CRIA Suddenly Against Private Copying Levy It Lobbied So Hard For

November 19, 2007 by Valerie Yap

With the recent Copyright Board preliminary decision which incorporates digital recorders as an audio recording medium[1]; you would think that the CRIA would be jumping for joy as the inclusion of digital recorders would generate more revenue. Furthermore, the CRIA has been lobbying for a private copying levy for years. However, this was not the case. This reaction is not as shocking as one may instinctively believe. The CRIA had acknowledged the rapid development of new technologies and have stated that “private copying will have to be brought under market disciplines in the future” and that the private copying levy was an interim solution [2]. They hoped that in the future they would have an unequivocal legal right to authorize or prohibit copying of their products, even for personal use. Over a decade later they realized that they cannot get everything they want. Perhaps now is the right time to bring the industry under market discipline. They were so focused and overly reliant in utilizing the Copyright Act in their business model that they turned a blind eye as to the long-term consequences of a private copying levy on the industry.

Such consequences are not hard to grapple. For instance, s. 80(1) of the Copyright Act (CA) which exempts copying for personal use does not mention the source of the musical work. It is therefore unsurprising that Justice Sexton stated (with regards to the lower court finding that there was no evidence that there was illegal downloading); “The danger in reaching such conclusions at the preliminary stages of an action without the availability of evidence nor consideration of all applicable legal principles are obvious”[3]. Thus, with enough evidence, placing a file on a shared folder may or may not be an infringement of a copyright. This argument may be further strengthened with the recent ruling in CCH case in which the SCC acknowledged that “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation”.[4] This is important as the word “rights” connotes something that is enduring; whereas a loophole connotes a transient privilege conferred by a certain body.

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Posted in CD Levy, Music Industry, IP, Copyright | 1 Comment »

Micropayment: Striking a Balance at the Crossroads of Information Policy

November 14, 2007 by Michael Shour

Over a decade ago, the seminal article, “The Digital Silk Road,” by Norman Hardy and Eric Dean Tribble[1] conceptualized the Internet as “a flee-market where cash and anonymity prevail.” This vision helped spark a flurry of activity and multiple attempts to develop a successful model for collecting payments for small online transactions. After numerous failed attempts over the last decade, certain micropayment systems, such as PayPal and iTunes, have attained considerable success. Micropayments—small transactions that are generally too small to be individually processed by credit card companies—are undoubtedly here to stay.[2]

To the dismay of eBay, the owner of PayPal, the popular online payment system, Microsoft and Google are both aggressively entering the fray to compete for dominance in the micropayment market.[3] While Google’s online payment system, Checkout, has offered a $10 credit to users to gain market share, Microsoft is taking a more creative approach and is allegedly planning to model its micropayment system on the point-based system it developed for Xbox Live. Using the Microsoft Points system users will be able to redeem points for new levels, maps, and characters for specific game titles.[4] Users will be able to purchase these points using Microsoft’s micropayment system. While this is not Microsoft’s first attempt to enter the micropayment market, it may be its most creative. If Microsoft is successful in launching its strategy on a broad scale, other micropayment systems will have to be increasingly ingenious to attract users and will have to offer them access to innovative, high quality content.

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Posted in Technology, IP | 2 Comments »

Anything Under the Sun Made by Man

November 14, 2007 by Stacey Siopis

In June 2007, the BBC reported, that scientists from the J. Craig Venter
Institute had applied to patent the method they plan to use to create
their synthetic organism. According to the article, the Institute is
claiming exclusive ownership of a set of 381 essential genes believed
necessary to keep an organism alive and the synthetic free-living organism
that has the ability to grow and replicate made using those genes.

According to the US Supreme Court in Diamond v. Chakrabarty, the above
title accurately represents the US’s approach to patent applications.
Writing for the majority in Harvard College v. Canada (Commissioner of
Patents), Justice Bastarache stated that the broad approach to patents
articulated in US courts, is not one Canadian courts have chosen to
follow. The court held that, a mouse is not a manufacture, as manufacture
denotes a non-living, mechanistic product or process, nor should it be
considered a composition of matter, as that phrase is best interpreted as
not including higher life forms.

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Posted in Patentability, Patents, IP | 1 Comment »

Verizon Communications, Inc. v. Vonage Holdings Corp: a Victory for Vonage or a Retreat by the Courts?

November 14, 2007 by Anna Stubley

In March 2007, the district court in Alexandria, Virginia held that
Vonage, a company which uses voice over IP technology, had infringed claims
of three patents owned by Verizon Communications, and that those patents were
not invalid as obvious. The judgement awarded $58,000,000 in damages and a
royalty of 5.5% on any future infringing sales to Verizon.

Following a denied request for retrial by Vonage, The US Supreme court
allowed Vonage to appeal the decision, based on the allegation that the District
Court had interpreted the claims of the patents too broadly. On appeal the court
partially remanded the March verdict, holding that only two of the three
patents were infringed, and vacated the royalty and damages award and directed
the lower court to retry those parts of the original case.

The outcome of this case can be viewed from many perspectives. Some claim
partial victory for Vonage, focusing on the withdrawal of damages. Others see
the confirmation of two infringements dealing a deadly blow to Vonage. But as
far as the world of patent law goes, the decision sends out mixed messages.

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Posted in Infringement, Patentability, Patents, IP | 1 Comment »

Save Face or Facebook? Why You May Want to Think Twice Before Posting Private Information Online.

November 14, 2007 by Zainab Somji

A recent CBC news story showed several Canada Border Service agents having
posted damaging comments and pictures on their Facebook profiles. The
pictures showed them partying and drinking while in uniform, and the
remarks revealed an inability to discern between certain foreign passports.

While the article will undoubtedly raise issues of national security, it
should give individuals who have an online presence, particularly Facebook
subscribers, another cause for concern. The report is testimony to the
fact that nothing on the Internet is truly and absolutely private,
especially on Facebook. It highlights the ever-growing but under-tackled
tension between technological development, intellectual property, and
privacy rights.

There is an unquestionable relationship between protecting IP and
protecting privacy; both involve a common desire to control distribution
of information. Friction can result if and when the party wishing to
control the IP in a subject matter is separate from the party desiring to
protect his/her privacy rights. In this case, while the border agents may
have wanted to keep their pictures and comments private, their posting of
the material on Facebook licensed to other parties the ability to control
that material – parties who most likely do not have the agents’ privacy
interests in mind.

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Posted in Electronic Databases, Privacy, IP | 2 Comments »

Canada to Criminalize Identity Theft

November 14, 2007 by Bobby Solhi

Canada is getting serious on identity theft! Will sharpening the teeth of the criminal law be enough?

To clarify the news headlines, Justice Minister Rob Nicholson’s has announced that proposed legislation intends to criminalize preparatory offences, such as gathering and/or trafficking confidential personal information for the purposes of deceit or fraud. While preparatory offences will presumably be explicit crimes, the crime of identity theft does not yet exist in Canada. As it stands, offences involving identity theft are prosecuted under several other Criminal Code sections such as fraud, impersonation, theft, and unauthorized use of a computer.

In view of the complexity of identity theft, criminal law measures are only one instrument in any comprehensive strategy to combat these types of crimes. Specific attention to privacy and intellectual property law considerations are paramount to a well-rounded solution.

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Posted in Identity Theft, Privacy, IP | 1 Comment »

Who Cares about Copyright Infringement of Mp3’s Anymore?

November 14, 2007 by Amanda Sheane

The recent closure of AllofMP3 is coming to an end. The site that was
closed in July 2007 has recently been reopened under another name and site
location. The site that has users pay a flat rate to download music was
thought to be in violation of copyright laws in Russia. However, a recent
court decision has held that the company’s former head did not infringe
any copyright laws due to lack of evidence.

Many were sceptical of the closure in the first place, some
citing the impending meeting between Bush and Putin as the reason for
closure. Russia who is bidding to join the WTO may have forced the site to
close to show Bush that Russia is tough on copyright infringers. However,
the recent court decision does not support such implications.

Some customers of AllofMP3 are reluctant to reinstate their
accounts for fear of losing whatever money they put in will be lost at the
hands of another possible closure. The site says that old subscribers can
use the money they had previously on the site but a new rate of $25 is
necessary to activate an account.

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

Tipping the Scale Too Far: User Versus Owner Rights in the iPhone Debate

November 14, 2007 by Jennifer Schwass

Like many cell phone customers, you might be irritated that your service
provider locks you in.  Shortly after Apple released its iPhone, hackers
developed unlocking software so the popular phone could be used on
networks other than AT&T.  Since it has not been made official that the
iPhone is coming to Canada, many buyers are happy that they can unlock the
iPhone for use on networks like Rogers and Fido.  However, should we
really be unlocking the iPhone?

Most people agree that unlocking the iPhone is a good thing.  It is not
surprising in this era of users’ rights, but this development demonstrates
that perhaps society has progressed too far in the direction of user
rights.  It is always important to remember the fine balance between the
users, the creators, the exploiters and industries, the public, and
governments.  In this case, the scales are tipping too far in the
direction of user rights.

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Posted in Technology, Digital Locks, IP | 1 Comment »

Google’s Personal Databases: So Maybe Google Can Get Copyright Protection, but is it Warranted?

November 14, 2007 by Rahmiel Rothenberg

So Google, at the behest of the European Union, is compiling what could be
the largest personal database the world has ever seen. Does this sound a
little Orwellian to anyone?

The privacy implications of Google’s actions should concern just about
every user of the search engine and internet. As rightly pointed out by
activist Cory Doctorow, giant databases of personal information could be
used to harass individuals saying unpalatable things and, more generally,
are possibly a major threat to freedom. Nevertheless, from a copyright
perspective, I wonder whether Google’s giant database of personal
information would be granted protection? And if so, is such protection
warranted?

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Posted in Electronic Databases, Privacy, IP, Copyright | 2 Comments »

Canada to Criminalize Identity Theft

November 14, 2007 by Rachel Chow

The move to criminalize identity theft comes amid pressing calls to modernize current privacy laws that have be made irrelevant by rapidly evolving technologies. Identity theft, that is the unauthorized gathering, possessing of or dealing in identity information, is not caught by the existing Criminal Code. While several activities integral to the unauthorized use of personal information, such as fraud, theft and impersonation are illegal under the Criminal Code, there remains a lacunae in the law which identity thieves have been quick to exploit. Moreover, it is inherently difficult to prove intent, a necessary element to prosecute an identity thief under the Criminal Code.

Justice Minister Rob Nicholson’s plan to criminalize identity theft is a welcome, albeit long overdue one. Identity theft has emerged as the crime of the information age, facilitating widespread criminal activity, even across borders. By criminalizing the gathering and trafficking in personal data for purposes of fraud, law enforcement agencies will finally have the teeth to intervene and clamp down on criminals before actual fraud is committed. Such a move will mitigate the financial and intangible losses caused to identity theft victims. It is estimated that identity theft costs at least $2.5 billion a year to Canadian consumers, banks and other businesses. (1)

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Posted in Privacy | 1 Comment »