For the London Free Press – April 2, 2012 – Read this on Canoe

Have you ever considered what a service provider – such as a cellphone company or social networking site – can do with the photos and other content you send or post using that service?

Sometimes the terms of use of the service provider are so broad they give the provider the right to use it for things such as their advertising, or to be able to sell user content for the service provider’s own gain.

Terms of use, or terms of service, are the rules we agree to when we contract to use a service. That might take the form of a written contract we sign when we purchase a cellphone, or the click-wrap agreement we click “I agree” to when we subscribe to a social media service such as Facebook or Pinterest.

Terms of use often include some form of licence or permission language stating what the provider can do with content users send or post using the service. Defining that is important to make clear what rights the service provider has to that content. In most circumstances, that licence language should grant the service provider rights to the content that it reasonably requires to provide its services.

Occasionally, these licence permissions are drafted overly broad and grant the service provider the right to do almost anything it wants with the content.

For example a cellphone provider was recently criticized for language that said it: “will be free to copy, disclose, distribute, incorporate and otherwise use the content and all data, images, sounds, text, and other things embodied therein for any and all commercial or non-commercial purposes.”

In most cases, such overly broad language is not a nefarious plot to acquire user content for the service provider’s own use or profit. It is more likely the result of contract drafting that has not been thought through properly.

The drafter was rightly thinking the terms of use needed some licence language to define what the service provider can do with the user’s content. And the language does indeed give the service provider the rights it needs. So from that perspective the clause works.

But the clause is a failure because it grants rights that the service provider doesn’t need, and doesn’t want. And it fails to look at the issue from the perspective of what uses a user would be comfortable granting to the service provider.

In other words, the clause does not balance the rights and needs of the parties.

So why would a service provider care, given that most people don’t bother to read terms of use?

Some people do read them, and eventually the language will end up being publicly criticized. That doesn’t bode well for the reputation of the service provider, and it may never know how many potential users voted with their feet and didn’t use their service because of the overly broad language.

That’s the title of my Slaw post for today.  It reads as follows.

Here are some of the sites that are going dark today, or changing their home pages in protest over the proposed US legislation. For more information on why this legislation is so bad, check out these sites, or search for “SOPA” on Slaw or Techdirt.com, or just Google it.

Wikipedia:

Boing Boing

WordPress

EFF

This is Google’s US site. Google’s Canadian homepage does not seem to be affected.

Michael Geist

There is proposed legislation in the US that would give broad rights to block entire web sites based on mere allegations that a small part of it might have some infringing content.   The legislation is backed by the entertainment industry as an anti-piracy measure.  There is a groundswell of opposition against the legislation, but it is still very possible that it could become law.

Mike Masnick of Techdirt has a great article explaining in detail what the problem is.

If you have posted photos online and want to know where others might have used them – or if you want to use a photo you have found but are nervous about the poster’s claim that it is free for use, you can search images to see where they appear on the web.

That’s not to guarantee that the searches will be comprehensive, but the information could be valuable.

The photattorney blog mentions 2 ways to search.  One is to use tineye.  The other is to use Google Images.

See the post for more detail.

That’s the title of my Slaw post for today.  It reads as follows.

For the record, I don’t support the NDP, and their fiscal policies are plain scary. But that doesn’t mean that their viewpoints on everything ought to be ignored. The NDP tech policies on issues such as net neutrality, usage based billing, and copyright are in many ways more compelling than the Conservative policies. Now that the Conservatives have a majority and don’t have to fight for their existence every day – lets hope they take a step back, take a deep breath, and take a fresh approach to tech issues.

The prosperous future of Canada is to a great extent dependant on the use of technology, the internet and wireless access, and all things digital. That is true for consumers, for business, and for innovators. It is important to have policies that foster that. That point will no doubt be made repeatedly at the Canada 3.0 Conference taking place today and tomorrow.

On the proposed lawful access bill for example. Either drop it all together, or take another serious look at it. Mr. Harper has said that the rights of ordinary citizens should be more valued than the rights of criminals. So recognize that individuals have privacy rights that ought to trump the ability for law enforcement to go on random warrant-less fishing expeditions into our digital lives. If that isn’t a good enough reason, recent data breaches should teach us that the easiest way to prevent a data breach is not to have the data in the first place. Don’t tempt fate by requiring service providers to retain information on customers that is not needed to provide their services. As well, requirements to retain data are in effect an additional tax on the tech sector.

Copyright reform has been a hot topic for years, with many controversial bills being drafted but never passed. One of the issues that concern many of us are provisions that support digital locks. Those provisions do more harm than good, and in essence turn copyright policymaking over to rights holders. There is also the appearance – reinforced by recent wikileaks documents – that too much consideration is being given to the pressures of foreign entertainment lobbies and governments. The NDP policy on copyright merits consideration when drafting the next bill, as it seems to take a more balanced made in Canada consumer friendly approach.

For anyone interested in an overview of copyright as it applies to music and music videos, there is a good, easy to read article on the law law land blog. It is based on US copyright law, and while some of the details are a bit different in Canada, the gist is the same. 

The article uses the Rebecca Black Friday video to put the law in context. 

And for the record, I’m posting this because it is a good article on what can be a confusing subject – not because it has anything to do with that mind-numbing trainwreck of a video.

For the London Free Press – January 10, 2011

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The year 2010 was a significant one for technological innovation. We saw the continued advancement of the smart phone, the rise of the touch screen tablet in the guise of the iPad and Samsung Galaxy Tab, and the introduction of electric cars that plug into a standard household socket in the Chevrolet Volt and Nissan Leaf.

So what can we expect in 2011? Here are a few things that might be worth keeping an eye on:

Windows Phone 7: Windows Phone 7 is not a physical device like the iPhone but rather an operating system that will be offered on a variety of phones built by various manufacturers. Its features and creative take on the user interface mean Windows Phone 7 will be a strong competitor in 2011.

But with the level of competition in the smart phone marketplace, Windows Phone 7 faces an uphill battle. Its adoption may suffer from a lack of available applications, especially compared to Apple’s app store, which has a significant head start in app volume.

Windows Phone 7 sales in Canada will also probably be slowed by carrier lock issues, as most consumers have to wait out the three-year contract with their existing phone before they can upgrade. That is a serious impediment to phone sales in general, compared to the two-year term that is normal in most countries.

Kinect: Kinect is a controller for the Xbox 360 video game console. The Kinect allows users to control and interact with the Xbox 360 without using a handheld controller. Essentially players operate the console and play games by using hand gestures and body motions.

The Kinect is selling extremely well. In fact it has become so popular that it was hacked immediately following its release to enable it to be used with PCs and other devices.

Look for the Kinect to receive official support from Microsoft for use with PCs by year end. Controlling computers this way may lead to some interesting applications.

Anti Spam Law: Bill C-28, the Fighting Internet and Wireless Spam Act, has just been passed. It will come into effect sometime this year after its regulations are drafted.

The implications of this legislation for a typical business or organization are not fully clear. The language of the legislation has the possibility to affect how typical businesses communicate, as things that we may not consider to be spam might get caught by the act. Stay tuned for more detailed commentary on this as the year progresses.

Copyright Reform Bill: Bill C-32, the Copyright Modernization Act, is the latest attempt to update the Copyright Act. Controversial elements include digital lock provisions that will allow publishers to trump user rights.

It is likely this bill will become law, unlike the several failed attempts over the past several years.

One certain thing about copyright reform is that the details will make some people happy and will disappoint others, depending on whether one is a consumer or producer of content.

For the London Free Press – December 13, 2010

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Proposed legislation could have major implications for businesses, consumers

Development and innovation of technology inevitably breeds new laws to regulate that technology. For lawyers practising Information Technology law, there is a considerable amount of potential new law to digest.

For example, Bill C-28, the Fighting Internet and Wireless Spam Act, brings in several anti-spam measures. While this is welcome by most people, the language may take in things we may not consider to be spam and affect how typical businesses communicate. Since the penalties are significant, we need to take a close look at this act before it takes effect to understand what it will mean for a typical business or organization.

Bill C-29 would make several changes to the Personal Information Protection and Electronic Documents Act. Most of these were expected – and welcome – because they address issues arising from the current law.

But there are new parts that could use clarification. Language that tries to clarify what constitutes “lawful authority” to release information to law enforcement when requested doesn’t make clear what proof or threshold of proof is required. It also contains language requiring that the privacy commissioner and affected individuals be notified of breaches in some circumstances. The language has threshold tests, which on the surface are not as clear as they might be. If this language stays, it may take a decision by the privacy commissioner and/or a court to clarify the threshold.

Bill C-32, the Copyright Modernization Act, is the latest of several attempts to amend the Copyright Act. Controversial elements include digital lock provisions that would let publishers trump user rights. Much has been written about this, including a book entitled From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda, written by several copyright experts.

Bill C-51, which would amend the Criminal Code, Competition Act and Mutual Legal Assistance in Criminal Matters Act a.k.a. Investigative Powers for the 21st Century Act, is the latest effort to give law enforcement more access to electronic communications.

But what proponents call “lawful access” bills, critics deride as “awful access” bills. They question whether making things easier for law enforcement is worth the significant erosion in privacy and extra costs to Internet service providers.

These bills may have far-reaching practical implications, not only for many businesses and organizations, but also for consumers.

That’s the title of my Slaw post for today.  It reads as follows.

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the ”awful access” camp.  Expect more commentary on this from both Michael and David.

For the London Free Press – August 16, 2010

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[UPDATE: Also take a look at this related Techdirt post entitled The Insanity Of Music Licensing: In One Single Graphic ]

Radio royalties are complex.

On July 9, 2010, the Copyright Board of Canada issued its long-awaited Commercial Radio tariff and reasons. It dealt with payments radio stations must pay to copyright collectives to obtain rights to play music.

The rights to use most music flows through copyright collectives that collect royalties from broadcasters and other users, so they don’t have to deal with rights holders individually. The collectives in turn pay the royalties to the rights holders.

Even with the collectives taking the place of rights holders, the various copyright payments broadcasters must pay for music are complex. Radio stations must pay for six different rights.

The board stated:

A Canadian radio station that broadcasts recorded music off a server reproduces and communicates musical works, performers’ performances and sound recordings. Four copyrights and two remuneration rights must be accounted for.

The board estimates that commercial radio stations will pay a total of $85 million annually in royalties under the new rates, an increase of $13 million over previous rates.

Of the $85 million in royalties, the board estimates $51 million will go to SOCAN, $13 million to Re:Sound, $11 million to CSI, $10 million to AVLA/SOPROQ and $200,000 to ArtistI.

SOCAN administers the exclusive right of the owner of the copyright in a musical work to communicate it to the public by telecommunication for most composers, authors, and publishers.

The second and third rights are the remuneration rights that performers and record companies enjoy when a recording of a musical work is communicated to the public by telecommunication. Re:Sound administers these rights for most eligible performers and makers.

The fourth set of rights is the exclusive right to reproduce a musical work. CSI, SODRAC and CMRRA administer these rights.

The fifth set of rights is the exclusive right to reproduce a sound recording. AVLA and SOPROQ act for most record producers, record companies and artists.

The sixth set of rights is the exclusive right in a performer’s performance to reproduce the performance for a purpose other than the purpose for which authorization was given. ArtistI, ACTRA PRS, AFM Canada Artisl, and others administer this right.

The estimated $85 million in royalties payable by radio broadcasters does not include instances where collectives have not filed tariffs. As a result, the $85 million estimate may be understating the monies payable by radio broadcasters.

The Commercial Radio tariff is a consolidation of several proposed tariffs filed in 2007 and 2008. If the board’s decision ends up being judicially reviewed by the Federal Court of Appeal, a final decision will likely be over a year away.