Hawt SCC Copyright Action! Part (something) in a series

Nice houseAnd we’re back with Part Something in our coverage of the Copyright Pentalogy. Last time we took a look at what I called the most “internet-y” of the cases, SOCAN v. Bell. Today let’s take a look at maybe the second most “internet-y” case, Rogers v. SOCAN. Man, I sense a SOCAN trend. HOLD THE PHONE. I just read the case, and decided we’re going to look at ESA v. SOCAN instead. SOCAN trend indeed. Anyway, let me explain the change of heart.

So in Rogers v. SOCAN, Justice Rothstein writes in his reasons:

The appeal is allowed in respect of downloads for the reasons set out by the majority in Entertainment Software Association (ESA) v. Society of Composers, Authors and Music Publishers of Canada (SOCAN)

Well fuck me, you lazy bastard. Make your own reasons! I keed, I keed. This is standard practice at the Supreme Court. Cases on similar topics, that may cover similar issues, are often heard and released together (as in this whole Copyright Pentalogy business). When that happens, the cases are technically decided on their own merits, but the legal issues in the different cases may be exactly the same. So an opinion in one of the cases may just refer to the reasons in another case, if it is the same legal issue involved. So with Justice Rothstein doing that, it makes sense for us to look at the ESA case first, to see what those reasons are. Plus it’s about video games, so that should be fun. We’ll have to get Rogers v. SOCAN at some nebulous time in the future. I’m sure you’re filled with anticipation.

So ESA is the Entertainment Software Association. ESA represents a coalition of video game publishers and distributors who enable customers to download copies of video games from the internet. Those copies are exactly the same as what you would buy in a store. And those video games have music in them! When the video game publishers make a game, they negotiate payments to the copyright holders of the music in the game. Once the negotiation is done, the copyright holder has no more say. But then the question becomes, according to the Court:

The question in this appeal is whether the rights are nonetheless revived when the work is sold over the Internet instead of in a store.

Restated in more simple English, should the copyright holder get more money if the game is downloaded over the internet instead of bought in shrink wrap? The Court answers:

In our view, it makes little sense to distinguish between the two methods of selling the same work.

And we’re done! Okay, okay, let’s delve in a little more. This case actually hinges on one of the basic components of copyright as defined in the Copyright Act. The key provision (section 3(1)(f)) states:

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right


(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication

This entire case essentially boils down to the word I’ve bolded for you – communicate. You see, SOCAN said that by downloading the video game, you are communicating the musical work to the public, and thus there should be an additional tariff paid to the copyright owner, for the communicating. You see, the copyright fees already being paid were for reproducing (under 3(1)(a) of the Copyright Act). Anyway, ESA said that the downloading copy is exactly the same as any copy bought in a store. Well, duh. And the Court seems to agree, saying:

In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet.  The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user.

Nice metaphor with the technological taxi line. Lawyers will be repeating that for years. The Court got to this point by expanding on the idea that copyright should be technologically neutral. That was also important in our discussion last time, and the Court seems to be running with that line of reasoning here and elsewhere in the pentalogy. Geist wrote a column about that, and I agree with him that the Court’s insistence on technological neutrality may have a big impact down the road.

The Court goes on and on about communicating, and blah blah blah you don’t care. But the Court notes the important difference (to this internet lawyer at least) between a stream and a download (when they talk about the “Board”, they mean the Copyright Board whose decision they are overturning here):

The Board’s conclusion was based in part on its erroneous view that a “download” is indistinguishable from a “stream”.  Although a download and a stream are both “transmissions” in technical terms (they both use “data packet technology”), they are not both “communications” for purposes of the Copyright Act.  This is clear from the Board’s definition of a stream as “a transmission of data that allows the user to listen or view the content at the time of transmission and that is not meant to be reproduced” (para. 15).  Unlike a download, the experience of a stream is much more akin to a broadcast or performance.

The big finish:

(The Board)… improperly extend(ed) the term “communicate” to capture the Internet delivery of permanent copies of a work.  In our view, this interpretation goes far beyond what the term “communicate” was ever intended to capture.

Nice job Supreme Court. WAIT. HOLD THE PHONE AGAIN! The story isn’t finished. We have a dissent! In fact, this case was divided 5-4. Now you know why there is always an odd number of judges. Justice Rothstein writes for the minority, and as usual I don’t like to dwell on the minority, as they are the big LOSERS amongst the judges. However, Justice Rothstein does have some interesting arguments. He talks about copyright being a creature of statute, meaning that we need to interpret the law to conform to what Parliament intended when they wrote it. And as such, he dives into section 3(1)(f) and the whole communications thing, its legislative and interpretive history, and zzzzzzzzz… Hey Justice Rothstein, don’t you have a nice simple quote we can throw out there?

the Internet may well be described as a technological taxi; but taxis need not give free rides.

Oh BURN, majority. Anyway, Justice Rothstein and his three colleagues say that in fact, this type of content delivery is in fact communicating to the public, and thus there should be additional royalties based on 3(1)(f).

I never really comment on cases, as I prefer to just make snark as I summarize them for you. But on this one, because it’s 5-4, what the hell, I’ll pontificate. I’m going to have to go with the majority here. The delivery mechanism should not matter. IT’S THE SAME FUCKING PRODUCT. The copyright royalties should be the same. Now, Justice Rothstein says that the Copyright Board can just change the royalty rates so that the same overall royalty is paid, but in two parts instead of one, and paid to two different royalty-collection societies. Ugh. Here’s what the majority said in response to that:

this seems to us to undermine Parliament’s purpose in creating the collective societies in the first place, namely to efficiently manage and administer different copyrights under the Act.  This inefficiency harms both end users and copyright owners

Amen, majority.



I can’t believe it was 5-4, but at least they got it right. When the game companies start beaming game experiences directly into your brain, then royalties for “communicating” the product can be revisited.


“…change the royalty rates so that the same overall royalty is paid, but in two parts instead of one, and paid to two different royalty-collection societies.”

Right. I’m no expert but…The same overall royalty? Really? You just added 2 layers of “work” on the collection of royalty. This work costs money. These collection societies will collect their share. The entity receiving the royalty just got royal[t]y screwed.

Congratulations, you just upped the price on everything.


Hard to believe there was a split, I wish there was an easy way to port my Ipod music into a game instead of the music that comes with games.


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