“Canadian ISPs have been defiant,” said Mark Tauschek, a senior networks and telecom research analyst with Info-Tech Research Group. “They have refused to co-operate. They have said the Internet is an open network and they aren’t going to police the content that goes across it … unless there is criminality involved, they won’t cough up information or necessarily block content.”

What’s interesting here is “unless there is criminality involved.” See, the major ISP’s already filter URLs that contain images of child abuse and may soon be expanding into other issue areas. The filtering technology is in place, it can be extended further. The issue here is that ISP’s don’t want to be in a position of judging content, they don’t want to rule on whether something is criminal or not, but should that responsibility be delegated to some legitimate authority they don’t seem to have any problem with filtering. It seems that filtering for reasons of copyright is not likely to be happening anytime soon. Still, it is an issue worth paying close attention to, as mission creep generally follows the implementation of filtering. It is also worth following closely due to the fact that other countries, particularly the U.S. and Europe are also moving in the direction of filtering for copyright reasons.

Using a technique similar to that of the GFW of China, Comcast is interfering with bittorrent and other traffic. Other ISP’s in the U.S. are also considering implementing filtering. An ISP in Denmark, TDC, blocked allofmp3.com to comply with a legal ruling. There have been proposals to implement filtering for copyright reasons in Belgium, Norway, France and other European countries. While the EFF reports that proposed Amendments put before the EU’s Committee on Culture and Education, which included ISP filtering, have been withdrawn or voted down they caution that there may still be attempts to introduce such language before the actual Parliamentary vote.

Will 2008 become the “Year of the Filters“?

Henderson cites with approval several initiatives to move toward ISP filtering of content, pointing to a French report, comments from the UK that such legislation could be forthcoming, and the AT&T negotiations in the U.S.  Later in the conversation, the group is asked what their dream legislation would look like.  The first response?  ISP liability, with the respondent pointing to Belgium as an example of an ideal model (“the file sharing issue will go away there as ISPs take down people”).  Last summer, a Belgian court ordered an ISP to install filtering software to identify and block copyrighted content (the decision is currently being appealed).

Some other interesting notes from the conversation include the persistent attempts by the Copyright Lobby to highlight the fact that they do not like the changes they want made to the Copyright Act to be referred to or compared to the U.S. DMCA despite the fact that a version of the DMCA is in fact what they want. To accomplish this they continually refer to WIPO, arguing that Canada should just implement WIPO.

There’s an interesting exchange concerning Fair Use rights in which a question is asked concerning how someone would use a 8 second clip of a half-hour show on a blog if the clip is encrypted (DRM protected). The response was a somewhat hostile attack on the person who asked the question concerning an assumption that the Government will somehow outlaw fair dealing which is quite odd since they are explicitly lobbying for an anti-circumvention clause which would outlaw fair dealing in the case presented in the question. It is too bad the questioner did not pursue this line of question more avidly.

As Geist points out, the principles that advocates of fair Copyright want are not necessarily at odds with interpretations of WIPO. WIPO provides for Limitations and Exceptions and even has a document that discusses many such limitations. It is clear that simply ignoring the consequences of implementing new measures, such as anti-circumvention, will leave many unanswered questions regarding Fair Use/Fair Dealing which is why Fair Copyright for Canada wants explicit protections put in place.

The issue has caught fire in personal and consumer blogs on the Internet, led by Michael Geist, the Canada Research Chair of Internet and E-Commerce Law at the University of Ottawa.

The Fair Copyright for Canada Facebook group now has over 17,000 members and the opposition is growing. The public is concerned that the balance that copyright legislation is supposed to maintain between the interests of creators and the interests of the general public is being distorted. The new amendments reportedly introduce “anti-circumvention” measures which prevent Canadians from using legally purchased media and technology in the ways they want. Also, it includes no flexible fair dealing and exceptions for parody, time shifting and device shifting or expanded backup provision. Finally Canadians are pissed off, that’s a technical term, because the public was never consulted while industry lobby groups were.

With respect to the other effects, roughly half of all P2P tracks were downloaded because individuals wanted to hear songs before buying them or because they wanted to avoid purchasing the whole bundle of songs on the associated CDs and roughly one quarter were downloaded because they were not available for purchase.

This “‘market creation’ effect of P2P file-sharing” is interesting indeed. Through P2P file sharing one can access content that is not available for purchase.

It will be interesting to see how the Music Industry responds. The Industry presents correlative evidence, that in the last five sales have decreased by $465 million while P2P file sharing has increased, to suggest that they’ve been losing money due to file-sharing but this report dismantles that claim. This report may also be helpful in reaffirming the “private copying” prevision in the Copyright Act that enables Canadians to legally copy and share music.

The Copyright Act contains a special exception for “private copying”: it permits the copying of music files “onto an audio recording medium for the private use of the person who makes the copy”, but does not permit copying for the purpose of “distributing” or “communicating to the public by telecommunication” (s.80). It is generally accepted that downloading music for personal use is legal under this section.

Internal correspondence also reveals that the contract was designed to further the department’s own policy objectives. A senior official outlined the rationale behind the proposed contract, stating in an email that once the CRA funding was complete, “we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs.”

Those activities were clearly identified in an email to Canadian Heritage from CRA’s co-chair who commented that “the job of taking on the educational sector on copyright reform is clearly a huge and major undertaking,” adding that education was a “well heeled, publicly funded lobby . . . devoted to abolishing creators’ rights on the Internet.”

I don’t even know what to say.

There are some very serious problems with this approach. First, pornography is not illegal in this country, second ISP’s are not the best judges of legality. They have proven to be horribly inept at it, especially when it comes to takedowns for copyright violations.

Actually ISPs are already removing content at their discretion. And in contrast to the optimism expressed by some, it does not solve the problem. When sites are taken down they simply move to other providers.

This is where the slippery slope begins. The calls for “takedown” immediately move to blocking and filtering. In discussing the proposal, Det. Don McKinnon, of the hate crimes unit, supports filtering:

“The technology that is available . . . is much similar to call blocking,” said McKinnon, explaining it’s basically a website blocker.

The introduction of a system plagued with procedural and technical problems simply because the legal solution involves a “lengthy court process” ignores the issue at hand. If judicial speed is the issue fix it, don’t bypass our system of checks and balances in way that has proven to be detrimental to freedom of speech and expression. ISPs and techies should not be considered replacements for judges and lawyers. Yes, there are challenges to combating hate speech online but difficulty should not be a deterrent.

Now, ICANN has a dispute policy that should be followed in cases such as this. While similar to the borat.kz case mentioned by Reporters Without Borders this case is different because ICANN regulates the .org domain. In this case the registrar appears to have violated the ICANN rules. The changes were made to the domain name without 1) consent from the owner, 2) receipt of an order from a court… or 3) receipt of a decision of an Administrative Panel…

The web host was not the target, but rather just the domain registrar. The website was hosted on Yahoo and is still accessible if you access the the original site by directly connecting to the IP (216.39.58.47) on Yahoo’s host and manually feeding in the HTTP HOST header johnhowardpm.org.

As if censorship was not enough Australia has now passed a new surveillance law. MEAA/IFEX explains:

New laws, passed by the Senate yesterday, give law enforcement agencies power to intercept phone calls, emails and text messages of innocent people. This extreme surveillance law poses a severe threat to press freedom – journalists can assume their conversations with sources will be intercepted at any time, says Australia’s media union.

Spies, police and other security agencies will be able to use B-party warrants to tap phones belonging to a suspect’s family, friends, colleagues and lawyer. Other agencies, such as the Australian Tax Office, Customs, and the Australian Securities and Investment Commission (ASIC), will have the power to access stored communications such as email and SMS.

Groups such as Electronic Frontiers Australia have been monitoring the growing body of censorship laws in Australia. The Labor Party is promising to bring in national filtering if elected — to protect children of course, not to silence critics. Of course, as we have seen in the past, filtering is subject to mission creep:

Regardless of the initial reason for implementing Internet filtering, there is increasing pressure to expand its use once the filtering infrastructure is in place.

It’s not *only* happening in China folks.

“When I was going to university a professor of mine said it’s legal to download music in Canada because the music industry is already compensated for their loss through taxes on blank CD’s and cassettes. Is this true?”

Downloading “music” is legal! The question is, I assume, about downloading copyrighted music (which should also be distinguished from “uploading”). Quoting the Copyright Board of Canada, CTV says that downloading music from the Internet is in fact legal for personal use and the copy must be made to a tape or CD. As Russell McOrmond accurately points out, downloading is legal but uploading is not, despite the fact that the CRIA lost their most recent case against “uploaders”. The CRIA lost because they presented a lousy case.

So why does CTV then highlight that the CRIA says it is illegal? Is it legal or illegal, just answer the question.

In a recent study, Bits of Freedom set-up web hosting accounts on 10 ISP’s in the Netherlands and placed content clearly in the public domain on the websites. They then sent out takedown notices to all the ISP’s from a Hotmail account: 7 out of 10 ISP’s took the content down. Some ISP’s didn’t bother to look at the website itself and one even forwarded personal customer details to the fake plaintiff’s Hotmail account.

Battles over linking have appeared before. In a related case, the courts have ruled that “deep linking” is, in fact, legal. “Deep linking” refers to links to specific content within websites (as opposed to just linking to the domain or /index.*) . There is a good overview of “Web Site Legal Issues” here.

The deep linking cases involved competitors linking to eachother’s content, this case involes a normal hyperlink. The hyperlink is a critical part of the WWW and I believe that attempts to control information in this subverts the free flow of information and principles of free speech. I wonder if search engines had to ask permission to index/link to the site? Imagine if this were commonplace?

Communication:

When looking at whether or not ISPs as a means of transport are liable for what their users do the court found that communication is between the host and the recipient, not ISPs that merely facilitate that communication.

The 1988 amendments to the Copyright Act specify that participants in a telecommunication who only provide “the means of telecommunication necessary” are deemed not to be communicators.

When SOCAN argued that caching was a violation of copyright the court concluded:

The creation of a “cache” copy is a serendipitous consequence of improvements in Internet technology… “Caching”is dictated by the need to deliver faster and more economic service, and should not, when undertaken only for such technical reasons, attract copyright liability.

Authorization:

An internet service provider’s knowledge that someone might be using content-neutral technology to violate copyright is not necessarily sufficient to constitute authorization, which requires a demonstration that the defendant did give approval to, sanction, permit, favour, or encourage the infringing conduct.

Balancing Rights:

It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.

In contrast to the SOCAN v CAIP decision there were several elements in the CRIA v ISPs decision that were interesting. There were four major elements concerning the communication of copyrighted works in this case: reproduction, authorization, distribution, and possession.

Reproduction & Possession

CRIA v ISPs
In this case the CRIA sought the names of users who were file sharing copyrighted works from various ISPs. The court found major problems with the case, specifically that there was no evidence of infringement of copyright. Concerning reproduction, the Judge cited Section 80 (1) of the Copyright Act:

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, … 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.

This makes clear sense for making personal copies, but the text of the decision concludes “Thus, downloading a song for personal use does not amount to infringement.”. This is in reference to the Copyright Board of Canada, Private Copying 2003-2004 which does not address liability concerning peer-to-peer distribution.

In these proceedings, the liability of persons uploading, distributing or communicating music through these services [peer-to-peer networks] is not at issue. Nor is the liability of those providing software, operating networks or Internet connections.15 Peer-to-peer distribution on the Internet is not addressed as such in the regime.

It seems that the issue concerns the origin of the copy:

The regime does not address the source of the material copied. There is no requirement in Part VIII that the source copy be a non-infringing copy. Hence, it is not relevant whether the source of the track is a pre-owned recording, a borrowed CD, or a track downloaded from the Internet.

Thus it IS an infringing act if you copy a CD and give it to your friend, but it is not an infringement if your friend borrows a CD and makes a personal copy. Therefore in the case of reproduction, it is not clear whether or not the music files in question were legitimately made for private use (or not). Another scenario: you purchase an mp3 legitimately — but lend it out to someone (perhaps via a file sharing tool) who then makes a private copy.

Things were further complicated by the fact that the CRIA hired a company, MediaSentry Inc.,to those suspected of file-sharing copyrighted works. But the testimony of the President of the company, Gary Millin, was ruled to be largely “hearsay” based on information from his employees over which he had “general oversight”. The Judge stated that “At the very least, Mr. Millin should have identified the employees who conducted the work, stated their qualifications and explained how they conveyed the result of their investigations to him.”

Furthermore, the same company flooded various P2P networks with bogus mp3 files and did not distinguish between those files and the ones they suspected users of sharing:

Mr. Millin also testified that his company provided a service called MediaDecoy which distributes bogus or inoperative files over the internet. People downloading these files think incorrectly that they are music files. The files are made to look like real music files, but they are inoperative. When he was asked whether he could tell whether any of the files allegedly copied from the alleged infringers were MediaDecoy files, Mr. Millin stated that he had not listened to any of the files copied from the alleged infringers and that listening to the files was not work that his firm was contracted to do or the “process that we set up with CRIA”.

So the CRIA could not prove that there were any copyrighted works being shared. Secondly they could not convince the Judge that they had gathered enough evidence to find out who was doing the file-sharing. The CRIA and Mr. Millin also appeared to confuse the Judge with regard to pseudonyms and IP addresses.

There is no evidence explaining how the pseudonym �Geekboy@KaZaA� was linked to IP address 24.84.179.98 in the first place. Without any evidence at all as to how IP address 24.84.179.98 has been traced to Geekboy@KaZaA, and without being satisfied that such evidence is reliable, it would be irresponsible for the Court to order the disclosure of the name of the account holder of IP address
24.84.179.98 and expose this individual to a law suit by the plaintiffs.

The pseudonym is largely irrelevant, any user can make or change their pseudonym whenever they want to what ever they want– it does not impact the fact that ultimately the transmission of the mp3 is from one IP address to another. This can be easily demonstrated with a packet sniffer. Thus the fact that the user had a pseudonym is irrelevant and only serverd to further confuse the matter.

Distribution & Authorization

Concerning the actual sharing of files, the Judge ruled that this was not the same as distribution.

No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service.

As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement. I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a
shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing.

Balancing Rights

First the CRIA made a request for documents (connecting the IP adress with a user) that do not exist. The ISP’s would have to create them specifically to comply with a disclosure order. the “Rule” under which the CRIA applied for the documents “233 is to compel the disclosure, but not the very creation of documents.” Beyond that, the ISPs testified that although they could create such documents “the older the information, the more unreliable the result that will be” and that although they can ultimately produce the name of the account holder likely to have been assigned a particular IP address at a particular time “that account holder could be an institution and/or may be linked to a local area network of many users.” Since the CRIA waited months before initiating the disclosure proceedings the Judge ruled that:

Under these circumstances, given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, this Court is of the view that the privacy concerns outweigh the public interest concerns in favour of disclosure.