately opining.

HK

Still More Conference Board of Canada Fallout

The Conference Board has taken the next step in damage control arising from its recent plagiarism scandal. Here's today's statement.

The most notable and useful disclosure from the Conference Board is that:

The evidence indicates there was undue reliance on feedback from a funder who was deemed to have important technical expertise.

(Emphasis added)

The Conference Board should identify the funder who provided the “feedback”, and why this funder's “deemed” technical expertise managed to effectively poison the process. It should, as a matter of course, identify all funders of all its reports. This is normal practice, and is absolutely essential if a report is to have any serious credibility in academic, policy, business and government circles. The Conference Board must guard against letting its good name be used by special interest lobbyists in what Dr. Michael Geist calls “policy laundering.”

The report in question was to have been rolled out as a key item at a Conference Board conference on May 29, 2009. Here is the program, which shows a list of sponsors and the Advisory Board of that rather imbalanced and expensive event, which, in fairness, covered quite a lot of material other than copyright. Nonetheless, and despite the breadth of the conference, two of the four members of the “Advisory Board” for the conference were the heads of CRIA and CMPDA. These have been two of the most, if not the most, energetic, persistent and successful (in terms of legislative influence) copyright lobbyist organizations in Canada since the 1980's. It's a fair question to ask whether either or both these two well known and well funded organizations (which represent mainly American interests) were among the funders or were otherwise involved in the specific ill-fated research project now in issue.

BTW, here's what it costs to “sponsor” a Conference Board conference.

Interestingly, the Conference Board has engaged Dr. Ruth Corbin to “to review all relevant research and consult multiple sources, and redo the reports.”

The Board indicates that:

When completed, this work will be presented to a multi-stakeholder Roundtable to be held in the fall. We will publish a summary of the Roundtable discussion, reflecting the full spectrum of views on the issue, as an Appendix to the research.

One can only wish Dr. Corbin and the Board luck in sorting all of this out. The scandal may not reside only in the fact that much of the key content of the now withdrawn work was plagiarized but that much of the IIPA material that was apparently recycled as “research” may have been utterly unreliable to begin with. I'm not sure that it's possible to “redo” that kind of work.

HK

PS & Update - the Conference Board did acknowledge the financial support of several coalition or umbrella groups in this case. But that still leaves questions unanswered - namely who was really actively involved in the sponsored research. See comments below.

PS and update #2 - more connecting of dots and about the courageous Curtis Cook, former employee of the Confernce Board, in a Canwest story here.

NZ Government Runs For Cover on Copyright

With friends like this, the RIAA, IFPI and MPAA hardly need enemies. The current NZ Government is clearly running for cover to distance itself from the "three strikes"/no rule of law/absence of due process/industry defined infringement approach of the previous NZ government. It seems prepared - indeed eager - to repeal the controversial s. 92A of its copyright legislation even before it comes into force. As is being reported:

Calls to scrap the controversial new internet copyright law are increasing ahead of the Government's March 27 deadline for a decision on its future.

United Future leader Peter Dunne, the minister of revenue, today compared it with the ill-fated Electoral Finance Act (EFA).

"The EFA arguably started out with good intentions but those became overwhelmed by the impracticalities of the legislation," he said on Radio New Zealand.

"In the end it became a pariah, it literally brought a government down and Parliament has now repealed it. I would have thought we would have learned a lesson."

Mr Dunne is the second government minister to oppose the new law.

(emphasis added)

One can only hope that the "lesson" isn't lost on the UK government, the Canadian government, and others that might be entertaining thoughts of such ill-conceived legislation and lobbying visits from such entertainment industry organizations as CRIA and its lobbyists.

HK

RIAA Propaganda - Grades 3-8

In a school propaganda campaign that actually makes the late and unlamented Captain Copyright caper by Access Copyright seem almost reasonable by comparison, the RIAA is after little kids from Grades 3 to 8 - where "piracy" apparently rules.

Dear Parent: Your child is participating in Music Rules!, an educational program designed to help lay the foundation for respecting all forms of intellectual property, especially music recordings. Made possible by the Recording Industry Association of America, this program also promotes musical and artistic creativity and encourages children to use computer technology responsibly.

In school your child is learning the rules against “songlifting” – a new term for making copies of music recordings without paying for them. Like shoplifting, songlifting is illegal, and as your child learns why, he or she will also learn the basic principles of copyright protection and how they apply to all types of intellectual property.

This campaign introduces the concept of "songlifting" and the notion that any unauthorized download is a $0.99 loss. That's a good exercise in arithmetic to train these emerging scholars, isn't it?

I invite readers to take lots of GRAVOL® and go through this to extract and disseminate the most ridiculous and offensive material. How do we count the ways?

It's hard to imagine how any conscientious school officials or teachers could be complicit in the dissemination of such propaganda.

I hope that the CRIA isn't getting ideas from this. So far, it seems to have been somewhat more subtle. After all, this is Canada.

HT to Ray Beckerman for ruining may appetite for lunch today.

HK

Lobbying for Big Bucks

Jeff Norquay, a prominent pundit and lobbyist with Conservative ties (he is a former Harper PMO Communications Director) is quoted in the Hill Times today as follows:

Mr. Norquay also said the copyright lobby will be in full force when the House returns and he expects a draft legislation to be tabled within months. The government introduced copyright legislation in the last Parliament, but it died on the Order Paper when the election was called.

In its 2008 platform, the Conservatives said they would reintroduce it if re-elected. "Because of the complexities of finding the right balance in copyright between creators and users, I expect it will be fairly controversial," Mr. Norquay said. "That's the reason that it's taken so many years for copyright reform to occur."

The Hill Times goes on to say:

Lobby groups Canadian Recording Industry Association and the Canadian Private Copying Collective have recently registered lobbyists.

CRIA no doubt wants a "making available" right and a clear path to suing its members' Canadian customers. CPCC no doubt wants to expand the levy scheme which is rapidly evaporating due to the fact, as confirmed twice by the Federal Court of Appeal, that the levy scheme doesn't apply to "devices" such as iPods.

CRIA dislikes the current levy scheme, which it more than anyone is responsible for creating, because it makes downloading from the internet onto audio recording media legal. But it loves the money its members get from it through the CPCC, which has collected well over $200 million to date.

It will be interesting to see how CRIA and CPCC try to untangle the legal and policy webs they have woven together over the years - to the point that CRIA last year actually opposed CPCC in the Federal Court of Appeal case in which I acted strking down the "iPod Tax".

And when CRIA continues to whine about WIPO ratification for the purpose of helping Canadian artists, it knows perfectly well that the direct and inevitable result will be that the cost of the levy will almost precisely double due to the requirement to provide full national treatment, so that Canada will send potentially tens and possibly hundreds of millions a year in windfall levies to foreign record companies and performers (most performers will probably never see any of it), and get back virtually nothing in return. Hardly sound economics, even in normal times, which we won't see again for a long time. Officials who understand this situation are well aware of this problem.

HK

HK

Is Three Strikes on The Way Out?

Controversy continues about New Zealand's ill-conceived three strikes regime that is due to take effect on February 28, 2008. LIANZA, an association that represents 460 public, educational, commercial, industrial, legal and government libraries in New Zealand is joining the chorus demanding delay or revision Their concerns are reported to be mainly:

“As written, every person or organisation that has a website is an ISP, as is every library, school, educational institution, association, government department, company, business and office that provides Internet access to its users or to its staff,” it says.

The second concern for LIANZA is that organisations may have their internet connection terminated over accusations of law breaches, without the allegations being proven.

BTW, it's always good to see emboldened and articulate librarians taking an independent stand and not passively accepting bad policy and bad legislation. Hopefully, this spirit that is alive and well at least in New Zealand and the USA will also come to Canada.

Meanwhile, Michael Geist has pointed to a Times article indicating that the push to three strikes is out in the UK.

As the American and Canadian RIAA and CRIA litigation have shown, information from record companies about alleged so-called piracy is notoriously unreliable. It is inconceivable that they be given any power to unilaterally force the termination of internet service to anyone.

Hopefully, we will see the end of any further movement to "three strikes", would makes IPSs (however they may be defined) liable from all sides, obliterate the presumption of innocence, and put unprecedented and unchecked power into the hands of national record industry organizations , while depriving citizens of the protection of the courts for all practical purposes.

Hopefully, New Zealand will repeal this law before it takes effect.

HK