Targeting Individuals: Targeted Advertising on Online Social Networks

February 16, 2008 by Virginia Torrie

Advertising has always been, or has tried to be, “targeted” at potential and existing customers. The entire purpose of advertising has, and continues to be, to communicate the virtues of a product or services to consumers in the marketplace in an effort to turn potential consumers into actual customers.

In the past, this type of advertising has targeting consumers by adjusting the timing, style and venue of advertisements to reflect trends in consumer demographics. For example, advertisements aired on television during children’s programming are by and large advertising goods and services used by children, such as toys, games and theme parks to name a few. During live coverage of a sporting event such as NHL hockey (which may air at a later time, but on the same channel as children’s programming), different television advertisements are aired, promoting beer, credit cards and new cars, which reflect the perceived interests of this viewer demographic.

The internet and related innovations in online social networking have expanded the different venues available to advertisers in recent years, while also providing marketers with a means of targeting advertisements to specific individuals. Instead of targeting an overarching demographic, such as males aged 20-29, marketers can now use these new technologies to target,

Joe Consumer
Age: 26
Hobbies/Interest: Hockey, Traveling and Rap Music
Student at Osgoode Hall Law School, Class of 2009
…

Using information that Joe voluntarily posts on his Facebook profile for instance, marketers (who pay Facebook to have access to Joe’s information), can target advertisements to Joe with unprecedented specificity. The moment Joe updates his profile to reflect his new found interest in rock climbing, advertisers of rock climbing equipment are able to display their advertisements in the side panel of Joe’s computer screen.

While many, if not most, consumers do not object from a privacy standpoint to having advertising targeted at them as a member of a larger demographic group, advertising targeted at specific individuals may be a cause for alarm. The fact that advertisers have acquired a profile of information on individual consumers, ranging from information on age and sex, to favourite televisions shows, movies and music artists, can be frightening. More frightening still is that most users of social networking sites appear unaware that the information they post on their profile page is being used by advertisers for this purpose. Lengthy, complex and often confusing privacy policies and terms and conditions documents (which users are required to agree to before opening a account on a social networking website) may be one reason for apparent consumer unawareness. The fact that the facilitating technologies of individually targeted advertising are relatively new is yet another.

From a pragmatic standpoint, one could argue that anything posted on a website is technically out of the control of the person posting it once it has been made available to the public. Thus, one should not consider anything posted on a webpage as “private”. While this may be practically true, there still remains the possibility that laws may be drafted which set out guidelines and limit the use of what is considered “private” information posted by users on social networking websites.

A lack of public awareness on this issue arguably should not be taken as implied consent by members of social networking sites to have their personal information used by advertisers. From a public policy perspective, users of social networking sites should not only be made aware of how their information is used, they should have a voice in any subsequent legal debates respecting privacy legislation in this area.

As a member of an online social networking website, one might begin to foray into the potential privacy issues posed by individually targeted advertising by reviewing the information posted on one’s personal profile page. That information is a part of what comprises one’s individual consumer profile in the databases of an unknown number of advertising and marketing firms. Do you feel like your personal privacy has been compromised?

Posted in Technology, Privacy, IP | No Comments »

New tools for new paradigm - Robertson v. Thompson Corp.

February 11, 2008 by khshin

I’m going to show you how to be a millionaire. First, draw a line on a piece of paper.

Great. You have just created a one-dimensional world. In this world, people can only move linearly since there are no ‘sides.’ So, they can’t see you even when you are next to them. Now add three more lines to form a square.

Well done! Now you have a two-dimensional world. The inhabitants can now look around as there are two dimensions - forward, backward, and sides. But still, no ups and downs. People in this world would not be able to imagine a sky over their head. Now, imagine what a bank safe would look like in this world.

A safe in this dimension would have walls but no roof or floor. Despite this deficiency, it is a perfect safe to the inhabitants of this world because they can’t imagine ‘up’. However, as inhabitants of a three dimensional world, you can easily take the money out of the safe, simply by reaching in. To the dwellers in this dimension, however, this would seem like a preposterous idea. Let’s say that I stole this money. Surprised by the disappearance of money, people in the two-dimensional world decided to take every possible measure to protect the safe. How does it look like?

You may add many more walls, but still no roof. We just have to reach in to get the money, just as we did before. You can be a millionaire! None of the protective measures of this world can protect the safe from you.

In Robertson v. Thomson Corp., the Supreme Court of Canada made huge efforts to define terms that are central to the copyright law such as originality, collective work, substantial part, media neutrality, reproduction and so on. After a lengthy discussion, the Court concluded that: “in order to remain within their right of reproduction, the publishers must enter the entirety of each newspaper into the database …… rather than permitting each article to be viewed separately.” Would this determination put an end to similar disputes? Imagine a newspaper publisher who stores his/her newspaper by article, torn out from a paper—rather than storing it as part of a complete newspaper—catalogued in an alphabetical order by topic without any reference to the date of publishing, etc. Would this be an infringement of the right of the freelancers? According to the majority in Robertson, it would be. But would the freelancers complain about it? I don’t think so. If the publisher had used the CD-ROM in question purely for storage purposes, the authors probably would not have brought a claim. In my opinion, the key issue in Robertson is the change of relationships between the freelancers and the publishers by the advent of new media. New media include internet portals and commercial database companies who deliver information to consumers. There are three ways for new media to acquire information: First, they can produce articles themselves. Second, they can purchase it directly from the author, either the freelancers or the publishers. Lastly, they can purchase any information from the publisher. Market economy has taken the third option. It is cheaper, faster, and more convenient. Now, the publishers and the freelancers are competitors. Current copyright law has not recognized the competitive relationship between the publisher and the freelancer. It is not equipped with relevant tools, therefore, it cannot provide a reasonable solution to the issues rising from the new relationship. In Robertson, the Court’s attempt at a solution is parallel to trying to protect the safe from the three dimensional world using two dimensional tools. It simply doesn’t work. It is time for the Parliament to intervene. There would be many ways to solve this problem, but the direction that the Parliament should take is to get rid of the competition between the freelancer and the publisher, restoring the relationship back to cooperation. For example, a new law could forbid assignment of any copyright for 60 days from the date of publication, allowing the freelancer to earn as much money as they can without competition within the time frame. It is like pushing me into the two-dimensional world. I won’t be able to get the money out of safe while I’m locked in the two-dimensional world. But for the time being, the court in dealing with similar problems should utilize the law to best reflect the change of relationship rather than trying to figure out the exact interpretation of each word.

Posted in General | 2 Comments »

Mashups, Fair Use and Community Standards

February 5, 2008 by Michael Dytyniak

Mashup culture continues to expand and proliferate, especially in the online word. Many audience members are no longer content merely to consume media, but actively comment on it, interact with it and reshape it. The explosion of repurposed copyrighted material that appears online challenges old notions of the fair use doctrine, and suggests the need for a new approach. The study “Recut, reframe, recycle” by American University’s Center for Media Studies suggests that efforts by media conglomerates to systematically filter and remove their copyrighted works from video sharing sites such as Youtube will trample the fair use rights of many video creators. In such an environment the “mashup generation” might never know their fair use rights as content creators. Of the countless user generated videos online that contain unlicensed material many can lay claim to a fair use defense. The study lists 9 types of uses of copyrighted works in online videos:

· parody and satire

· negative or critical commentary

· positive commentary

· quoting to trigger discussion

· illustration or example

· incidentally use

· personal reportage or diaries

· archiving of vulnerable or revealing materials

· pastiche or collage

While parody and satire are likely to be protected under current fair use precedents (at least in the United States), some of the categories do not fall under accepted examples of fair use. The studies cited examples where the “quoting” of video clips to trigger discussion was merely the posting of the entire copyrighted work, with no commentary or other original work added by the original poster. In such cases, a fair use defense is unlikely to succeed. However, there are many examples that push the boundaries of existing fair use doctrines– collages or mashups may use extensive portions of copyrighted works, but nonetheless be transformative in nature. Boundary cases and novel categories point to the need to articulate best practices in fair use for online video. The authors suggest another established code of best practices as a model.

“Documentary Filmmakers Statement of Best Practices in Fair Use.” provides easily understandable fair use guidelines for documentary filmmakers. The authors provide four broad categories of fair use, including examples and associated limitations. The four classes of use are as follows:

· Employing copyrighted material as the object of social, political, or cultural critique.

· Quoting copyrighted works of popular culture to illustrate an argument or point.(IE: film clips might be used to illustrate changing cultural attitudes over time.)

· Capturing copyrighted content in the process of filming something else.

· Using copyrighted material in a historical sequence (i.e.: copyrighted material such as music and might be the best way to depict a historical era.)

It is interesting to note that the authors consider the statement of best practices be an aid establishing what generally accepted practices are in the documentary filmmaking field. This is an underlying consideration that courts use in assessing fair use, and so, such self-regulating guidelines might provide guidance to courts, and proactively protect content creators in various fields. For example, statements of best practices for DJs or visual artists could be developed. Such self regulation might provide an alternative to exhaustive statutory provisions or inconsistent judicial interpretation. However, one criticism is that the guidelines are not especially specific. The indeterminate area where perhaps too much copyrighted material has been “borrowed” is not carefully defined. Despite this, community standards (in consultation with legal experts) might have a crucial role to play in the future of fair use/fair dealing.

The question arises whether such “community standards” could be effective or even desirable. Complex assessments of fair use in borderline cases are likely best handled by a judge. However, it must be remembered that user-generated online video is a field in its infancy. The purposes and motivations behind this new media frontier are little understood. As time passes there is likely to be a “dialogue” between creators, the courts the original rights holders, and possibly even legislators as to acceptable practice in this field. In any case, an equilibrium must be found so that professional media producers and amateurs alike can both flourish.

Posted in Technology, Movies, IP, Copyright | 1 Comment »

Effective Copyright Online – Drawing from Tariff 22 and 22A

February 2, 2008 by Conrad Seaman

Illegal file trading will likely exist on the internet for the foreseeable future. As a result we are faced with the challenge of upholding the notions of copyright online or changing the scope of such laws and legalizing, to some extent, file trading. The former is an objective which I believe Tariff 22A falls short of addressing adequately and the latter has lead to unease at the Copyright Board and elsewhere. I argue here that the affirmation of copyright laws online is possible and that the principle elements of a working model can be found in the Canadian Copyright Board’s Tariff 22 decision as opposed to the recently approved Tariff 22A.

The impact of tariffs has lead many, including Michael Geist, to opine that downloading in Canada may be legal. A current version of their argument can be summarized as follows.

1. Tariff 22A’s approval of a tariff on communication means that the transmission of the files over the internet, regardless of their copyright status, will be legalized.
2. The Private Copying Levy would then allow individuals to lawfully copy those files to any personal medium.

Viewed in this light blanket tariffs are seen as legalizing the actions they target and they may therefore have unintended consequences. Any proposal for copyright reform must therefore address the question of legality head on.[i]

Tariff 22 would have seen ISP’s which make income via advertising pay copyright holders 3.2% of their gross revenues or 25 cents per subscriber, whichever was greater. Large media corporations (read ISP’s) vehemently opposed the scheme on the underlying basis that the model would destabilize the media playing field. They could no longer be certain of the costs they would need to pass on to users as expenses would be tied to revenue. Market neutrality is therefore another key consideration for any working model.

The SCC’s Tariff 22 decision also clarified that any version of copyright enforcement on the internet needs to hold those responsible for communication under s.3(1)(f) of the CCA legally responsible. Specifically, the decision held that the ISP’s could not be held responsible as they were merely conduits falling under the exception in s.2.4(1)(b).

More generally we can also say that any solution should be capable of easy implementation. To this end the proposals made in Tariff 22 are again of value. However, instead of targeting ISP’s we need to leverage their relationship with users. There are a small finite number of ISP’s and their networks clearly support illegal file trading. Furthermore, a solution working with ISP’s could target a stable relationship rather than a volatile technology. Over the past 20 years subscriber relationships with ISP’s have not changed appreciably despite substantial technology advances. In opposition Tariff 22A targets individual websites vastly increasing the number and instability of control points and doing little to stem the flow of illegal file trading. In fact the tariffs may only serve to further handicap legitimate operations.

The solution I propose has two principle components. Its first branch recommends that our existing legal solutions (i.e. physical enforcement) for resolving communication infractions should remain in place. This means that when illegal communications reach a level of public pervasiveness which is unacceptable the source of such actions can be conventionally eliminated. This occurs regularly today and has been compared to the war on drugs.[ii] Though far from perfect stemming the flow into popular society may be the best we can achieve.

The second branch addresses the fact that a lack of total elimination results in recognizable losses for artists. To this end the individuals (i.e. the communicators) in the network need to be fined based on the type and magnitude of their copyright transgressions.[iii] With the use of passive file tracking at the ISP level[iv] it would be relatively easy to establishing the actus reus component of the criminal activities taking place while at the same time respecting privacy rights.[v] This provides us with the legal grounding necessary to issue a fine. ISP’s would only be responsible for assessing and collecting fines which is in keeping with their exception right under s.2.4(1)(b) of the CCA. Finally, the fines can be established as set rates thereby eliminating any market imbalances.

The end result is that the arguments made by the ISP’s are quelled but the principle ideas and easy implementation of the original Tariff 22 proposals are retained through co-operative methods while avoiding the presumption of legality created by tariffs.

---

[i] This was also recognize by CRIA in its Tariff 22A arguments before the Copyright Board in which is suddenly reversed its previous stance on tariff viability.
[ii] Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World (New York: Oxford Press 2006) at 179.
[iii] This is in accordance with s.42 of the Canadian Copyright Act – which creates the criminal penalty for copyright infringement.
[iv] In fact most of these technologies are already used by ISP’s to shape network traffic.
[v] For further clarification see the Canadian Privacy Act under “Collection, Retention and Disposal”

Posted in General | 2 Comments »

All Mixed Up: Scrabulous and the Realpolitik of IP

January 30, 2008 by Ren Bucholz

In 2005, two brothers in Kolkata, India launched Scrabulous, an online implementation of the board game Scrabble. With a few thousand regular players, it wasn’t about to replace World of Warcraft in the annals of online gaming. But in 2007, they took the suggestion of a regular player and spent just ten days writing a version that would run on Facebook’s newly open development platform. In retrospect, that move was a stroke of genius. Not because Facebook has over 62 million users, but because those users are embedded in networks of friends. And Scrabble—or Scrabulous, or any game—is more fun with friends. In a matter of months, 2.3 million Facebook users had installed Scrabulous.

That huge surge in traffic pushed Scrabulous above the radar, and the makers of Scrabble took notice. And they told their lawyers. From Forbes.com:

In mid-January, Pawtucket, Rhode Island-based Hasbro, which holds the Scrabble trademark in the U.S. and Canada, asked Facebook to remove Scrabulous because of copyright infringement. “We have spent many years building the Scrabble brand, and what Scrabulous is doing is piracy,” reads an official Hasbro statement. “We … hope to find an amicable solution. If we cannot come to one quickly, we will be forced to close down the illegal online game.” (Emphasis added)

As you can see above, coverage of the controversy has been somewhat muddled on the law. Is this a copyright claim, a trademark claim, or both? Or does it relate to a patent on electronic implementations of the game? Without a copy of the communications between Hasbro and Facebook, we’ll have to speculate.

If it’s a copyright claim, Hasbro must show infringement–e.g. unauthorized reproduction of copyrighted material. But what’s copyrightable in a board game? Copyright expert Bill Patry had this to say:

Copyright in games extends only to the graphic elements and textual explanations, not to the way the game is played, so it is possible to make some changes and avoid infringement.”

In other words, copyright attaches to elements of a board game–the manual, illustrations, etc.–but not its play or scoring mechanics. According to my hours spent playing Scrabulous against strangers research, the letters and coloured squares look similar to their real-world equivalents, though enough differences exist that it’s unclear whether a court would find them substantially similar. For example, the multiplier squares (i.e. “triple word score”) have had the labels removed, though the colours remain the same. There have also been “look and feel” cases in the U.S., where the makers of video games and operating systems (Apple comes to mind) claim copyright in the whole user experience of a given product instead of its individual elements. However, that doctrine remains weak and undeveloped in the U.S.

On the other hand, Hasbro might pursue a trademark claim and try to show that Scrabulous is confusingly similar to the Scrabble mark. Specifically, it would have to show that the public was confused or deceived into thinking that Scrabulous is associated with or approved by the makers of Scrabble.

If Hasbro won either of those claims–and it’s not totally clear that they would–the biggest difference between a copyright and trademark action would appear when determining damages. The most common remedy for trademark violation is an injunction on further use of the offending mark. Profits from use of the mark, actual damages to the legitimate mark holder, and punitive damages can also be awarded. But at the end of the day, Hasbro would have to meet a fairly high evidentiary burden in order to extract large sums of cash from the makers of Scrabulous. Copyright, on the other hand, carries a statutorily defined range for damages for each infringement. Since over 600,000 people play Scrabulous daily, making numerous cached and ephemeral copies of potentially protected elements, a successful copyright claim could bankrupt the United States government, let alone two brothers in Kolkata.

Which brings us to one conclusion: nobody wants to go to court over this. The makers of Scrabulous net about $25,000 per month. Hasbro, on the other hand, would have to deal with negative publicity and more than 46,000 people who have already joined a “Save Scrabulous” Facebook group. These realities have fueled speculation that Hasbro’s threats are just meant to force the makers of Scrabulous to sell their business to Electronic Arts, the world’s largest video game publisher and holder of the rights to exploit the Scrabble brand electronically.

That outcome, while perhaps being the tidiest for all parties, raises a fascinating question. U.S. intellectual property laws are supposed to encourage creativity and reward innovation, but who are the innovators here? Hasbro, which simply purchased the rights to Scrabble, or the brothers who took a familiar boardgame and turned it into an online phenomenon beloved by millions of people? Can you spell “ironic”?

Posted in Infringement, Trademarks, IP, Copyright | No Comments »

Europeans Crush “California Champagne”

January 28, 2008 by Jeremy Barretto

Its not often that a small country like Belgium would have the bravado to take on the world’s superpower. But earlier this year David literally crushed Goliath in a geographical indicators dispute between the old and new worlds.

It was reported on January 10, 2008 that 3,200 bottles of André sparkling wine from California were seized by officers at the port of Anvers, Belgium. André made the faux pas of advertising their product as “California Champagne” and “André Champagne Cellars” allegedly in violation of export laws that protect the name of wine regions. In a peculiar development, somewhat reminiscent of a modern day Boston Tea Party, Belgian and World Customs Organization officials released this video showing the destruction of the wine. Is this the start of a wine war between the old and new world?.

The André seizure is but one example from a broader movement to protect old world labels from Europe against new world threats from primarily North America, South America and Australia. The intent of the European custom officials is clear: mess with our brands and suffer the consequences. According to David Vaver, France has led Europeans countries in establishing worldwide protection for appellations (districts) of origin for gourmet wine and food to preserve the uniqueness of their products.

North America South America and Australia have less established regions and can gain consumers by using old world indicators. There are exceptions, such as the new wine region of New England Australia. Although this choice of name appears likely to confuse connoisseurs on three continents, it shows that Geographical Indicators (GI) can be of value outside of Europe. Australia has been a new world GI success story with wine regions Coonawarra and Barossa. In fact, Irene Calboli reported that Austrailian wines outsold French wines in Britain and America for the first time in 2003.

The international legal foundation for geographical indicators is found in the The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) administered by the World Trade Organization (WTO). Provisions 11.11 to 11.15 of the Federal Trademark Act R.S.C. 1985 incorporated geographical indicator standards from TRIPS into Canadian Law:

(a) identified a wine or spirit as originating in the territory of a WTO Member, or a region or locality of that territory, where a quality, reputation or other characteristic of the wine or spirit is essentially attributable to its geographical origin, and

Vaver sees some ambiguities with these provisions regarding what exactly would identify a geographical region. He cites Beaujolais as being readily identifiable with an appellation in France but not “Canadian Beaujolais” or “Fizzy Beaujolais.” Customay names such as Port and Sherry are exempted from these provisions. The hope of the Europeans is that countries like Canada will treat theses exemptions as temporary. Canadian producers may prefer a prolonged exemption, since having “imitation fortified style sherry” just isn’t as romantic.

Two distinct directions appear possible for the future of GIs. The old world position would advocate a strengthening of existing GIs for wine and also a broadening of protection to other products such as cheeses. Irene Calboli writes that this position is supported by the long history and investment in products with GI protection. Further, inadequate GI protection would confuse consumers and result in new products “free riding” on the reputation of the original territory of origin.

Conversely the new world position advocates against expanded GI protection. Calboli cites the weak link between now generic names and their territory of origin due to use of geographical terms by immigrants in new lands. It is argued that it would be costly and time consuming to alter customary product names to satisfy expanded GI protection.

Considering the relative advantages of these positions a minimalist approach to GI protection is advocated for three reasons. First this avoids further complexity in the TRIPS implementation and uncertainty for generic names that could be swallowed by expanding GI, such as Parmesan cheese. Second, developing countries, often silenced in the old world vs. new world debate, would benefit most from less restrictive GI protection in establishing their agricultural industries. Third a minimalist GI protection system focuses the consumer on quality of the product rather than simply its original place of origin. If European products are of superior quality or value then added protections are unnecessary, given that the territory of origin is prominently displayed. Expanding GI protection appears less akin to historical preservation and more like sour grapes.

Posted in Trademarks, IP, General | No Comments »

Music Previews: Should Use of a Marketing Tool be Considered Fair Dealing for the Purpose of Research?

January 28, 2008 by Cory Schneider

In October 2007, the Copyright Board of Canada rendered a decision regarding tariffs payable to SOCAN by online music services.[1] As part of the Board’s decision it concluded that music previews do not infringe copyright as they constitute fair dealing for the purpose of research. While I agree in principle that a prospective purchaser of online music should have a right to preview the music before purchasing it, I find the rationale for the Board’s decision to be questionable, and contend that the issue of whether or not previews constitute fair dealing need not have been addressed in the Board’s ruling to begin with.

Under Canadian copyright law, fair dealing for the purpose of research or private study does not infringe copyright.[2] While the Copyright Act does not define “research”, the Supreme Court of Canada states that “’research’ must be given a large and liberal interpretation [… ] and is not limited to non-commercial or private contexts.”[3] In CCH, the Court held that lawyers carrying on the business of law for-profit are conducting research within the meaning of s. 29.[4] However, the Court states that photocopying court decisions does not constitute research in and of itself, but that such copying is a necessary condition of legal research and thus part of the “research process”. [5] In my opinion, it is at this stage that the analogy between facilitating the photocopying of court decisions and the posting of online music previews becomes somewhat disingenuous, as previewing music is not necessarily an integral part of a research process.

While the Supreme Court establishes a clear and substantial connection between photocopying court decisions and conducting legal research (whether for profit or not), the Copyright Board seems rather quick to come to its conclusion that “If copying a court decision with a view to advising a client or principal is a dealing ‘for the purpose of research’[ …], so is streaming a preview with a view to deciding whether or not to purchase a download or CD.”[6] While the Board qualifies this analogy, it does so by saying the differences between the two types of research are differences in degree, rather than differences in nature. [7] When one delves further into the CCH analysis, it is clear that the Court places considerable weight on the specific Access Policy that LSUC had in place in relation to its photocopying service. The Court expresses at the start of its analysis that in order to rely on the fair dealing exception, a person or institution must either show that its own practices and policies are research-based and fair, or that all individual dealings with the materials are in fact research-based and fair.[8] This implies that fair dealing exceptions should be dealt with on a case-by-case basis: if a claim of infringement is made against an individual user, it is open to this individual to claim their particular use falls under the fair dealing exception; and if a claim of facilitating infringement is made against a content provider, it is open to the provider to claim their policies and procedures place them within the fair dealing exception. However, to make a broad proclamation that music previews can be classified as fair dealing seems to go beyond the scope of the Court’s decision.

Finally, it is unclear why the Board felt it must decide this broad legal issue in the first place, since it was not raised by any of the parties to the hearing.[9] The proposal before the Board on SOCAN’s behalf was to charge higher tariffs to content providers offering previews.[10] The issue of whether previews constitute “fair dealing” for the purpose of research is extraneous to whether or not a higher tariff should be charged when a music file is sold with an option to preview. If previews are meant as “marketing tools” (as defined by the Board itself), it makes little sense from an economic perspective to charge a content provider a higher rate to allow potential customers to preview the music. This would surely discourage sites from offering previews which would not benefit the copyright owner, the content provider, or the prospective purchaser. However, regardless of economic sense, that decision should be up to the copyright owner. By classifying previews as “fair dealing”, the possibility is left open for content providers to profit from them with no benefit to the copyright owner.

—

[1] Re Statement of Royalties to be Collected By SOCAN for the Communication to the Public By Telecommunication, in Canada, of Musical or Dramatico-Musical Works (Tariff 22.A) (2007), 61 C.P.R. (4th) 353 (Copyright Board). Available online at http://cb-cda.gc.ca/decisions/m20071018-b.pdf.
[2] Copyright Act, R.S.C. 1985, c. C-42, s. 29. Available online at http://www.canlii.org/ca/sta/c-42/
[3] CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, at para. 51. [CCH]. Available online at http://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.html
[4] Ibid.
[5] Supra note 3, at para. 64.
[6] Supra note 1, at para. 109.
[7] Ibid.
[8] Supra note 5. (emphasis mine)
[9] Supra note 1, at para. 103.
[10] Supra note 1, at para. 24.

Posted in Infringement, Digital Downloads, Music Industry, IP, Copyright | 1 Comment »

Is content blocking coming to Canada?

January 24, 2008 by Ali Ahmed

According to this story in the Globe and Mail, the music industry is keen on getting Internet service providers (ISPs) to block traffic for users who sharing copyrighted music files. Canadian ISPs like Bell and Rogers already shape traffic to some extent by limiting the amount of bandwidth available to file sharing (and you couldn’t figure out why your torrents don’t work like they used to). But analysts say they are unlikely, at least for now, to follow ISPs in the US who are experimenting with content blocking - apparently for fear of a public backlash.

Nevertheless, at least one commentator isn’t overruling the possibility that Canadian ISPs might be open to content blocking if it didn’t cost them any customers in doing so. Any such possibility might become more likely if the government goes along with the idea. The much-awaited copyright reform probably won’t change things significantly on this front, but we’ll only know for certain when the new legislation comes out. It’s still no comfort that the market for Internet services is dominated by so few big players who could, well, conveniently agree to shut out illegal file-sharers.

A more likely possibility in Canada, but not any less scary, is that the new copyright act will have provisions requiring ISPs to identify and filter content that infringes copyright. In Michael Geist’s words, this ‘would be an enormous threat to the free flow of information online, it would curtail consumer rights, place new burdens on education and research, and create great harm to personal privacy.  Mandatory filtering sounds better suited to China rather than Canada…’ Internet content filtering would also be potentially unconstitutional , since right now ISPs cannot filter pirated content without also blocking fair use and legal file-sharing - posing problems for freedom of speech and freedom of access to information.

On another note, the same story mentions how while the recording industry’s overall revenue fell 10% in 2007, global digital music sales went up by 40%. This underscores the point I made in an earlier post and that I’m sure has been made elsewhere. The music and entertainment industry needs to stop looking for ways to stifle consumers through lawsuits, levies, and now filtering or blocking Internet content, and instead should look for new ways of generating business. Digital sales are obviously one lucrative means that can be further harnessed (e.g. digital movie rentals now available through iTunes).

Posted in Music Industry, Internet Sharing, IP, Copyright | No Comments »

Amazon’s Kindle and the Doctrine of Exhaustion

November 28, 2007 by Julian Ho

With much fanfare last Monday, Amazon.com released their wireless e-book reader that uses e-ink technology and allows users to purchase books wirelessly over Sprint’s cellular network in the United States. Though the product lacks the immaculate design of some other consumer electronics (read: the iPhone), it nevertheless hit the spot for many as the product sold out in a mere 5.5 hours.

As I began my ritual of packing my mounds of readings into my backpack to head off to the library in preparation of upcoming exams, I’d have to admit that the thought of just throwing in a device that is a mere 10.3 ounces into my bag would be a real treat. And how nice would it be if I didn’t have to stand in the horrendous Osgoode materials distribution lineup come January, and instead just be able to pull my books down from the internet via the cellular network on my Kindle. But then it dawned on me that if that were the case, I’d likely never be able to sell my textbooks after I used them. And therein lies the genius or grave concern of the device.

Certainly, it may seem like a bargain to buy a book that retails for $26.99 for $9.99 on the Kindle (like Stephen Colbert’s latest), and certainly, you’ll still be able to read it for that price, but what else don’t you get? Since the e-books are restricted with Digital Rights Management (DRM) technology, you won’t be able to redistribute the book to anyone. Sure, you can let someone else use your Kindle, but if you’re reading other books on it, that is unlikely to happen.

Read the rest of this entry »

Posted in Technology, IP, Copyright | No Comments »

I.B.M. to offer Office Software Free in challenge to Microsoft’s Line

November 19, 2007 by Tim van Zanten

IBM is going to offer free programs to compete with Microsoft’s Office programs. A new attempt for some good old Microsoft-bashing, IBM failed in 1990 to compete head-on with its OS/2 system, and an ambitious plan to challenge one of the most lucrative businesses for Microsoft. The more important question here is, not if IBM can compete with Microsoft, but seen from the view from IP, if this software today, must be protected by patents. While IBM now joins the open source software, Microsoft seeks standards for their software. Microsoft just lost a vote to ratify its Office Open XML as a global standard. But does software need to be protected or will patents on software just slow down technology and innovation?

Steve Mills, senior vice president of IBM said in a statement: “The lifeblood of any organization is contained in thousands of documents. When those documents are based on proprietary software, only future versions of the same software will be able to access that intelligence.” Proprietary software is software that is not free or semi-free and its use, redistribution or modification is prohibited, or requires you to ask for permission. Free software is a matter of freedom. It is software that comes with permission to use, copy and distribute. IBM now joins the open source software and that means more or less the same category as free software. They will share work and code freely.

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Posted in Open-Source, Technology, Patents, IP | 1 Comment »