Martine fait un rapprochement entre les pubs larmoyantes anti-pirates au ciné, qui font l’éloges des artisans du 7e art, et le fait que la principale source de films contrefaits est bien ces artisans eux-mêmes.

The URDP opinion guide from the Berkman center

Maybe of interest to some readers who might have more time on their hands since their favorite respondent was arrested.

Werblog tells the RIAA to Get Real: Kevin feels that suing users « is legally more defensible than suing Napster and its ilk  » but he’s concerned that the outrage over those lawsuits brings about the risk of « cheapening the distinction between free beer and free speech ». I like his conclusion:

We need to get as quickly as possible into « Plan B, » which is to offer customers licensed music downloads with prices and terms they find acceptable.  And the best way to get there is to acknowledge that the problem isn’t the institution of copyright, or the idea of charging for a piece of recorded music.  It’s to empower those within the music industry who realize that scaring 12-year-olds isn’t a long-term solution to all their problems.

I would add that this a great first step which we must not be satisfied with. I think this « Plan B » is purely a business decision, a change in a business model, that can happen in the existing legal context. One could assume a market economy would adjust to meet demand in a mutually profitable point. The music industry being rather concentrated, this process might not happen gracefully. The scorched earth tactics employed by the music industry regarding P2P is a good demonstration: we don’t want to move into that space, but we’ll make sure no one can, either.

Beyond the current issues with the distribution of files are underlying legal issues that need to be adjusted to provide a healthy environment not only for the majors to distribute their stuff, but also for other entities or individuals to create, use, learn from or muck around with, works.

Kevin also links, disapprovingly, to Amateur Hour who stresses that the property in intellectual works is different from property in physical goods. I don’t see how both positions should be mutually exclusive. Yes, the argument of the RIAA and other rights owners regarding far reaching control of works, using DRM or otherwise, is a legal fallacy. This does not mean that P2P sharing on Kazaa can’t also be real classic copyright infringement.

Once these facts are agreed on, we can ask ourselves « should it be this way? » and start thinking about a « Plan C ».

As much as it saddens me that the best test cases the RIAA can seem to find include a clueless mom and other hardened criminals, I still believe suing the actual person doing the infringement is the way to go in the present legal context.

Ernest Miller and Derek Slater both discuss a WSJ article that argues the opposite position:

« Prof. Lichtman apparently argues that indirect copyright liability for technology providers is often a better way to deal with copyright infringement than directly suing infringers. In other words, make Kazaa liable, not the people uploading music files. « 

Derek takes a good look at that argument and generally accepts it « if you can ensure that the technology gets out of the womb « . The economic efficiencies argued for in the article seems reasonable enough to me and I’ll accept that it would be cheaper to sue one Kazaa inc. than individual users. I’m not convinced the world would be a better place because of that convenient shortcut though.

I like the discussions about alternate systems for dealing with content distribution but, if I’m not mistaken, the Aimster decision makes no such provision for balance and emerging technologies. Under the current jurisprudence, wouldn’t Google be infringing if they shipped their own web browser?

Ernest does express his own concerns too « Frankly, I’m not sure how the internet could have developed had Prof. Lichtman’s position been adopted back in the 70s. Heck, I’m not even sure if the personal computer (the world’s greatest copying device) could have evolved as it has, were such a broad definition of liability adopted. « 

Indirect infringement is an important doctrine and a very necessary one for copyrights and other IPR to be taken seriously. Yet, I think the way it has been developed regarding P2P networks, hyperlinking and search engines is not constructive. If there was a clear legislative effort to frame the need for balance, I’d be more than happy to reconsider my opinion.

Update: More from Furdlog and LawMeme and BiPolg and Legal Theory Blog

« Murky laws make piracy suits less likely in Canada than U.S.  » says the Globe and Mail.

Basically: we have privacy legislation that prevents the fishing expeditions for data at ISP’s and the private copying exception has never been tested.

The privacy issue, or the absence of a shortcut through the due process route, is a fact. But those rules don’t prevent a lawsuit, and if actual damages were actually incurred to the amounts stated in the US lawsuits, the procedure should be no terrible burden. After all, thousands of lawsuits involving defendants that were initially unknown have successfully been conducted using these rules.

The other issue stems from the fact that the private copying exception does not require the person doing the copy to own the rights to the music. Indeed, taping a song off the radio is meant to be legal; placing the burden of assessing the rights of the person broadcasting, or otherwise communicating the work, on the shoulders of the listener would be ridiculous. I think this is sound policy…

All things considered, I don’t see how any of this prevents a lawsuit against anyone offering files to the public (Canadian or otherwise) on a p2p network in Canada though. Our laws are perfectly adequate to catch people « trading in stolen goods » as the representative from CMRRA is quoted saying, although I would object to the use of the term « stolen goods »…

Fair enough, our laws don’t hold the hands of the rights owners and make the process of enforcement a new and improved express e-procedure in 5 easy steps with bonus suspension of the due process at no extra cost and all the good taste of racketeering with only 2 grams of pork. You have to file a regular lawsuit under rules that are deemed good enough for everyone. But then again, since the (US) right to fair use does not include the right to make a copy by the most convenient means, why would the most convenient enforcement means be in return provided to rights owners?

The article ends suggesting we update our laws to be in line with international norms. Exercise left to the reader (hint): Find date on which Canada signed the Berne convention (and I think we might have been covered under the UK accession before that date). Find date on which the US signed Berne. You can also check out the coalition of the willing who have signed the WCT.

[via Furdlog]

Cem Kaner proposes a Software Customer Bill of Rights .

Nicely done, good background hyperlinks.I especially like « A software vendor may not block customer from accessing his own data without court approval  » and « When software is embedded in a product, the law governing the product should govern the software ».

[via Hack the Planet and Greplaw]

Declan asks if the liability rules surrounding computer software should be tightened: « the EULA is the slickest ‘Get out of jail free card’ I can think of in recent years » says a consultant quoted in the article.

It’s an issue that I feel is very important. As computers take a larger, more important, mainstream and legitimate place in society, will the industry be forced to mature and stand for itself? While Declan talks mostly about legislation, I was wondering about the feasibility of a professional order for programmers, which is another approach to address the same issues.

As a member of a professional order, I have mixed feelings. Yes, it is a layer of bureaucracy, it is often self serving, it is expensive, it adds inefficiencies.

On the other hand, it is there to protect the public (ok, the Bar in Quebec also has the mandate of defending the interests of it’s members, but that’s an exception), it imposes guidelines and rules, it implies deontology, it mandates acts that are reserved for the members of the order. It is socially the sign of an important profession which carries out a role that is considered important enough to be regulated and that can have a significant impact on third parties. In Quebec we have about 45 different professional orders.

So what to do? Limit liability exceptions (THE STUFF IN CAPS, as mandated by US law I believe) in EULAs? Arguably, in Quebec the Consumer Protection Act already does that, in the area of software sold to consumers. It has however never, to my knowledge, been used regarding any licence or any other contract related to software. Would specific legislation be needed? Declan is understandably congress-shy when it comes to law and technology given the previous legislative track record.

The problem is clear: we’re relying more and more on software that comes without the most basic guarantees. Should we refrain from relying on software or bear the consequences when we do so? Should we seek a legal remedy? Indeed the current legal and economical context do not seem to provide the necessary incentives to improve the situation, as it appears to me disruptions caused by software only increase as use, penetration and entrenchment of software in society increases.

Maybe we’ll reach a breaking point economical losses will make the (assumed) extra cost of providing higher quality software appear acceptable? Or would increase cost of licences simply translate directly in profits for vendor?

I can’t help but feel that while a software (and hardware) market where accountability would be greater would certainly be very different than what we currently know, it might be become a necessity. I’d be curious to know what ways you feel would be appropriate to achieve this accountability.

[Wired story via Furdlog]

Chris Barton: Microsoft security flaws trampling on consumer rights. The article’s conclusion I agree with:

For far too long users have accepted that software is different from other consumer products. And that the End User Licence Agreement you buy indemnifies the vendor against any claims, losses, or problems resulting from its use – even if the vendor knew about the problem before it sold the product. Our consumer protection law is supposed to stop that sort of cop-out.

It seems someone discovered Part VIII and the associated Tariffs (current and proposed) : Jay Currie at Tech Central station wrote a piece titled « Blame Canada » which I was kindly directed to by Frank Field and Matt Morse.

Well, without getting into too much details, while downloading music might be covered by the Tariff, as it does not specify any source or support requirements for the sound recording , uploading without a proper licence is not.

The actual provision in the Copyright Act is

Copying for Private Use

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer’s performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.

As you can see, it’s a fairly narrow exception. One interesting thing though is that it is an accepted use: rights holders can’t assert a right over private copying. Hence it is not presented as defence to infringement. It is obviously not « expressly legal to share music » in Canada. And the Tariff does not make everyone happy either.

I must admit that since I use way way more CD-R for backup purposes than for copying music, I do feel I contribute more than my fair share to SOCAN and the CPCC. Therefore, the whole legitimizing file-sharing argument is tempting. But I’m also aware that my music tastes are very different from SOCAN’s pie sharing methods and I would very much prefer a better metric to evaluate right’s owners compensation if it becomes a de facto way to deal with file-sharing issues. After all this is about compensating the artists and my tastes over time do not follow Soundscan.

In the meantime, I feel like CDs are taxed like cigarettes or gas and that the « incumbent industry » is benefiting from a system that might otherwise foster a more diverse and rich offering than what this industry is ready to offer.

I am not generally opposed to compulsory licensing and/or tariffs but they are a delicate regularoty exercise that requires a clear policy vision and many checks and balances to be productive.

Another interesting nugget of Canadian copyright law is the Tariff 22. Controversial and challenged in court, it applies mainly to webcasting but might have an incidence on general filesharing.

[Update: Greplaw has a similar post]

Eben Moglen of the Free Software Foundation answers SCO’s claim about the GPL’s invalidity.

I still think that if the GPL was to be invalid, especially on the ground SCO claims, it would take with it in it’s fall a sizeable portion of the other proprietary EULAs and software distribution licences. Free software might find some surprising allies if this ever goes near a courtroom.

[via Slashdot]

Keeping the Net neutral is the title of this Salon piece.

For those with a subscription, it explains why cable compagnies should be made common carriers, for me it’s just a teaser that I agree with.

Update: Frank has a nice exerpt.

[via Greplaw]

Nice summary of the draft directive by the Foundation for information policy research .

[via Emerging Technologies → Ross Anderson]

The discussion about Terry Fisher’s copyright proposition.

The SCO–Linux lawsuit/soap opera.