I should start out with some disclosure here. As mentioned in the Toronto Star article linked above, I represent an interested party in the Brian Burke case, one of the website operators on which the alleged defamation took place. He is not actually one of the defendants, but undoubtedly will get sucked into the case sooner or later.

I should also disclose that technically, I am not a defamation expert. My real expertise (if I have one) is copyright law online. But when you are an “internet lawyer” like me, you have to deal with all kinds of areas of law, and defamation is certainly one of them. Like I joke in some of my internet law presentations I give, I have represented my share of people who have told me “that bitch called me a bitch on Twitter.” It’s a messy world out there on the intertubes.

Let’s quickly look at the facts of the two cases. Brian Burke, ex-GM of the Toronto Maple Leafs, is suing 18 anonymous people (under their usernames like “Slobberface”) for saying online that Burke was the father of sportscaster Hazel Mae’s baby. For a good overview of the case, you can listen to my appearance on TSN690, where we got into a good in-depth discussion of the law and some of the issues when suing anonymous people on the internet. One of the interesting aspects of the case is the makeup of the 18 defendants. Sixteen of them were just making comments on blogs or message boards, and while the other two had their own blogs, these were personal little WordPress blogs probably read by 50 people on a good day. We’re not talking about the Huffington Post here.

The B.C. teacher case is particularly tragic. Lee David Clayworth met a girl while teaching in Malaysia. They dated, but the relationship went south. The ex then went on an internet rampage posting all kinds of lies about how he was a pedophile and other nastiness. She broke into his computer to send nasty emails posing as him, and stole naked pictures of him and posted them online. Clayworth got a Malaysian court judgment against her, but she fled the country. The Malaysian court ordered her imprisoned. But the fact is, all the crap about him is still online, and he is having trouble getting a job most likely because of it. The case really brings home the problem of policing the internet across borders.

So what is the law with regard to online defamation in Canada? Well, we really don’t have any! I kid, I kid. What is true is that we really have no specific online defamation law in Canada. We take “traditional” defamation law and apply it online. I should note that for the most part, defamation comes in two forms – libel is defamation either written down or in some other fixed form (cartoon, video) so that it’s permanent, while slander is defamation spoken orally. It’s why internet defamation is sometimes called “cyber-libel”. To prove defamation in Canada, you only have to show three things, as summarized in one of the Supreme Court’s most recent pronouncements on defamation, Grant v. Torstar:

1. the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. the words in fact refer to the plaintiff; and
3. the words were published, i.e., that they were communicated to at least one person other than the plaintiff.

That is a very low bar to clear. Once you show these three things, the Court just assumes that the words were in fact false. It would be up to the defendant at that point to prove they are true, which is a defense to defamation. Some other defenses include privilege (of two kinds, which I am not getting into because already you’re bored) and fair comment (which requires a “lack of malice” and must be done in “a matter of public interest”). But truth (technically called “justification”) is always the best defense.

Except in Quebec! As usual, Quebec is different. In Quebec, to sue someone for defamation, you have to use the general rule of civil liability in Article 1457 of the Civil Code. That means you have to show the defendant committed a fault, that the plaintiff was damaged, and that the damage was caused by the fault. If you prove all those things, there can be defamation, even if the words were true, as held in the Néron case from the Supreme Court.

Man that’s a lot of law you guys! I’ll stop now. Maybe. I do want to point out one of the interesting differences between Canadian and U.S. law. As mentioned, Canada has a very low bar for defamation. In the States, if you are a public figure and want to sue for defamation, you must prove that the publisher of the words had actual malice (this comes from New York Times v. Sullivan). That is a very high bar. And undoubtedly why Brian Burke has initiated a lawsuit in Canada and not the States.

What does all this mean to you, online?

KEEP YOUR FUCKING MOUTH SHUT. Sorry, sorry, I get emotional. You think you are safe online making defamatory comments, you are not. Brian Burke is attempting to prove that. The law of defamation applies online as it does offline. The same standards apply. And even if what you wrote is on a tiny little corner of the internet that no one reads, that is still going to count as “publication” under the 3rd criteria above.

And even if you do it anonymously or under some username, you can still be sued. Just look at the Brian Burke defendants. As a first step, his lawyers will go into court to attempt to get a court order to turn anonymous user names into real people. There is plenty of jurisprudence to support that this is possible (check page 2 of this PDF for a great breakdown of the issue), and technically it is not hard because of IP addresses and the technical logs kept by every website and Internet Service Provider. As I am sure I have written before, you are not anonymous on the internet, even if you think you are.

The one piece of good news is that if you merely link to content that is defamatory, you can’t be liable yourself for defamation. Thank you, Supreme Court!

What if I am the victim of online defamation?

The Clayworth case shows how horribly wrong things can go when you are defamed online. Clayworth seems caught in a Kafka-esque nightmare. Obviously my first advice is to consult an attorney :). You will have some recourses. If the defamation was made on a reputable website, you may have some success in getting the posts removed. Unfortunately, many websites are not reputable. And search engines will be of no help. Google is notorious for never removing search results. They say it is not their job to police the internet, they are only linking to content.

The Clayworth case also highlights the problem with cases that cross borders. He won a judgment in Malaysia, but no American company is going to pay attention to that. If you get an American court order, you’ll be successful getting content on U.S.-based websites removed. But remember, it will be easier to get a judgment in Canada considering our very low bar. And as Canadian law stands, as long as the defamation was read and republished in Canada, you can sue here, thank you Conrad Black and the Supreme Court. But even a Canadian judgment on defamation won’t be enforceable in the U.S., so it’s a Catch-22. I admit, this is messy.

In light of the Clayworth case, the CBC just published a pretty good article with some sound advice and strategies. And here’s a lawyer’s advice, and he’s an actual defamation expert, so he’s worth listening to. Unlike me.

You promised “some thoughts”. Let’s hear them, you cocksucking whore!

Sure, after I sue you in defamation for calling me a cocksucking whore.

Defamation law is designed to protect the balance between two competing interests that are entrenched in law: freedom of expression and protection of personal reputation. I very much respect this. People have the right to speak their minds, but people also have the right to not be falsely accused of being pedophiles. But should just repeating a rumour (like many of the Burke defendants claim) rise to the level of defamation? Should some tiny little comment buried on some little blog be held to the same standard as the Globe and Mail website?

One of the anonymous defendants in the Burke lawsuit went public in the Toronto Star article I linked to above. Today, he wrote a blog post about his situation. His situation  has an extra little interesting wrinkle, because he is a journalism student. He writes:

I now understand that statements online can have major results in the real world, but is everything someone says online subject to lawsuits? What about comments made on YouTube, Reddit, or even Facebook? Is it right to compare something written in a national paper to something commented on a YouTube video? Should they be held to the same standard? I am not saying that statements online are less harmful, but rather I’m just trying to bring awareness to the haziness of the facts and law of this lawsuit I am involved in.

He and I are clearly asking the same questions. I wish I had answers for him, and for you. Brian Burke and his lawyers will say defamation is defamation, and it doesn’t matter that it’s just some random comment. I am not so sure. Legally, I admit there is no difference; publication is publication as per the third defamation criteria. But intellectually, and as someone intimately familiar with the internet since he was dialing up to BBSs on his 2400 baud modem, I am not so sure. To me, there is an inherent difference between The Huffington Post or nationalpost.com or frankly anyone acting in some sort of journalistic capacity, and some dude repeating a rumour in some little-read thread on Toronto Golf Nuts, which is actually a target of the Burke lawsuit (the actual lawsuit is embedded in this CBC post if you want to read it).

I admit that (as a Habs fan especially)  I have always hated Burke and have little sympathy for him. I do appreciate all the work he has done for charity and for his stance on LGBT rights. I still think he’s an asshole (that’s not defamation btw, because I am stating an opinion not putting forth some false statement as fact) and his motivations for the lawsuit may be questionable at best. But I actually hope the lawsuit goes forward, so we can settle some interesting legal questions about this area of law in Canada.

On the other hand, I have a ton of sympathy for Mr. Clayworth. People like his ex who take their offline problems online in this way are the worst sort of scum, and should be pursued to the ends of the Earth. Too bad the law still makes it difficult because as I stated at least a dozen times on the radio, the internet crosses borders, but the law for the most part does not.

In conclusion, STFU.

IP is absolutely necessary, and I believe in it 100%. What is IP? Here’s the simple answer – you create something, it should be yours. Seems pretty logical to me. I write a book, I make a movie, I invent a brilliant new clean energy source, I should “own” those things. The basic principle is not fucking complicated. In law, it goes back more than 300 years, to the Statute of Anne. You worked hard (IP lawyers talk about the “sweat of the brow”) to create whatever the thing was (what IP lawyers call “a work”), it should be yours to control, and in this capitalist system we live in, profit from. I have no problem with that whatsoever. Yet I regularly violate IP laws, by downloading things off the internet. I should be sued.

So what do I download, and why? Let’s take one of my favourite things to download as an example, the awesome TV series Breaking Bad (“BB”, sorta NSFW link). BB is the brilliant story of Walter White, a terminal cancer patient chemistry teacher turned meth manufacturer. One of the greatest TV series of all time. Every episode of that show that I have watched I have downloaded via torrents. Technically, this is a violation of IP laws.

Now why did I download them? For the longest time, even if I wanted to pay for them, I could not. BB is broadcast on AMC in the United States. Up until very recently, there was no way to watch the show legally on Canadian television. A few months ago, AMC Canada became available on my cable provider, and I assume that when the last BB episodes are broadcast In August, I can watch them there. But for the first five seasons of the show, there was no way to watch them, legally.

Well, that isn’t quite true. At the end of each season, BB would be available on DVDs I could buy. But watching a TV show that everyone on the internet is talking about a year after it was broadcast did not fly with a hep cat like me. I need to be current.

Vince Gilligan is the genius creator of BB. He deserves all the kudos, and all the rewards, for what he has done for quality television. But here’s the thing: Vince Gilligan is not the sole owner of the IP in BB. The IP also belongs to AMC, its parent company, and who knows how many other people.

And that is the problem with IP today, and my (and others’) justification (rationalization) for violating IP laws. If there was a way for me to pay Vince Gilligan directly for an episode of BB, I would do it. It’s the same (especially) for music. You would think that  a song written and performed by Bruce Springsteen would be all Bruuuuce’s. But that’s just not true. Bruce owns a lot of the IP, but many other people have their hand in Bruce’s pie, and seriously, fuck them. That’s why the “pay what you want” model of Radiohead’s In Rainbows was so great; the money went to the creator. That’s the whole point of IP, or at least it should be.

I have a friend, Chris Velan, who is an awesome independent musician. I would never dream of downloading his albums via torrent, I’ve paid for them all. It’s not just because he’s my friend; it’s because the money goes to him. He worked hard to create it, I enjoy it, he should be paid for that.

But in 2013, IP laws have been bastardized by two groups of people: giant media conglomerates and “IP trolls“. You’ve heard of any number of copyright lawsuits against people downloading works via torrent. Who are the plaintiffs in those cases? It’s never Vince Gilligan or Bruce. It’s always Sony (e.g.). Who or what is Sony protecting? The artist who created the work? Bullshit. Sony is protecting its bottom line. Fuck Sony’s bottom line. Sony never wrote or performed that song.

IP trolls are a whole other story, and even worse. They’re dickheads who scoop up patents or enforce copyrights on works that they had absolutely no hand in creating, and sue people for IP infringement. They should be barred from courts forever.

Come up with an IP system that does what IP is supposed to do – reward the actual creators of works – and I will never illegally download again. On World Intellectual Property Day, we should be remembering who and what IP is really for.

As of today, there will be no electronic communications allowed from Québec courtrooms. Just like in the Middle Ages.

First off, I recognize that this is not an internet law story per se. But it’s a story about where the internet and the law meet, so I think I can write about it. As a former (and still occasional) litigator, I have been in many a courtroom (as a lawyer, smartass) so I have some strong views on the topic of courtroom decorum, which is ostensibly what this is about, according to the powers that be. I’m not so sure.

Let’s take a step back. A few weeks ago, the Courts of Québec issued a policy called “Directives concerning the use of technology in the courtroom” (PDF, and I’m translating this and all following quotes as it’s only in French). Those directives came into effect today. Let’s take a look at what it says:

Principle: The judge has discretion to make any order to ensure the respect of decorum, of the good order and the smooth proceeding of the hearing.

See, this is good. There is nothing more frustrating as a lawyer, or as a litigant, than distractions in the courtroom. It’s like a golfer standing over a putt trying to win the Masters (congrats, Adam Scott!). You need silence, you need no distractions. You need to be able to focus. Keeping decorum and solemnity is also important in the courtroom to keep the dignity of the process intact. So good on the courts of Quebec for recognizing that.

But how does the new policy accomplish this? Well, here is the big one for us:

It is always prohibited to broadcast or to communicate text messages, observations, information, notes, photographs, or audio or video recordings from inside the courtroom to anywhere outside the courtroom

Well lah dee dah. As we can see from the generality of the language, this would not be just Tweets, but any sort of electronic communication from inside the courtroom. No more posting on Facebook that the judge seems to be pants-less under his robe.

The policy also bans the use of electronic devices generally. Devices include laptops, smartphones, tablets, and any similar equipment. This is not necessarily a bad thing. The click-clack of Blackberries and laptops in a courtroom is very distracting. Quiet please, I’m putting.

BUT HERE’S THE THING. Lawyers, parties, and journalists have an exception – they may use electronic devices “for the needs of the case”, like writing notes, checking jurisprudence or laws, that kind of thing. So the click-clacking will go on. Decorum takes a beating.

BUT HERE’S THE MOST IMPORTANT THING. In Canada we have something called the “open court principle”. Here’s a nice little primer on that. Basically it boils down to the fact that court hearings are open, and people have the right to know what’s going on inside the courts (with exceptions). The open court principle was nicely summed up by the Supreme Court of Canada in their most recent case on the issue:

The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.  This principle has been described as a “hallmark of a democratic society” and is inextricably tied to freedom of expression.

So how does the public hear about important court cases now? Well, the internet, duh. We’re not waiting for a raven to deliver the news, we’re getting it much faster. That’s a good thing. People need to know what’s going on inside the courtroom, and reporters tweeting about it is the way we know in 2013.

The policy does not target directly the open court principle, but in practice, by making it harder for journalists to get the word out, they have effectively hampered it. That’s, uh, not good.

And here’s the worst part – by banning communicating from inside the courtroom, you’re asking for chaos. You can (for the most part) go in and out of a courtroom at will. Any time a reporter feels the need to tweet something, he’ll get up (making noise), walk to the back of the room (a distraction for everyone), open the door at the back (more noise), Tweet from the hallway, then cause all the disruptions and noise in reverse when he comes back. For a big important case, multiply that by dozens of reporters. It becomes Peel and Ste-Catherine Streets at 5 P.M.

No loss of decorum at all.

These are the slides for a presentation I gave last Thursday to the cool kids at the Intellectual Property, Information Technology and Policy Club of McGill’s Faculty of Law, which I thought you might enjoy. It really has porn and Star Trek in it! Unfortunately you don’t get the awesome banter I am famous for, but it’s still a fun presentation nonetheless. Did I mention Star Trek? And porn?

As Scribd converts documents to PDFs when you upload, the YouTube videos in the presentation are unplayable from the slides. Here they are, in order:

Rhymin’ and Stealin’ Slide 6

Mister Worf, Fire the Mashups Slide 18

Oh, Pretty Woman Slide 24

Pretty Woman Slide 24

Just one more vid Slide 31

For the tl;dr crowd, here’s the conclusion of the presentation: you can be creative online, but you better not be a pirate and make any $$$ doing it.

Yesterday there was a huge ruling in the Ninth Circuit Court of Appeals in California. Now normally we don’t write about U.S. internet law around here, but since the decision affects our favourite Canadian pirate, Gary Fung of isoHunt, we’re gonna make an exception. Especially because isoHunt is fucked.

The case is called Columbia Pictures vs. Fung (PDF), but it’s not just Columbia that won. The plaintiffs were also Disney, TriStar, 20th Century Fox, Universal, and Warner Brothers. So basically every major movie studio. You’ll probably have some issues downloading their movies from isoHunt pretty soon.

So let’s take a step back. Back in 2006, the studios sued Gary Fung and isoHunt Web Technologies Inc., which operates sites including isoHunt and TorrentBox. Those sites allow you to search for files, and download them via torrent. As isoHunt always says, none of the files are hosted by them, and for the most part they don’t even host the trackers that allow your torrent program to run (all of which is true). They are essentially just search engines (isoHunt especially), and as such should be treated like Google. Well, the Ninth Circuit did not agree.

In 2009 a California District Court heard the Columbia v. Fung case, and ruled that Fung was liable for copyright infringement under U.S. law. That decision was for summary judgment, meaning that no damages were awarded, but the Court ruled that copyright infringement had taken place.

I should take a moment to explain that Fung was not directly infringing copyright, but he was liable for what they call in the States secondary infringement, or contributory infringement. It means Fung helped others do the actual infringing. It is sort of similar to the new concept of “enabling” copyright infringement that was introduced with Bill C-11 here in Canada, and I’ve written about in conjunction with isoHunt (wrote about it twice even!). Boy I’m prescient!

So back to the courts. Fung lost in 2009, and appealed. Yesterday’s decision was the result of that appeal. Let’s go to the blockquotes:

In sum, we affirm the district court’s grant of summary judgment to Plaintiffs on liability. We also affirm summary judgment to Plaintiffs on Fung’s claims that he is entitled to the safe harbors provided by 17 U.S.C. § 512

Well that was boring. But I wrote it to include the part about “safe harbors”, which is an important consideration in this case (and these cases generally) that I’d like to introduce to you. The DCMA (Digital Millennium Copyright Act) provides that ISPs and certain internet intermediaries like search engines (grouped together as OSPs – Online Service Providers) will not be liable for copyright infringement if they meet certain conditions (here’s a pretty good Wikipedia summary if you want more). It’s a defense to infringement, but Fung did not meet the conditions. Sucks to be you, Gary.

So what reasons did the Court give for confirming the holding of copyright infringement? Well, the Court said that Fung fulfilled the requirements for inducing copyright infringement under the famous Grokster case of the U.S. Supreme Court. Well, for the most part. They sort of adjusted one of the criteria to fit Fung’s case and the technology at hand; they said a “device” or “product” to induce liability could also be a “service” to induce liability. OK then.

The most important Grokster factor is probably that the product/device (or service in this case) is promoted as a product/device/service to induce copyright infringement. Here’s what the Court said:

we conclude that there is more than enough unrebutted evidence in the summary judgment record to prove that Fung offered his services with the object of promoting their use to infringe copyrighted material. No reasonable jury could find otherwise.

What kind of evidence did they have?

the most important is Fung’s active encouragement of the uploading of torrent files concerning copyrighted content. For a time, for example, isoHunt prominently featured a list of “Box Office Movies,” containing the 20 highest-grossing movies then playing in U.S. theaters.

Boy you just can’t make lists anymore without getting into trouble. Actually I kid. When a user clicked on a title there was a message encouraging the user to upload the movie. Fung also encouraged users via forum messages to upload and download all sorts of copyrighted materials. Also, too:

instances of Fung responding personally to queries for assistance in: uploading torrent files corresponding to obviously copyrighted material, finding particular copyrighted movies and television shows, getting pirated material to play properly, and burning the  infringing content onto DVDs for playback on televisions.

Well that looks bad. The Court actually did a good job of explaining that just “knowledge” of infringement was not enough, and showing the evidence that Fung knew about it, sure, but also did all sorts of things that induced infringement.

After going through the Grokster analysis, the Court then looked to see if Fung could benefit from the safe harbor provisions. As mentioned above, Fung was shot down. One of the big (if not the big) factor to benefit from safe harbor is that the infringer “does not receive a financial benefit directly attributable to the infringing activity”. Well, Fung was cashing in!

the record shows that Fung generated revenue by selling advertising space on his websites. The advertising revenue depended on the number of users who viewed and then clicked on the advertisements. Fung marketed advertising to one advertiser by pointing to the “TV and movies . . . at the top of the most frequently searched by our viewers,” and provided another with a list of typical user search queries, including popular movies and television shows.
(…)
Fung promoted advertising by pointing to infringing activity

Well that’s bad! But how else was he going to make that sweet sweet cash? Anyway, the Court went through a bunch of other stuff about safe harbors (including an interesting legal bit about “red flag knowledge”), but no doubt by now you’re bored by all this Court talk so let’s just say Fung lost. The case will probably head back to the District Court now to try and figure out the cash money damages Fung has to pay to the studios.

Commentary analysis fun time!

I love isoHunt. I use it. You know that. But I have read this decision (for realz!) and I know the law in this area (I wrote my Masters Thesis on it), and I have to conclude that the Court did a good job analyzing the law as it stands and coming to their holding. Making a “product or device” into a “service” may be a bit sketchy, but I’ll allow it. The Court was just adapting to the technology.

Now, I agree with Fung’s lawyer that the Court made a bit of a mistake when it was talking about trackers in the safe harbor discussion. But that error is totally insufficient to make this decision problematic. As the law stands, based on Grokster, the Court came to the right decision.

Taking the view from above the 49th parallel, I believe Canada targeted isoHunt with the enabling provisions of C-11. As I wrote in my first isoHunt post:

In my oh so humble opinion, isoHunt is probably screwed.

I strengthened that in my second isoHunt post:

Your takeaway for the day – isoHunt is fucked.

Well, it looks like the Harper government could have been saved some trouble. The Ninth Circuit Court of Appeals is doing their job for them. I’m guessing the damages awarded to the studios will be so large as to put Fung and isoHunt and his other torrent sites out of business. It’s only a matter of time.

Where am I going to get my Breaking Bad episodes now?

On Friday, our old friends in the Conservative Government introduced Bill C-56 in the House of Commons. People are writing that the Bill will introduce the dreaded ACTA, the Anti-Counterfeit Trade Agreement, to Canada. It will not, at least in the most important way for us internet law folks. Lemme explain.

If you have been without an internet connection for the last couple of years you may not have heard of ACTA, and the resultant protests in 200 European cities in February last year, as seen in the pic at the top of this post. So for a quick backgrounder, go read Wikipedia. Holy shit that’s a long article. That tells you how important it is! In brief, ACTA is a multinational treaty, designed to standardize intellectual property laws around the world. Good fucking luck with that. Canada signed ACTA but has not ratified it, and ACTA is not even in force, meaning it is not the law of the land.

So what really got Europe’s panties in a bunch (the Euro Parliament rejected ACTA in July last year) for the most part was the fact that ACTA has all sorts of powers with respect to enforcing copyright on the internet. Those powers could have had all sorts of consequences on freedom of expression and privacy and all that good stuff we love on the interwebz. Here, from the BBC report on the protests linked above:

“It’s lacked scrutiny, it’s setting up dangerous new pressures to censor the internet to remove users and put pressure on [Internet Service Providers] to start policing for copyright.”

Well that totally blows. Had I seen that I would have been out protesting too, and even sort of supported those crazy Anonymous actions (not that I support anything illegal mind you, [cough]). In fact, ACTA contains an entire section, Section 5, entitled Enforcement of Intellectual Property Rights in the Digital Environment. I have bolded it and italicized it to tell you how important that was. Let’s take a look at some of the provisions of Section 5:

1. Each Party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are available under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment

So basically making internet piracy an actual crime. Got it. That’s bad. Next:

4. A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement

Ahhhh, ISPs turning over subscriber info without any sort of legal procedure. We know how well that goes over around here. Anyway, you can go read all of Section 5, it is unpleasant. If it was introduced in Canada, no doubt I would surely write a strongly worded Tweet against it. I might even write a blog post, if I wasn’t otherwise occupied getting drunk with other lawyers.

Which brings us back to Bill C-56, the Combating Counterfeit Products Act. If it included clauses about enforcing IP on the internet, I would be freaking out. But here’s the thing – it doesn’t. You hear me? There is nothing in C-56 about the internet. NOTHING.

I spent yesterday afternoon reading the bill. OK, maybe not “reading” given it is really fucking long, but skimming it, and reading the headers. I have also diligently been CTRL-F’ing for words like “internet”, “digital”, “network”, “computer” and the like. Zero. Zip. Nada. As noted copyrighted attorney Howard Knopf mentions, there is one occurrence of the word “communication signal”, but by my reading it really has nothing to do with ACTA’s section 5. There is one bit about “exhibition in public” that may apply to the internet, but again, that has nothing to do with ACTA’s Section 5.

Don’t get me wrong – there is a lot that is really wrong about C-56. Criminalizing intellectual property law (up to five years in prison!) is fucking stupid, and the bill gives uneducated (in the IP sense) border guards all sorts of seizure powers they should not have, without any sort of judicial oversight. Plenty of things in the bill are pretty harsh. It also expands our own Canadian definition of trademarks, and provides no methods for people who have had their goods seized without reason to get their stuff back.

You can complain about that, and more, all you like. But the hysteria that ACTA is coming to Canada to take away online rights is just not warranted (yet). Look at the headline from the National Post that I linked to above and am linking to again so you don’t miss it:

Is the ACTA Internet piracy treaty, which inspired street protests in Europe, going to get quietly passed in Canada?

The article suggests the answer is yes. I’m calling BS on the National Post. Bill C-56 has nothing to do with internet piracy. Did anyone at the National Post even fucking read it? Don’t get me wrong. I have every faith that this government would try to get the ACTA Section 5 provisions into Canadian law as soon as they could. Further, do I think that the U.S. is pressuring Canada to move towards ACTA like Geist says? Damn right. Between the new Copyright law and this bill, there are plenty of ACTA-like provisions making it into Canadian law.

But this bill is not about the internet, which is the reason people went apeshit over ACTA, and called it worse than SOPA and PIPA. Read the bill, and chill. For now.

Greetings, internet denizens! Sorry for the lack of posting lately. I think the internet took the month of January off, so there was really no news to report. But yesterday, there was good news! The Conservative government has decided to kill Bill C-30, the Protecting Children from Internet Predators Act, or as we liked to call it around here, the Vic Toews is an Idiot Act.

We wrote quite a bit about C-30 and its various nefarious schemes. Suffice it to say, when a Federal Minister says things like “you are either for this bill or you are a child molester” (I’m paraphrasing, but not by much) there is going to be some media attention. The internet exploded with rage (as it is wont to do) at the bill last February, and the government seemed shamed somewhat. Yesterday’s announcement was too long in coming yet welcome, and was an obvious reminder that people who actually know about the internet (i.e. me) must be listened to.

Justice Minister Rob Nicholson, in describing what changes the future might hold, said yesterday that amendments or modernization of Canadian law:

“will not contain …warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems.”

Let’s just leave that here for posterity to remind the government of its position on this, if when they bring up “lawful access legislation” again.

Yes. Yes it is.

Let me explain.

Is spam a problem? Well, I’ll get to that in a minute. But the government certainly thinks so, as back in December of 2010 it passed what has been come to called the CASL, or Canada’s Anti-Spam Law. The full title of the law is really quite something, and I think it even needs its own blockquote:

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

Whew, that’s a mouthful. We’ll just call it the CASL. The CASL, in its original form, was perhaps the harshest anti-spam law anywhere. As I’ve never written about this before, here’s a quick rundown of some of the highlights of what it does:

1. You need to have “prior consent” to send someone a Commercial Electronic Message (“CEM”). These CEMs include not just emails, but text messages, Facebook messages, and the like. A CEM is a message that offers “commercial activity”, and that commercial activity doesn’t even have to have profit as its goal.
2. Your CEM must include all sorts of information about the sender, and have an opt-out option.
3. Organizations can be fined up to $10 million per violation, and individuals up to $1 million. Yikes!

Those are the basics of what it does. The law is also about preventing people from installing nefarious computer programs on people’s computers (i.e. malware or spyware), but let’s just ignore that for now. The key to those points above is the “prior consent” business. Basically, you need to have asked for permission to send someone a CEM, though there are ways that the consent can be implied. Compare this prior consent requirement to the American CAN-SPAM Act, which only requires some opt-out mechanism.

So the law received royal assent back in 2010, but it is still not in force. The law was held back while Industry Canada and the CRTC published regulations to clarify the stuff in the CASL. Industry Canada published some regulations first, and asked for comments. Then the CRTC published theirs. Then, earlier this month, Industry Canada presented their revised regulations based on those first comments. Ahh, lawmaking. Takes a while.

Reaction to the newest regulations has been mixed. Michael Geist wrote earlier this week that the new regulations water down the CASL by providing too many exceptions from the express consent requirement. He’s right. Barry Sookman has been looking at the regulations in a series of posts this week, and his position is that the new exceptions in the regulations were needed. He claims that the CASL’s “ban all” approach was limiting commercial speech. He’s right too.

Me? I don’t give a crap. Why? Because the CASL, the entire concept of it, is a joke. Now, finally, I will explain.

What do you think of when you think of spam? You think of emails with the subtle subject lines like “ENLARGE YOUR PENIS NOW” or “CANADIAN DRUGS!!” or “MEET HOT SEXY LOCAL WOMEN TONIGHT!!!” You think of spam as the type of email I screencapped for you at the top of this post. I guarantee you that every single Canadian thinks of these types of emails as spam. That’s the spam that’s taking over the internet. That’s the spam that various estimates put at 70-90% of all email sent.

And the CASL will do absolutely nothing about that type of spam. That’s the joke.

The spam you and I think of as spam most likely did not come from Canada. It came from India, or Russia, or China, or the USA. Even the “CANADIAN DRUGS” one came from somewhere besides Canada. Now, technically, the CASL has some of what we in the law biz call “extra-territorial effects,” meaning that the law should technically apply to people outside of Canada who send spam to Canadians. The CASL says that as long as a Canadian computer is used to “access” the CEM, that’s enough for the CASL to apply. Here’s what the CRTC’s chief compliance and enforcement officer Andrea Rosen said about that:

“If the spammer is offshore, we have the ability under the law to co-operate with foreign governments, to share information and to bring proceedings together against individuals that are offshore”

“Cooperating” and “sharing information” are totally useless and will do nothing about that bank of computers in a warehouse in Vladivostok sending spam. As for the ability “to bring proceedings” to people not in Canada, good fucking luck with that. First, you have to find them. Sure, because spammers on the internet make it easy for you to find them. Then, you have to serve them. Then, you have to get them to a Canadian court. Even if you manage to get a judgment against them, or impose some sort of fine, good luck trying to get that enforced. National laws that have international effects are almost always impossible to enforce. To truly tackle an international legal problem, you need an international law or treaty.

Also, here’s another issue I have with the government’s approach to spam. When was the last time you actually got spam (well, the spam you and I are talking about) in your inbox? Me? I can’t even think of how long it’s been. And I don’t even do anything special. I have at least 5 different email accounts running from 5 different services or hosts. Gmail does an amazing job filtering out all spam. All of my hosting companies do a decent job blocking spam at the server level. Even if something slips through the server, even stupid old Outlook 2007 manages to block what’s left, diverting it to a Junk folder. Technology has, for the most part, triumphed over spam, better than any law ever could.

So here we have a government wasting years of time and effort to tackle a problem that 1. barely exists any more thanks to technology and 2. will do nothing to stem the tide of Lose Weight Now! emails that you ignore (or never see) anyway.

The only people or organizations who will work hard to comply with the CASL are legitimate companies. Sure, the Bells and Krafts of this country have the resources to make sure they comply. But that small start-up company that could be the next Facebook which uses email as their only marketing tool? They’re fucked. And that’s fucked. The stated purpose of the CASL is to “promote the efficiency and adaptability of the Canadian economy”. It will have the opposite effect on that start-up. The real spammers, the guys running bots and banks of computers from their basements, have no interest in complying. Sure, put a law on the books that targets these guys with large penalties. But the onerous nature of the CASL on legitimate businesses is a joke.

And here’s the thing about legitimate Canadian businesses who send CEMs – virtually all of them already have some opt-out mechanism. I’ve used them, and they work just fine thankyouverymuch. It’s good business practice to do so. Legitimate businesses don’t want to piss of their customers or potential customers by spamming them. Legitimate businesses aren’t the ones sending the spam that’s the problem (such as it is), but they’re the ones who will bear the burden of the CASL. That’s a joke.

Lawyers and government regulators are spending weeks and months and now years (mmm, billable hours) debating the intricacies and minutiae of the CASL and the regulations, and advising their clients on how to comply (when the time comes). I am doing it too. But we shouldn’t have to be. True spam can only be stopped by technology, and some international cooperative effort that includes the governments of all the countries who are most responsible. In all our discussion about the details, no one has really asked if the CASL is even a good idea or a joke. I guess until now.

Speaking of jokes, we end with a word from our sponsor:

Most importantly because your humble blogger appears on the Canadian list, at the awesome Jack Bauerian ranking of 24! Hells yeah!

Thanks to all of you readers for making this achievement possible, and to Barry for compiling the rankings. Let’s aim for top 20 in 2013! And then we’ll knock Geist off his perch in 2014. He has it coming.

So we called my last friend Mr. X, but since we may be doing a lot of these we’re going to need better names or we’ll run out of letters. So let’s call this week’s subject Joey JoJo Junior Shabadoo. Joey JoJo is a TekSavvy customer, and just received an email from them about a pending lawsuit. Unlike with Mr. X, this letter does not accuse Joey JoJo of anything, it’s really just informational. Let’s dive in.

Dear Customer,

TekSavvy recently sent out a communication to some of our customers on the request for personal information from Voltage Pictures LLC.

Voltage Pictures! Developers of such fine films as Ball$ to the Wall. You may remember them from such famous lawsuits as The Hurt Locker case, when they went after about 25,000 people who downloaded that movie via BitTorrent. There was also a Canadian version of that case, and yours truly wrote about it in our first substantive post on this blog. While the lawsuit was eventually abandoned, what’s important about it is that a judge ordered that several ISPs attach customer information to the IP addresses that had been identified as the downloaders. That is a very important precedent in Canadian law, and one that will surely come into play in the lawsuit at issue today.

We have set up a notification system in the customer portal to let our customers know if they were on the list. Please visit the My World on the TekSavvy website to verify this information.  If your IP address is on the list, please email support@teksavvy.com for a copy of your email, with full details.

I love this. TekSavvy is like, “meh, you might want to check if you’re being sued.” The earlier communication from TekSavvy stated what was going on:

We write to inform you that TekSavvy has received a court motion from Voltage Pictures LLC that may result in disclosure of your name and contact information.

I’m really not so sure about the “may result”. I would have gone with “most probably absolutely will result given the holding in the Hurt Locker case”, but then again, I’m cynical.

The following link leads to updated documentation called the “Motion Record” received December 11th, 2012. The Motion Record contains the evidence and argument that Voltage will be relying on for its motion scheduled to be heard as early as 9:30 AM on Monday, December 17, 2012 at Federal Court of Canada

The motion was in fact presented in Court on Monday. However, the hearing was postponed by the judge until January 14th, as TekSavvy successfully argued it did not have sufficient time to alert its customers they may be involved in the lawsuit. Here’s the “Motion Record” they refer to (big-ass mofo PDF), which I urge you not to read. It’s standard stuff, outlining that Voltage hired a firm to track Torrenters of their films, the firm found the IP addresses attached to TekSavvy, and Voltage wants the Court to order TekSavvy to attach customer information to those IP addresses so they can be sued. According to this TekSavvy blog post, there are actually “a couple thousand” IP addresses involved. Yikes.

Unlike the Hurt Locker case which was just about one movie, here Voltage has identified a whole bunch of movies that were downloaded. You can see them all on page 29 of that PDF. They include such luminous titles as Generation Um…, Maximum Conviction, and the aforementioned Balls to the Wall. What kind of crap are you people downloading?

At TekSavvy, we take pride in our dedication to our customers.  We listen to our customers and try to respect their needs. We have always fought for our customers’ rights and we take their privacy seriously.

This is why we should all be using TekSavvy. They really are different.

At the same time, rights holders are entitled to enforce their rights under the Copyright Act. TekSavvy therefore encourages everyone to become familiar with their rights and obligations under copyright law.

Hmm, maybe not.

You should know that TekSavvy does not monitor our customers’ use of the Internet and has no involvement in collecting the IPs presented in this request by Voltage.  We are also not in a position to speculate on the validity of the claims, nor contest the request for information.

And we are covering our own asses. Check out that bolded part, it’s a doozy. Basically TekSavvy won’t fight to protect its customer information. They know the Canadian Hurt Locker decision. It sure makes their use of the phrase “may result” I snarked on above kind of a joke. I’d say “we’ll see how this plays out January 14th”, but I am 100% (well ok, 99.99%) sure the court will just order TekSavvy to turn over the information.

Super happy fun-time analysis hour!

What seems obvious to me about this new effort by Voltage is that it’s clearly designed to test out the new updated Copyright Act. The Motion Record refers to section 38.1 of the Copyright Act, which was part of the recently come-into-force Copyright Modernization Act you should know about by now. Interestingly, section 38.1 is where you find the limits on damages for copyright infringement ($100 to $5000 for individuals doing non-commercial infringing). So I guess those limits were not a bar to copyright owners suing after all.

What’s also interesting is that the Copyright Modernization Act has a notice and notice regime (which I’ve written about) that would make it absolutely required for an ISP to forward an infringement notice they received from a copyright holder to their customer. But those provisions are not yet in force. It’s surprising that Voltage would not wait for those provisions to be in force, as it would make their job suing people much easier. But I guess they want their money now.

As for TekSavvy choosing not to fight the request for customer information, I will leave it to TekSavvy customers to decide what they think of that. A just-published HuffPo editorial takes them to task a little bit for it. But I don’t think TekSavvy really has much choice to be honest. And at least they are generally open and transparent with their customers about it, unlike your average ISP.

Finally, as per the regulations of the Montreal-based Bloggers Collective, I am required to post the video below whenever TekSavvy is mentioned in a post. Happy Holidays everyone.