Backblog | Technology Law

Last week Rogers advised the CRTC that it plans to drop Internet throttling for all customers by the end of the year.

The reports that the music industry lobby (along with the Entertainment Software Association of Canada and the movie lobby) is seeking the inclusion of SOPA-style provisions into Bill C-11 has generated considerable discussion online and in the mainstream media (CBC, Financial Post). Yesterday, Balanced Copyright for Canada, the group backed by the music industry, fired back with several tweets claiming that opposing their reforms would benefit "illegal BitTorrent sites"and "illegal hosting sites."

For many years, the most prominent critic of the Canadian online music market has been the industry itself. The Canadian Recording Industry Association (now known as Music Canada) has consistently argued that few would want to invest in Canada due to the state of our copyright laws.

The music industry may be ailing, but the emphasis placed by some on copyright reform may not be the answer. Michael Geist, speaking at the 2011 Nova Scotia Music Week, elaborates on reasons why.

The past 12 months in law and technology were exceptionally active, with legislative battles over privacy and copyright, near-continuous controversy at the CRTC, and an active Supreme Court of Canada docket. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2011 from A to Z:

The CRTC yesterday issued a ruling involving a Telus complaint over Bell's exclusive rights over NFL and NHL content for its wireless services and its inability to negotiate similar rights for mobile carriage. The Commission found that Bell gave itself an undue preference contrary to its 2009 new media decision and ordered Bell to take steps to ensure that Telus can access the programming on reasonable terms. While there are dangers of undue preferences in the mobile environment and of unfair behaviour arising from the vertical integration, it is hard to see how this case qualifies.

For most of the past hundred years, the Supreme Court of Canada heard the occasional copyright case with significant cases popping up once every ten or twenty years. That started to change in 2001 with a big case reaching Canada's top court every year or two. While that seemed like a busy schedule, it is nothing compared to the coming week, where the court will hear an unprecedented five copyright cases over the course of two packed days.

Earlier this week, I was at a public lecture given by Carolyn Hank, an information professor at McGill University, on archiving considerations for blogs. Archiving isn't a topic that stirs many people's interest (no offense to my archivist friends), let alone those in the notoriously now-oriented world of digital media.

It's time to get ready for Canada's anti-spam legislation which is expected to come into force early  in 2012. New violations have been listed, strong penalties laid down and a spam reporting centre established to support enforcement of the legislation.

Last week, the Canadian Radio-television and Telecommunications Commission released its much-anticipated usage based billing decision. While the ruling only focused on the use of data caps (or UBB) as between Internet providers, the issue garnered national attention with over 500,000 Canadians signing a petition against Internet data caps and the government providing clear signals that it would overrule the Commission if it maintained its support for the practice.

Napster Canada has advised its customers that it is shutting down operations effective December 16, 2011. The move comes weeks after Napster US became part of Rhapsody and users were assured that Canadians would be unaffected by the move.

Earlier this fall, I wrote about the return of file sharing lawsuits to Canada as the copyright owners of the film the Hurt Locker obtained a court order requiring three major ISPs - Bell, Videotron, and Cogeco - to reveal the identities of dozens of subscribers alleged to have downloaded the movie. I noted that the targeted Canadians would likely face the prospect of demands to pay thousands of dollars in order to settle the case (or spend thousands in legal fees fighting the claims in court).

The CRTC will release its much anticipated usage based billing decision this afternoon at 4:00. There is no shortage of backgroud information for those looking to get up-to-speed.

Copyright dominated debate at the House of Commons on Tuesday as Bill C-11 was the primary subject of debate. Digital locks was one of the most discussed issues (new levies were the other), with the main opposition parties lining up to oppose the bill due to the digital lock provisions.

The Supreme Court of Canada today issued its much anticipated ruling in Crookes v. Newton, a case that focused on the issue of liability for linking to allegedly defamatory content. The court provided a huge win for the Internet as it clearly understood the significance of linking to freedom of expression and the way the Internet functions by ruling that there is no liability for a mere hyperlink.

The CRTC released its fact-finding report on over-the-top video yesterday.  I'll have more to say on the report in my column next week, but in the meantime the money quote is:

Later today, the government will table Bill C-11, the latest iteration of the Canadian copyright reform bill that mirrors the previous Bill C-32. It was widely reported this fall that the government would reintroduce the previous bill unchanged, re-start committee hearings where they left off in March (with prior witnesses not asked to return), and move to quickly get the bill passed by the end of the calendar year. That seems to be what is happening with today's tabling and a new legislative committee to follow.

A few weeks ago, ComputerWorld published an article about a recent Epicor implementation failure and lawsuit. The suit alleges that Whaley Foodservice Repairs tried and failed to implement Epicor Vantage after an extended period. One of the key difficulties with the project was that Epicor’s professional services group had estimated that the implementation would cost $190,000, while the actual implementation cost ended up exceeding $1 million by the end of the project. In addition, the company alleges that its wasn’t able to use the system as expected after two years in production, requiring additional work and costs.

File sharing lawsuits involving the movie the Hurt Locker have been big news in the United States for months as tens of thousands of lawsuits have been filed against individuals alleged to have illegally downloaded the movie. The lawsuits have now made their way into Canada as the Federal Court of Canada has ordered the identification of subscribers at Bell Canada, Cogeco, and Videotron who face similar copyright infringement claims.

The federal government has launched a new anti-spam site at FightSpam.gc.ca.

The Ontario Court of Appeal has ruled that domain names are property.

Domain name disputes emerged as one of the first Internet legal issues in the mid-1990s as speculators recognized the value of domain names and the potential to resell them to the highest bidder. The growth of "cybersquatting" led to several unsuccessful attempts to establish a dispute resolution system.

The second day of the CRTC hearing on usage based billing left the Commission with three fairly divergent views on Canadian networks, traffic management, and the wholesale tariff (coverage from the Globe, Cartt.ca, Wire Report). While Bell focused on network congestion in its presentation on the first day, the cable providers and independent ISPs provided a much different perspective, focusing instead on incentives to invest (cable) and competition (independent ISPs).

The CRTC has issued a warning to Rogers in the ongoing dispute over its alleged throttling of World of Warcraft.

The CRTC hearing on wholesale usage based billing opened yesterday [July 11,2011] with Bell leading off in front of a packed room (coverage from the Globe, National Post, Quebecor, and Wire Report).

The Privacy Commissioner of Canada released her PIPEDA annual report yesterday [21 June, 2011] with a clear emphasis on the Internet (Google Buzz & Wifi, Facebook, eHarmony, etc.). The headline grabbing stories included an audit of Staples that found the company had frequently failed to wipe customer information from computers and other devices being resold in the stores and an investigation of eHarmony, the online dating site, that had led to changes to its customer data deletion practices.

Given the critical role it plays in communication, culture, and commerce, most people now recognize the importance of Internet access. My weekly technology law column (Toronto Star version, homepage version) notes a new report for the United Nations Human Rights Council takes Internet access a step further, however, characterizing it as a human right.

Apple has once again captured the attention of the Internet world with the unveiling of the iCloud, an online backup system that will allow users to instantly store their content on Apple computer servers so that they can be accessed anywhere from any device.

During the most recent election campaign, there was no shortage of debate over the so-called iPod Tax, a proposed levy on iPods and similar devices to compensate for copies of sound recordings. While the prospect of an iPod tax in Canada died with the Conservative majority, the existing private copying system remains unchanged.

Later today, it appears certain that the government will lose a non-confidence motion, spelling the end to the current Parliament and sending Canada into yet another election. There have been some legislative and policy successes since 2008 including the Anti-Spam law (C-28), a law involving ISPs and child pornography (C-22), and the recent launch of open government and open data initiatives.

Yesterday I blogged about how the Canadian Recording Industry Association has broken with creator groups and the Canadian Independent Music Association on the issue of an iPod levy.  While the creator groups continue to express their support for the levy, CRIA's Graham Henderson told government officials on September 27, 2010 that he disagreed "with some creator groups who are advocating for an associated levy on digital media storage devices."