Canadian Copyright Modernization Act—Whose shadow is in the fine print?

“Nothing says freedom like getting away with it.”
Long, Long Time by Guy Forsyth

Creators ignore at their peril the international reach of the U.S. based anti-copyright groups and their many benefactors in the consumer electronics industry—not to mention the significant network of radical anti-copyright bureaucrats turned out by radical anti-copyright professors around the world. There is a long tradition of interlocking board memberships in the corporate world, and in particularly with Silicon Valley startups and public companies (witness recent board changes by Google). It’s a little more difficult than usual to find truly independent folks in this space–even the “independent technical services firm” that Google retained to help them in responding to Congress about their latest PR catastrophe (wardriving and collecting user information from unprotected WiFi networks) is connected to Google, EFF and the Berkman Center (or as some call it, the Berzerkman Center) through the Global Network Initiative.

So don’t be surprised to see interlocking relationships among the anti-copyright groups that grew out of that environment—EFF operators show up on advisory boards of a variety of organizations, Lessig is also on many advisory boards, the Samuelson-Glushko network appears in many locations, Free Press hosts a tete a tete at a Google executive’s posh digs at the San Francisco St. Regis tower (key speaker—Lessig). So it is not surprising to see efficiencies in communication and idea hopping around the world.

An example of this would be the increasing use of online “petitions” or “letter writing” campaigns that are presented to legislators as a kind of plebiscite—yet it is usually an anonymous, pseudonymous or at least unverifiable “plebiscite” online and without borders yielding little value for lawmakers (see “Secret Ballots Not Secret Voters”). The UK went through this with opposition to the Digital Economy Act, and Canada had its own experience with this phenomena in the discredited letter-writing wizard sponsored by the Canadian Coalition for Economic Rights and promoted on the non-Canadian but seriously academic site Torrentfreak (OK, not really academic), by torrentfreaktivist Michael Geist (aka “he who shall not be named,” according to a prominent Canadian artist. Geist is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of intellectual property, with its almost 100% American advisory board, and the paid consultant to Industry Canada. SGCIPPIC’s external advisory board includes Lessig, the EFF legal director, the director of EPIC, and Pamela Samuelson, who is also a board member of EPIC and the EFF. You get the idea.) Not only will legislation from other countries be used to undermine or obfuscate creators’ rights in the U.S., but international artists are directly affected when treaty signatories do not live up to their obligations. (Witness the obfuscating use of EU activity by Consumer Electronics Association lobbyists to argue against artist rights at a recent conference in Washington.) It is important to keep an eye on the new Canadian copyright bill for what the consumer electronics lobby can do to us with it around the world.

The Devil in the Details

The new Canadian copyright legislation is subtle and requires more careful study than has been possible to date. There is a lot of “fine print” and potential obfuscation. But there are a couple of obvious nonstarters that are worth pointing out.

When reviewing any proposed legislation dealing with the online world, it is well to keep in mind that you have to assume that unscrupulous operators such as Limewire, Isohunt, or the YouTube founders, will do everything the law does not expressly prohibit plus about 50% of what it does prohibit as long as they can tie up creators in court with legal obfuscations or bully the creators who can’t afford to resist. This means that the law likely will be violated as soon as it is passed and may in fact create an ex post facto “gotcha” that will actually undermine its stated purposes. So—attention must be paid. Litigation delays and obfuscations are the principle tools of the bad guys. You don’t have to litigate your right to stop someone from stealing your car—you just call the police. If every victim of theft had to litigate their right to call the police, the law in its majesty, would fall on its face.

Safe Harbors for Pirate Ships

If the pirates didn’t know that Industry Canada bureaucrats have their back, this bill might scare them. The bureaucrats’ bosses in the Government of Canada seem to want to engage–at least, that’s what the Government intends to do. They’ve highlighted it in their fact sheet as a “key provision”: “Target the ‘enablers’ of online infringement”. Specifically, “[t]he bill gives copyright owners the tools to pursue those who wilfully and knowingly enable copyright infringement online, such as operators of websites that facilitate illegal file-sharing.” Were it true it might be enough to make pirates check their six.

Unfortunately for the creative community, the Industry Canada bureaucrats apparently have keel-hauled the stated goals of the Canadian government once again—the copyright bill requires that service has to be “designed” to enable infringement. Now this is a very interesting point because a similar point just came up in the Limewire case in New York. Limewire is taking great pains to obfuscate their intentions in promoting the commercial grade infringement for which their service was used. Consider this advice to online service providers from the Electronic Frontier Foundation: “A key strategy is to minimize the amount of information [online service providers] collect and store in the first place….

[P]eriodically scrub the logs to obfuscate all explicit or deducible [personally identifiable information of users]…. [P]roviders should ensure that user identity cannot be gleaned when matching two or more processed logs.” This advice is openly and notoriously posted by the EFF on their website.

So if a pirate “designs” their applications or web pages to “obfuscate” user information to make it hard for creators to bring infringement claims, is that system “designed” to enable copyright infringement? Oh, no. They are just providing a better user experience, right? So what does this language even mean? Another decade of litigation ought to sort that right out.

How many times have we heard from SGCIPPIC advisor the Electronic Frontier Foundation and their fellow travelers that the intent of Grokster, Morpheus, Isohunt, Limewire (any other losses I’ve left out?) as evidenced by their “design” was to give citizens a way to “share” The Bible, The Koran, the works of Shakespeare and the Grateful Dead. My, there sure are a lot of highly religious, Shakespeare-loving, Grateful Dead fans out there. The “design” is not intentional spoliation of evidence—oh, no, it’s just “automatic,” it’s just the machine making choices. It’s just the “design” of the machine—the homework just got eaten, it wasn’t intentionally fed to the dog by design. Of course, a human had to tell the machine what to do, but we won’t bother with that “obfuscation.”

Now why do we care about the EFF in Canada? Possibly because they are on the external advisory board for the Samuelson-Glusko CIPPIC? Possibly because there are many, many connections between S-G-CIPPIC and Industry Canada? Possibly because Isohunt’s lawyers made practically the same arguments in Vancouver attempting to save their client’s bacon as the EFF have made—proudly–in numerous courtrooms for people who were found liable for massive theft? Possibly.

Not only does the current bill force creators to litigate the intention behind the “design” of thieving services, the legislation also creates a “made in Canada” pirate bay. Specifically, the Bill creates safe harbors for hosting and caching infringing material that, as currently drafted, could shelter massive commercial pirate operators. This is surprising, given that the bill expressly carves out pirate services that enable infringement from the safe harbors it creates for “information location tools” (the Google exception) and network services (the ISP exception).

Why are the pirates liable when they enable stealing (secondary liability) but not when they directly host and cache stolen content (direct liability)? Ask the drafters—the bureaucrats at Industry Canada.

Could it be because Industry Canada bureaucrats believe that file stealing is good for you? (At least according to their dubious file sharing “study.”) The statutory exceptions in the new bill are so loosey goosey that you could drive a truck through them, to borrow a turn of phrase from Minister Clement. These exceptions could be read to wave the magic wand of legalization over massive piracy hosting sites– or, for that matter, sites dedicated to “enabling” piracy.
But what if a pirate can’t make it to the safe harbor—even with a bureaucratic letter of marque. Dangerous shoals ahead—statutory damages! Never fear—the bureaucrats drafters of the legislation have a lifeline for the bad boys. They’ve created a safe harbor from statutory damages applicable to enabling piracy. Why is there a carve out from statutory damages for the enablers? Given that the Canadian government’s stated priority is to target enablers, how in the world did the drafters slide this past their boss? I guess the safe harbor from statutory damages does target enablers—it just targets them with a pass. Who’s in charge up there?
How does exempting commercial grade piracy enabling services like the Pirate Bay and isoHunt from statutory damages jibe with giving copyright owners the tools they need to pursue commercial scale pirates? Ask the drafters. It makes no sense to me. It seems that the bill actually takes a tool away from creators who try to stop commercial grade theft.

I’m not an authority on Canadian law by any means, and certainly not Canadian criminal law, but it appears that the Bill not only creates an exemption from statutory damages, it also seems to omit criminal liability for online “enablers”. Sounds like a get out of jail free card to me—or at least a situation where victims of theft would have to litigate their right to call the police. Meaning that in Canada you could be criminally liable for mere distribution of infringing copies, but if you do it online—massive copyright theft–not only are you not criminally liable, you’re now expressly shielded from statutory damages. If I’m Pirate Bay, I’m saying helloooooo Canada.

The reason that legislatures establish statutory damages (or mandatory sentences for that matter) is because it is unreasonable to expect victims to prove exactly how they were harmed in cases where they clearly were—“obfuscation” notwithstanding. Of course, this is exactly where the pirates and their defenders want to place artists—having to litigate to a final non-appealable judgement all the losses attributable to massive theft on a packet by packet basis. And if you really don’t want to suffer from “obfuscation,” you’d need to prove that an unobfuscated user could have bought but didn’t as a result of using the “automatic” application.

The Industry Canada Music Study

But wait-there’s more. Industry Canada commissioned a study to “prove” that stealing is good for artists and file stealing actually increases CD sales. The only problem is that if you took the positive effect the study claimed in terms of each download’s positive impact on CD sales, and multiplied that by the number of downloads indicated by their survey, the net result was that file-sharing increased the sales of CDs by more than the number of CDs sold in Canada. In other words, if not for file-sharing, zero CDs would have been sold (a negative amount, actually).

So the Industry Canada bureaucrats have not only forced rights holders to prove actual damages – they’ve gone one step further and provided the commercial pirate services with Exhibit A in their defence – the Industry Canada commissioned study to “prove” rights holders victimized by piracy aren’t really hurt, and therefore are entitled to. . . nothing. The bureaucrats aren’t just creating piracy service safe harbors – they’re manning the pirate cannons and firing at the piracy victims.

Absurd. This is why legislatures have statutory damages.

So it seems to me that the legislation not only doesn’t create a disincentive for creators to sue end users, it seems like it actually has the opposite effect. So the choice is either sue or despair. This makes no sense. Maybe it does to the drafters, but you’d have to have what my old econ professor called a “funny preference curve.”

So whose goals are furthered by this section? The Government’s goals of making enabling infringement itself an infringement? Or someone else’s goal of legalizing Isohunt?Notice and notice and notice and notice and notice and notice and….

And what if a service is hosting infringing content – let’s say, posted by a customer who pays them to host the infringing content for the purpose of being downloaded by 20 million of their closest friends? Which the service knows or should have known is infringing (kind of like the long string of inducers, a list that is long and distinguished). The new bill does not appear to be have any knowledge requirement (or lack of knowledge requirement) and no obligation to take down infringing content. This is because of the hosting safe harbor that shelters online commercial grade pirates. Those Industry Canada bureaucrats who said the “information location tool” and “networking” safe harbors exclude the deliberate piracy enablers didn’t say anything about this safe harbor. Now how could they have “missed” that one?

In fact, if you have actual knowledge and complete control over infringing content, you’re required to do. . . nothing. Until the owner gets a final non-appealable court order that the particular pirate who posted the particular infringing material is infringing—on a packet by packet basis. I guess you need a court order to determine that the Complete Beatles Discography is infringing. Who knew? Somebody did—maybe the Industry Canada bureaucrats who drafted the defence of the wilfully blind. And the pirates are saying Goodbye Vanuatu, hellooooo Canada!

But what if there is a pre-release infringement – the owner doesn’t have time to identify the pirate, go to court, get a court order against the pirate, and prove to the host that the particular pirate is unlicensed to host the pirated copy of a movie—oh, say Wolverine II–that doesn’t come out the following week?

Sorry, Charlie. There’s no notice and takedown requirement, as there is in Europe, and the US and. . . well, just about everywhere to deal with the prerelease problem. Why? Because there’s another provision that uses the word “notice”: for “notice and notice and notice and notice and notice and notice….” Can’t have two provisions with the word “notice” in them.

Now all the file stealing community really hates notice and takedown rules—because it requires them to actually do something. Notice and notice is completely toothless. Not only that, but I think that most ISPs already do this, even in Canada. There’s nothing new that will be done — except that it seems like creators now have to pay ISPs to tell them there are pirates on their network. It’s not even clear to me that this is something ISPs actually wanted, but it does create an additional burden on creators which sounds like something Industry Canada’s drafters must have wanted. Just in case it wasn’t hard enough already. This is what passes for a “win-win” in some circles. It is important to understand that this is all about a very unseemly charade where grown people pretend that they are shocked, shocked that infringing activity is going on. And these operators and their apologists want the creative community to do all the monitoring of millions of users attracted by free stuff that they would otherwise have to pay for and then notify them of infringements. And this is the entire creative community—journalists, majors, independents, photographers, illustrators, songwriters, television producers, film companies, actors.

Not only are these creators supposed to monitor the entire Internet 24/7, but they are supposed to bear the cost of doing so. Now this is a neat bureaucratic trick to outsource law enforcement to people who generally lack the resources to enforce their rights. Which means the bureaucrats will never be responsible for enforcement. But the neatest part of the trick is that not only can creators not enforce their rights, they usually lack the resources to even complain. Another defeat for democracy and win for bureaucracy!

Notice and notice and notice and notice and notice….

Another big problem with the legislation is that it has no real teeth in its online notification procedure. All that has to happen is that a copyright owner can notify an ISP of a potential infringement and the ISP just has to notify the user that the ISP has received the infringement notice. OK, so then what? We all just sit there and look at each other?

Exactly what is it about the way Isohunt, the Pirate Bay and other commercial grade infringers conduct themselves that make you think that they would care any more about “notice and notice” than they do “notice and takedown”? Or even a lawsuit? And how is it that independent artists, directors, authors, illustrators, photographers or journalists are going to afford to take the next step after notice and notice? What five trust building events can the drafters of the legislation point to that would make anyone believe that mere notice will have any effect whatsoever?

And then there is my own pet peeve—what feedback loop do legislators have to find out if the process is effective? Revisit the law every five years? And what will that review look like if there is no data kept on the effectiveness of the notice and notice procedure?

And who would keep that data? Industry Canada? After the debacle of their gibberish music study?

Leading Canadian artist Loreena McKennitt puts it eloquently on the CBC:

“Most certainly, one of the most shocking parts of this whole debate is the lack of awareness or willingness on the part of many commentators to acknowledge the business model behind such entities as isoHunt. While they trade on the creative content for ‘free’, they are selling real estate on those websites for large sums of money. I would suggest the real David and Goliath lives here and many commentators in this and other forums have been taken for a ride.”

What is clear is that the drafters of the “notice and takedown” provision made a fundamental assumption that is proving the undoing of the professional creative class—they did not count on the rise of academics like Lessig and Geist to offer up a unifying ideology that would bring together through the magic of the Internet people who theretofore only met on places like Death Row.

It seems pretty obvious that this strategy’s goal is to bring about the fall of the copyright system by overloading and undermining the enforcement of copyright law. So if that is the strategy, a notice and notice and notice and notice and notice and notice and notice…wake up…system will cause that failure a whole lot quicker than notice and takedown – as the Industry Canada bureaucrats surely knew when they drafted Bill C-32.

The point being—if you really wanted to fix it, you would. And what would fix it would be the iTunes model—that huge technological paradigm shift called get a license. It certainly hasn’t hurt Apple’s business now has it? Apple just treats everyone else the same way they would like to be treated. Simple. Now where have I heard that before?

Only The Shadow Knows

These are a few nonstarters in the legislation. But how is it that Canada continues to put forward copyright legislation that doesn’t fix the problems the Canadian government says—I have to believe in good faith—that it wants to fix? Why is it the bureaucracy keeps failing to get it right? Why do they keep getting away with it?

Maybe they don’t want to get it right and maybe they are not worried because they have been getting away with it for a long time—which seems pretty obvious given what I think can fairly be called obfuscation on the part of the Industry Canada IP Directorate led by Susan Bincoletto in response to questions by the Industry Minister about the music study. You can’t really blame them. This business has been guided by an invisible mandarin (or group of mandarins) going on for over a decade. These mandarins have kept getting away with it minister after minister after minister. A friend of mine belongs to a group of ex-government employees called The Cockroaches. And the reason they call themselves The Cockroaches? Because they will outlast everyone.

So whose hand is it that keeps guiding Canada into these ditches? Is it Lessig? Samuelson? I’d say they are influencers. Is it Geist or his acolytes hired into key positions in government? You’re getting warm.

Is it a dedicated group of like minded people in the Industry Canada bureaucracy?

Only the Shadow knows.

See also: The Professor Has No Clothes

See also: The Industry Canada Music Study Part I

See also: The Industry Canada Music Study Part II

See also: Only The Shadow Knows Part 1

See also: Only The Shadow Knows Part 2

See also: A handy chart of government contracts with Lawbytes, Inc. f/s/o Michael Geist

See also: A Dedicated Group of Likeminded People

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist

See also: What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)

See also: Artist rights are human rights

See also: The Spy Who Consulted Me Redux: The Consultation of the Mikado

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist