To get things started, here’s Jay Aspin, MP (Cons.) for Nipissing – Timiskaming (say that 5 times fast):

We have studied this thing to death and it is time to move on

Well, it’s not quite “enough with this shit” but it’s close! Paul Calandra, Parliamentary Secretary to Heritage Minister James Moore (responsible for the Bill), has Mr. Aspin’s back and throws in a dig at the opposition while he’s at it:

…he has shown the direct parallel between what the opposition likes to do. It likes to delay bills. When it comes to the economy, it likes to talk down the Canadian economy.

Right, because the NDP hates economic growth. Fucking commies! Mr Aspin comes back to tell us what Canadians want, because he knows:

Canadians have waited for this legislation for over two Parliaments. It is time to get on the job. We want to get things done.

Of course you want to get things done! Here’s Scott Simms (L), in reply to that:

that begs the question as to why the Conservatives prorogued the House a couple of years (ago) if that were the case.

BURN. ZING.

Just to let you know it’s not only the Conservatives who engage in rhetoric, here’s Charlie Angus (NDP), talking about the harshness of some of the rules for academic materials:

Why does my hon. colleague think the government wants to treat researchers, academics, students and people doing medical and legal research as though they were pirates?

Well in the Government’s defense, my Constitutional Law Prof once pulled a sword on me and demanded all my doubloons. Charmain Borg (NDP MP for the riding of YOU WILL BE ASSIMILATED and the NDP’s official critic for digital issues, a job I think should go to me) also can lay down the rhetoric:

As we know, this government has a tendency to treat Internet users and researchers as criminals.

Well that may be not so much “rhetoric” as “true”. Here’s some good rhetoric from Marc-André Morin (NDP):

If I have understood correctly, students who do not destroy their course notes after five days will be presumed guilty of copyright infringement. It is a bit like suspecting someone of murder because they bought a bread knife.

I have told you guys time and time again copyright infringement is a dangerous crime. It’s just like murder! Oh and I totally cut myself on my bread knife the other day. Good thing I was wearing my bread-slicing neck protector, or I could be dead.

But what about all the poor starving artists who will be helped by this Bill? They are obviously the Conservatives main concern:

It matters for the artists of this country who have yet to emerge, cut their first album, produce their first painting or write their first play. It also matters for the superstars we all enjoy today who want to take their creations even further.

You know that’s important, because the person who said it was Chris Alexander, Parliamentary Secretary to the Minister of National Defence. Wait, what?

After what I thought were some excellent points by some opposition members, Paul Calandra came back and ripped the NDP a new one:

Mr. Speaker, just in that last question we heard everything that is wrong with respect to the opposition. Its members are so concerned with trying to get over onto this side of the House that they will say anything and do anything. It does not matter how wrong they are or how far from the truth it is, they will say it. They will stoop to any level in order to get over here. That is the problem with the change of leadership that party has had. It has gone from a principled party to one that cares about nothing and will stand for nothing.

Project much? Because Conservatives never want to be in power and never stoop to any level, right? It’s not like they robo-call to win elections or anything. And to be serious for a sec, that “change of leadership” comment is kind of sickening when you think about it. And he wasn’t finished:

Why do the NDP members talk down our artists, just like they talk down our natural resources, our Canadian armed forces and our economy? Why will they not for once put the interests of the Canadian economy ahead of their interest to try to make it on this side of the House?

I’m beginning to really not like this guy.

You know why I actually like reading these transcripts? For moments like this from the acting Speaker, Bruce Stanton:

Order. There is too much noise in the chamber. I would ask hon. members to keep their conversations low so that we can hear the member.

STFU, MPs! Well that was enough for Monday because it was the cocktail hour, so they got back to it Tuesday. There was some more bitching; short version is that the Opposition says the Government always limits debate, and the Government says the Opposition hates everything. This was an hilarious aside though, from NDP MP Charlie Angus again:

Mr. Speaker, first, almost as an aside, I would like to offer my condolences to the Liberal Party, because when the Minister of Canadian Heritage reaches out and says that he feels bad for the Liberals, I think those guys are in a really rough spot.

So apparently the House of Commons is only about who can get the best burn in. We’re really off topic now, and my brain is beginning to hurt from reading the same thing over and over said by different people. This literally went on almost all day. So let’s jump to the big finish, from the acting Speaker:

It being 5:45 p.m., pursuant to order made earlier today, it is my duty to interrupt the proceedings and put forthwith every question necessary to dispose of the second reading stage of the bill now before the House.

“Yea”

“Nay”

I have no idea WTF is going on anymore. They literally go on for more than three hours voting yea or nay on motions and things. Well, I suppose it’s better than a dictatorship.

I can’t wait to do this when C-11 goes to the Senate. I am sure those guys will be concise and to the point.

The case is Pridgen v. University of Calgary, and you can read the full decision here (PDF) if you like reading dense 44-page judgments of legal discussion. Since you obviously don’t, I’ll fill you in on the important deets. As usual, I read it skimmed it so you don’t have to.

Keith and Steven Pridgen were twin brother undergrads at the University of Calgary, and Professor Aruna Mitra was their prof for a course called Law and Society (irony alert). Professor Mitra was obviously not any of the students’ fave, as some of them created a FB group called “I no longer fear hell, I took a course with Aruna Mitra” (a little trite, but not bad). The group as usual had a Wall for posting, and the twins used it. Students posted things like she was “inept”, “awful”, “illogically abrasive” and “inconsistent.” My heavens, those U of C students are polite! You call that internet rantings? Kids today, I just don’t understand them.

Anyway, the Prof was none too happy with the group and the Wall, and told the University administration. The University jumped into action, and charged a bunch of students with “non-academic misconduct” under the U of C’s internal conduct codes for students. How did that turn out? Well:

Ultimately, Dean Tettey found all of the student members of the Facebook group guilty of non-academic misconduct, regardless of the nature of their comments and, in some cases, even though they had made no comments at all. (my bolding for emphasis on the ridiculous)

The lesson here is obvious: NEVER JOIN ANY FACEBOOK GROUPS, EVER. This Dean sent a letter to Keith Pridgen, putting him on probation for 24 months, asking him to apologize, and refrain from posting anything more defamatory about the prof. Before you jump to conclusions, the Dean also wrote:

I want to state emphatically that you are not being sanctioned for expressing your opinions on this site. You are at liberty to do so. It is important, however, that your views are not based on false premises, conjectures, and  unsubstantiated assertions that are injurious to individuals or institutions and their hard-won reputations.

Sure, whatevs. Anyway, the guys appealed to the University Committee of something or other, and the Committee upheld the Dean’s decision. The students would not be deterred, so they asked the Court of Queen’s Bench (the main “first instance” court in Alberta) to review the decision. The Court did the right thing (imho, I guess), and ruled that the decision breached the students’ rights under the Canadian Charter of Rights and Freedoms. Let us pause and bask in the glow of one of the rights that the Charter grants to all of us:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Well, the University would not stand for all this Charter bullshit, and appealed to Court of Appeal, saying that the Charter should not apply to the actions of a university. Because, really, why should a place that promotes academic thought be subject to freedoms? So that’s what this decision is all about. Actually, there were also a lot of administrative law questions, but that crap is boring so we’ll just pretend it didn’t happen.

Let’s pause again, this time to explain what the Charter really does. The Charter prevents governments and government bodies from infringing on the rights the Charter grants (in its section 32); subsequent court decisions have said that the Charter also applies to “governmental activities” that are done by non-government bodies. The Charter does nothing for private individuals in private actions. If I hire you to be my lackey (I am in desperate need of a lackey) I can infringe your Charter rights all I want. So that was the University’s argument, that the U of C (which is a public university) is not subject to the Charter because they are not part of government and / or this was not a governmental activity.

But the Court of Appeal did not buy that, as at least one of the three judges of the Court of Appeal stated that the Charter does in fact apply to the University when it disciplines students. Another  judge didn’t really care about that, as he found other reasons to side with the Pridgens. And the third judge said that whether or not the Charter applies (though reading his decision seems to imply he does think it applies), freedom of expression is protected in other ways.

So why does the Charter apply? Well, in Alberta they have something called the Post-Secondary Learning Act (PSL Act) which established the Alberta universities like the U of C and grants them all sorts of powers and responsibilities. So The Honourable Madam Justice Paperny decided that:

The issue is whether in disciplining students pursuant to authority granted under the PSL Act, the University must be Charter compliant. The statutory authority includes the power to impose serious sanctions that go beyond the authority held by private individuals or organizations. Those sanctions include the power to fine, the power to suspend a student’s right to attend the university, and the power to expel students from the university: PSL Act, section 31. Accordingly, Charter protection for students’ fundamental freedoms, including freedom of expression, applies in these circumstances.

W00t! Screw you, Professor (name redacted), you suck!

Then the judge did what judges are wont to do, waxed poetically about the issue at hand. This quote will be used by lawyers for years to come, I guarantee it:

One can no longer maintain a pastoral view of university campuses as a community of scholars removed from the rest of society. This does not mean that a university should not be able to direct its own affairs, certainly in academic matters, free from government interference. It should. Respecting Charter rights in disciplining students will not, in my view, inhibit it in the exercise of that institutional independence or the exercise of academic freedom. Rather, it will promote the institution as a place of discourse, dialogue and the free exchange of ideas; all the hallmarks of a credible university and the foundation of a democratic society.

Amen, sister! Err, I mean amen, The Honourable Madam Justice Sister.

So remember, when the Charter applies, you can say what you want (for the most part) on Facebook. But when the Charter doesn’t apply, you may not be protected on FB or anywhere else online. So to my newly-hired lackey who just tweeted “@almendelsohn you blow #realtruth” – you’re fired.

The case is Roadshow Films Pty Ltd vs. iiNet Ltd, but you will most likely just hear it referred to as the iiNet case. iiNet is the second largest ISP in Australia. The facts are actually pretty simple. A bunch of film studios banded together and, along with a group called AFACT (Australian Federation Against Copyright Theft), sued iiNet for copyright violation for people downloading their movies over BitTorrent. AFACT is one of those bullshit lobby groups that big media companies create to make them look innocent when they sue people (AFACT includes all the major studios). In 2010, the Federal Court of Australia ruled that while there was copyright violation by the individual downloaders, iiNet could not be held responsible for their users’ copyright violations because they were not authorizing the infringement, they were just providing a way to get onto the internet. Very sensible. Of course, AFACT appealed.

Before we get to the appeal, you are no doubt saying to yourself “who gives a flying fuck about Australian law? This is a Canadian law blog, dude” (I’m paraphrasing). Here’s a legal secret you may not know – Canadian courts cite Australian cases (what we lawyers call “jurisprudence”) all the time, along with American and British cases. The reason is simple – our laws find their roots in the same place, England.* So while a judge usually wants to cite a Canadian case first, if no case is “on point”, he’ll look at similar cases from other places to help him decide. Just to let you know I’m not bullshitting you, one of the most famous copyright cases in Canada, the Tariff-22 case from the Supreme Court, cites numerous cases from the U.S. and Australia. So for sure, a very important case in Australia will have an impact on Canadian courts down the road.

(*Well, except Quebec, where our law comes from France. Distinct society and all that.)

So back to our story. AFACT appealed, and the decision of the appeal came down 10 days ago (amusingly enough on 4/20), and the High Court… (drum roll)… dismissed the appeal. Big bad media companies lose for the second time! (now you understand the banner pic) Victory for common sense again! ISPs are just innocent bystanders (well, not “innocent”), as our own Supreme Court recently decided.

So why did the court decide that iiNet was not responsible for the copyright violation? Well, let’s do our thing and pull out some money quotes. I read, so you don’t have to:

Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants’ films on that customer’s computer with the result that the appellants’ films were made available online in breach of (copyright).

Exactly. Tough shit, AFACT. You can’t be successful suing someone if they have no control over what’s being done with a piece of technology. It’s like Seagram’s suing a fridge company because I am storing some illegal moonshine in there (I’m not, I swear).

Now interestingly, iiNet’s own terms of service with its users stated that the users wouldn’t do anything illegal with the internet service, or violate some third party’s rights. As a result, AFACT said iiNet should cancel the accounts of users who were violating their copyrights. Well sure, said the Court, but there’s a problem with that:

Termination of an iiNet account with a customer who has infringed will assuredly prevent the continuation of a specific act of communicating a film online using a particular .torrent file on a particular computer. Regrettably, however, on receiving a threat of such termination, it is possible for a customer to engage another ISP for access to the internet on that computer or access the internet on another computer using a different ISP. Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet’s power to command a response from its customers, or to prevent continuing infringements by them.

This Court is pretty sharp. They are saying that internet service is fungible, so by canceling the user’s internet service you are just throwing the baby out with the bathwater, and not getting at the root of the problem.

There is some interesting legal discussion about the difference between “authorizing” and “countenancing” but that crap will bore you if you’re not a lawyer, so let’s just jump to the big finish:

The appellants’ submission, that iiNet should be taken to have authorised the infringements unless it took measures with respect to its customers, assumes obligations on the part of an ISP which the Copyright Act does not impose.

To bring that back to Canada, our Copyright Act also does not have obligations on the ISP like mentioned here. Bill C-11 (the Copyright Modernization Act we’re still waiting for) might, as it forces ISPs to pass on notices from copyright owners to its customers, though ISP’s are granted some immunity from infringement when they are just acting as intermediary conduits to the internet. There are other changes that would come about with C-11 that might make the AFACT decision moot for Canada. But for now, it’s probably good law here too, that ISPs can’t be held liable for infringement via BitTorrent. It makes sense.

Let’s wrap up by saying, nice job Australia! G’day, mate.

[Ed.'s note for lawyers: note that all my quotes come from the majority (three judges) decision. There was a concurring (two judges) opinion as well.]

Let’s start with a basic fact. Despite all the talk about how Canada is quite liberal regarding its weed and crime, marijuana possession, purchasing, sale, or growing is illegal in Canada. Point final (well, except for some medical exceptions). Cannabis (and its derivatives like sweet sweet Afghan hash) is a Schedule II drug under the Controlled Drugs and Substances Act, which is a law packed full of crimes! The Act says that even possessing weed can get you up to five years less a day (s. (4)(4)(a)). Drugs are bad, mmmkay?

So let’s talk about weed and the internet. It’s everywhere! A Google search for “Marijuana Canada” returns 36,700,000 results. That’s a lot of grass! There are all sorts of websites selling all sorts of things. And they are all pretty much fucked.

Obviously, selling actual weed over the internet would be illegal. Even if you think you could get around it by, say, hosting the website in The Netherlands and selling buds from Jamaica, if you are Canadian I still think you’d be guilty. You’re receiving the cash in Canada; that’s enough of a “real and substantial connection” for the Canadian courts to have jurisdiction.

But what about marijuana seeds? Take a look at a site like Single Marijuana Seeds Canada. What a selection! Interestingly enough, if you look at Schedule II that I just mentioned, marijuana seeds are not mentioned, except to say that non-viable seeds (i.e. hemp seeds that won’t have THC) are totally cool in the eyes of the law. But we have the Courts to add to the criminal law, and in R. v. Hunter, the B.C. Court of Appeal said that:

The exclusion of non-viable seeds appears to admit of no other inference or conclusion but that viable seeds are to be included in the definition of illegal substance.

So Hunter (who was selling seeds) lost his appeal. Booooo! While Hunter was selling seeds out of a retail shop, as I am sure I have said before, if it has application offline, it has application online. Selling or buying seeds online is illegal.

Selling drug paraphernalia online is a huge business. Just ask Tommy Chong. But is it illegal? Just ask Tommy Chong! Of course Tommy was in the States, so we need to look to Canadian law. Oh man this sucks. Here’s section 462.2 of the Criminal Code:

462.2 Every one who knowingly imports into Canada, exports from Canada, manufactures, promotes or sells instruments or literature for illicit drug use is guilty of an offence and liable on summary conviction

(a) for a first offence, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both; or
(b) for a second or subsequent offence, to a fine not exceeding three hundred thousand dollars or to imprisonment for a term not exceeding one year or to both.

Whoops. $100k and six months for some ZigZags! Say a prayer for Toronto Vaporizer, JupiterGrass.ca and thousands of others just like them.

Let’s parse out 462.2 a little bit, because laws are really fucking hard to read sometimes. If you remove some of the list and pull out some words, you get this:

Everyone who… promotes… literature for illicit drug use… is guilty

WTF??? That is totally harshing my buzz, man. Some have called this censorship, and they really could be right. What does this mean for the grandaddy of Canadian marijuana websites, Cannabis Culture? It means they’re fucked. I’m seeing promotion of literature all over that site.

Oh, and I should mention that “literature for illicit drug use” is defined in the previous section of the Criminal Code (462.1) and it includes videos. Think there are pro-weed videos on the internet? Search YouTube for “marijuana fun” and you get 12,800 results. Nice.

Let’s try an experiment. I am going to promote this video about making weed brownies. Awesome video! Promoting illicit drug use. On the internet.

Come and get me.

In Fraserside IP LLP v. Gamma Entertainment Inc, a district court in Iowa ruled that it had no jurisdiction over a Quebec-based company that offered porn videos through a website, pornerbros.com (seriously NSFW, doesn’t even have a warning page). Fraserside alleges that the defendants are violating their copyrights and trademarks by showing videos owned by the plaintiff without permission. There are additional defendants and some more facts, but that’s really all you need to know.

The Iowa court, as a preliminary matter, needed to decide if the Montreal-based defendant could be sued in Iowa. This type of thing is obviously one of the most common questions in internet law, the internet being world-wide and so forth.

I guess I should take a step back for a second, and explain what “jurisdiction” is for the non-lawyers out there. Basically, in this context, it means simply “does a court have the power to hear a case?” Here’s a good little primer. Essentially there are two important jurisdiction types (there are others, but stay with me here) – subject matter and territorial. In Canada for example, if you have a case about immigration law, you go to Federal Court. That’s because Federal Court has subject matter jurisdiction over immigration law. On the other hand, an Ontario company would probably not sue a Vancouver company in a Quebec Court, because the Quebec court would not have territorial jurisdiction over two parties not from this province. It’s territorial jurisdiction that obviously is almost always a huge question mark in internet law, like in the Iowa case.

A good starting point to explain the rules is our own Civil Code of Quebec, which has a nice and neat set of rules about when a Quebec court can hear a case, rules that are pretty close to the rules you can find just about anywhere. There are a bunch of specific ones, but the most important one is the general rule that deals with “personal actions of a patrimonial nature” (basically suing someone for money), article 3148:

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

(1) the defendant has his domicile or his residence in Québec;
(2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec;
(3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec;
(4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship;
(5) the defendant submits to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

What you can take from this is that there needs to be some sort of connection to Quebec for the Quebec court to have territorial jurisdiction. Either the defendant needs to have some presence here, or something bad (the “fault” or “injury”) had to have happened here. This type of approach is what you’ll find just about everywhere, no matter how it’s phrased.

So what happened in Iowa? First you may ask, “why Iowa?” Delicious corn? While that’s undeniable true, the real reason is that the plaintiff is an Iowa corporation. And when you sue someone, you always want to be close to home so you don’t have to use those little hotel soaps. But as you can see from the Quebec law, being the plaintiff in the place isn’t a rule for a court taking territorial jurisdiction. It rarely is, and isn’t in Iowa.

So the Iowa court, faced with a Montreal defendant, had to find some sort of connection to establish jurisdiction. The judge says he needs to look at the “nature, quality, and quantity” of defendant’s contacts to Iowa. The defendant had no servers in Iowa, had no employees in Iowa, had no bank accounts in Iowa, had no anything in Iowa really. They had never done any advertising there or otherwise specifically done business there. Hmm.

One of the best ways to find territorial jurisdiction in internet cases is to find a user (of the website, or service, or whatever) in the place where you want to sue. That is quite often enough for most courts, though the more users the better. So that’s what the Iowa court looked at, evidence of Iowa users of pornerbros.com. Unfortunately for the plaintiff, the only evidence they presented of Iowa users was one of its own employees. Who no doubt joined the site for “research.” That was not enough for the court. The site has 2.5 million users daily; you’d think they could have found a few in Iowa.

In our Quebec law, we can see that if a fault was committed in Quebec, a Quebec court can have jurisdiction. In Iowa, if the “tort” (remember that word from last week?) is specifically committed there, that is enough too. So the plaintiff argued that the copyright violation was happening in Iowa because that’s where they are. Unfortunately for them, the judge said that defendant had not “uniquely or expressly aimed its tortious acts at Iowa.” I mean really, who would? So no go there either.

Thus the big finish:

…defendants do not have sufficient “minimum contacts” with Iowa such that the maintenance of this lawsuit would offend “traditional notions of fair play and substantial justice.”

So the plaintiffs are pretty much done with this case in Iowa. They should come on up to Quebec! While our hotel soaps may be small, the Montreal-based porn industry and strip clubs should more than adequately compensate.

Ed.’s note – I want to acknowledge and thank Barry Sookman for his daily Computer and Internet Law Update emails, which provided the starting point source material for this post (and several other previous posts on AM.com).

Debbie Douez was just hanging out on FB like we all do to varying degrees, when she “liked” a FB group called “cool entrepreneurs.” Like we’ve all done a hundred times. What happened then is that Ms. Douez’ name and picture popped up in her friends’ “sponsored stories” feed as an advertisement saying she liked the group. Ms. Douez believes that FB has used her image without her permission, and is suing them. Not only that, her very smart lawyers have decided that a bunch of other people in B.C. must have had this happen to them too, so they made it a class action lawsuit when they filed this last week. Ch-ching!

So what is the basis for the claim? Well, you can read the statement of claim if you like, or trust that my legal skills are good enough after I’ve read it to explain it to you. Tough choice I know. Anyway, the suit is based on section 3(2) of the B.C. Privacy Act, which reads:

It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

So that seems pretty straightforward, though you’re probably asking what a “tort” is. Simply speaking, it is how you can sue someone when there is no contract in 9 out of 10 Canadian provinces (guess which one is different). A classic tort is “negligence.” For example, you own a bar and fail to clean up a bunch of broken beer bottles on the floor, and someone injures themselves on the glass. You get sued.

No doubt you guessed that Quebec is the one province without torts. So could a lawsuit like this happen in Quebec? Why, yes! In fact, Quebec has traditionally been one of the strongest jurisdictions when it comes to protecting your privacy regarding your name or your image. That comes from the Civil Code of Quebec, which is our most important law. Article 3 gives you a right to privacy, and then article 36 gives us the money shot for a lawsuit like this:

36. The following acts, in particular, may be considered as invasions of the privacy of a person:
(…)
(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;

Bingo! So in both B.C. and Quebec, someone cannot use your image without your permission. Let’s get that Quebec class action rolling, people!

But wait a second. As usual, I will play Devil’s advocate. Or Facebook’s advocate (same diff?). When you join FB, like just about any website, you are automatically bound by their privacy policy and terms of use. So what do those policies say about these sponsored stories? Well, they’re pretty clear:

Many of the things you do on Facebook (like “liking” a Page) are posted to your Wall and shared in News Feed. But there’s a lot to read in News Feed. That’s why we allow people to “sponsor” your stories to make sure your friends see them. For example, if you RSVP to an event hosted by a local restaurant, that restaurant may want to make sure your friends see it so they can come too. If they do sponsor a story, that story will appear in the same place ads usually do under the heading “Sponsored Stories” or something similar. Only people that could originally see the story can see the sponsored story, and no personal information about you (or your friends) is shared with the sponsor.

Hmm. Well the statement of claim doesn’t go into this, but you can bet the farm that FB’s defence to this claim will. By using FB, you are giving consent (admittedly implied consent, but that’s still consent) for FB to do what it says it will do in their policies, like create sponsored stories.

The lawsuit really only acknowledges that these sponsored stories are happening, without mentioning this FB policy. No surprise there, any good lawyer knows to leave out important facts if they don’t help the client. The claim goes on to say that FB makes money off these sponsored stories, and that Ms. Douez and all people like her deserve to share in that revenue.

Assuming this all goes forward (we’re only at step 1 here), I see a much bigger picture developing – whether someone giving implied consent because of what’s in a website’s policies is good enough. That’s a HUGE issue in my world. It’s pretty established (so far) that you are bound by a website’s terms, even if you don’t read them. But given what could be a very high profile lawsuit here, and people’s general dislike of Facebook’s often-Draconian policies, things might change.

First, I should clarify a few things about the story. The dude is not going to prison, he’ll be under “strict house arrest.” And what got him that? Running a DVD bootlegging operation in his house. Mmm, good irony.

So you may be kind of surprised that copyright infringement can be a criminal act. I’m sure you all assumed that it wasn’t really a “crime”, it was just something that got you sued by a giant media conglomerate. Wrong! It is a crime. Sometimes. And you could go to prison for five years for it!

The first thing you should know about crime in Canada is that most of the crimes are listed in the Criminal Code. The second thing you need to know is that there are crimes in other laws besides the Criminal Code. From the the Income Tax Act to the Controlled Drugs and Substances Act to a bunch of other laws in-between, you can find “criminal” provisions about all sorts of stuff. And one of those other laws is the Copyright Act. Let’s take a look at section 42 of the Act, which I assume was what our dude was convicted under:

Criminal Remedies
Offences and punishment

42. (1) Every person who knowingly

(a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists,
(b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists,
(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,
(d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or
(e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists

is guilty of an offence and liable

(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or
(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.

For the non-lawyers out there (and the lawyers who haven’t seen a criminal problem since Bar school), I should explain that there are two types of convictions in Canada, as you can see in (f) and (g) – summary conviction and conviction on indictment. These make the two types of crimes in Canada – summary conviction offences and indictable offences, which are roughly equivalent to the “misdemeanors” and “felonies” you hear so much about on CBS crime procedurals and a thousand Law & Order’s. This copyright infringement crime is the technical third type of crime, which is called hybrid or mixed, meaning you can be convicted either way. So under the worst of this crime, you can go to prison for five years and get fined a million bucks. Yeesh.

The important thing to note about this crime is that it’s really about selling your illegally pirated works. Or distributing them somehow. Does five years and a million bucks sound like a lot for selling some ripped DVDs? For comparison, a first offence for illegally selling guns or ammunition has a maximum of only three years, and no fine. Which is worse?

So what does this have to do with internet law? Well a number of things. First, the RCMP who investigated this found the evidence in the dude’s PayPal account. Second, I presume the source files he burned onto DVDs came from the internet. He advertised the DVDs on internet classified sites. Sure, he “made” the DVDs (section (a) of the crime) in the real world, but his sales (section (b)) were on the internet. So yeah, this is important for internet people like you and me.

Now, I am sure you are saying to yourself “great, I don’t sell my illegally downloaded copy of The Hunger Games I got from The Pirate Bay, so I’m cool.” Not so fast! Let’s take a look at that subsection (c) again:

(c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright,

Now in case you don’t know, when you torrent something, at the same time you are downloading, other people are also downloading from you. That’s the way torrents work (read section 2.2 of my Masters Thesis for a good explanation, or as a sleep aid). Thus, maybe you are “distributing” an infringing copy. And also maybe, it is prejudicially affecting the owner of the movie’s copyright. Hmmm.

Look, don’t panic, I am sure no Crown Prosecutor or RCMP investigator is wasting their valuable time with the likes of you, individual downloader. I’m just saying it’s theoretically possible. DESTROY THE EVIDENCE. BURN THE TAPES!!!! Err, DON’T BURN THE DVDs!!!!

Copyright infringement – the crime of the century.

So I thought I would write a huge piece about freedom of expression, the internet, the future of copyright, and everything. But first, I felt that in the name of journalism (?), I should try to confirm the findings. Here’s what transpired over MSN (with the name of the recipient withheld for, uh, privacy?):

Well that was a bust. At least you’re spared my rantings. For today.

Clause 18 of C-11 creates a couple of new types of copyright infringement. First, it creates a “secondary infringement” for “lessons” which is all about education or some such crap I don’t care about. The next infringement it creates however I do care about, for it is about facilitating, or “enabling”, copyright infringement on the internet. And what at first glance looked like a tweak made by the Committee is actually a pretty significant change. Here’s how the article used to read (note the “2.3″ at the beginning is because Bill C-11 creates a new section 27(2.3) of the Copyright Act):

(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

So what we’ve got here is a new secondary liability over the internet. Secondary liability just means that it is not the person who actually infringed the copyright who is liable, it is some “secondary” person who helped make that first person’s infringement possible. So in this case, someone who provides “a service” over the internet (e.g. a torrent file search engine) which another person then uses to infringe copyright over the internet is just as liable as the person who actually did the downloading. When this secondary infringement was released oh so many versions of this Bill ago, it was widely seen to be targeting the likes of isoHunt, so important to you (us) Canadian Torrenters (see this piece for example).

Anyway, with this whole new type of copyright infringement, obviously the government wants to make sure they get it right to satisfy their big media overlords. Here’s the way the clause looks now, after the Committee tweaked it:

(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.

Can you spot the change? Go ahead and read them both again, I’ll wait. (…) Figured it out yet? No? OK, I’ll tell you.

This phrase:

a service that the person knows or should have known is designed primarily to enable acts of copyright infringement

has been replaced by this:

a service primarily for the purpose of enabling acts of copyright infringement

The lawyers out there will immediately recognize the significance of removing the phrase “knows or should have known.” Even the non-lawyers will recognize what this does is remove the knowledge element of the infringement. This means that it is now completely irrelevant what the secondary infringer had in his head. If the service is found to be an enabler by some objective (presumably court-imposed) standard, and there is subsequent copyright infringement, there is secondary infringement as well. Point finale.

Why is this important to isoHunt (for example)? Well Gary Fung, founder of isoHunt, always says (at least publicly) that he doesn’t really know what his users are doing, his site points to torrent files that don’t lead to copyright infringement, etc. Now, that line is completely irrelevant. It doesn’t matter what Gary Fung says he thinks – he’s screwed no matter what, because for sure some court will hold that isoHunt is “a service primarily for the purpose of enabling acts of infringement”.

The new version of this section will make it much easier for a court to find this secondary infringement with the removal of the knowledge requirement. At least the word “primarily” is still there, which would have made the provision that much worse.

But, wait, there’s more! What’s really interesting here is that C-11 follows up this definition of liability with a list of six factors that a court can consider when deciding if there is in fact secondary infringement. I am going to put two of them here:

(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;

(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;

What’s interesting is that these two factors seem to be designed to get at the heart of the knowledge requirement from the old version. Yet the government did not change the factors at all with the new amendment. Simple oversight or government stupidity? I report, you decide.

Your takeaway for the day – isoHunt is fucked.

So the blog post is actually a decent little tour of the history of copyright. He (correctly) explains the values behind copyright, and the notion of balance, which our Supreme Court has repeated a thousand times (estimate only):

the law of copyright is concerned with finding an appropriate balance between promoting the public interest in the encouragement and dissemination of the works of the arts and intellect and obtaining a just reward for the creator

So far so good. But he dives right in:

Michael Geist’s ideological antagonism towards copyright is an extreme departure from traditional values about it.

Rowr! I’m not sure how true that is. I don’t think I’ve ever heard Geist say that all copyright should be abolished or anything. Now that would be an extreme departure. Talking about Bill C-11, Sookman writes:

Much of the information is inaccurate and emotionally super-charged to garner as much visceral reaction as possible. A significant portion of it originates from Internet activist Michael Geist and is repeated throughout the blogosphere and in the traditional news media, usually with no attempt at analysis.

Like on this site! Actually I do have to sort of agree here, most media outlets take Geist’s views as gospel without any critical thinking. And he is on the media quite a bit (like me!), as he’s everyone’s go-to guy. I was once emailing with someone pretty high up in the press, and I said to him that if he ever needed a “non-Geist” opinion on something I would be happy to give it. This person replied with multiple LOLs of truth.

Sookman goes on:

Given his values about copyright, it is not surprising that Michael Geist opposes every attempt to make intellectual property laws effective.

Zing! Sookman goes on to use some of Geist’s public words against him. Some of it is pretty compelling, but to say Geist “opposes every attempt” is just wrong. If he opposed every attempt, he would have called for no copyright reform at all, yet he called Bill C-32 (C-11′s predecessor) “flawed but fixable.” I just think that Sookman and Geist have pretty opposing views on what “effective” IP laws are.

What have we learned from this little exercise? You should always take anything lawyers say with a grain of salt, no matter which side of the spectrum you’re on. And lawyers can be articulate and bitchy simultaneously.

This has been another episode of As the IP Law World Turns.