David Canton – for the London Free Press – January 31, 2007

Read this on Canoe

A recent Australian decision added to what is included in downloading and uploading of copyrighted material. The Australian Federal Court ruled the inclusion of links to copyrighted material is illegal.

Mp3s4free.net was a website that provided a search engine where a user could download MP3 files. The website, which did not host any copyrighted music, was an open-links page that allowed anyone to add links to available MP3s, without checking if the music was approved for sharing.

The site’s operator argued linking should not be a copyright infringement, especially since he warned users the links may not be authorized copies.

The court disagreed. saying the site “induced” people to violate copyright and was illegal since its “principal purpose” was to direct people to infringing content.

Contributing to Cooper’s guilt was the fact there were no protections on the site to prevent unauthorized songs from being linked.

The court said Cooper had the “power to prevent the communication of copyright sound recordings to the public in Australia via his website . . . because he was responsible for creating and maintaining his mp3s4free website.”

The Australian court followed the Grokster decision of the U.S. Supreme Court. Grokster was a software firm that produced a peer-to-peer file-sharing program. In the Grokster case, the court ruled the movie and music industries can sue technology firms that encourage customers to steal movies and music over the Internet.

These decisions have caused many to worry they create a mindset in which new technologies themselves will be ruled illegal, rather than their improper use.

Traditionally, the U.S. followed the Betamax Test, which held that “even if the principal purpose of a technology was infringement, it should be allowed if there were substantial non-infringing uses.”

The Betamax Test rescued the VCR from being illegal. Had the “principal purpose” test been used, the VCR never would have seen the light of day.

The decision, that it is the technology maker’s job to build in infringement protection, raises many problems. That burden on technology makers would cut innovation and boost development costs.

The entertainment industry forgets how helpful and profitable new technology can be. The VCR, for example, made huge profits for movie makers.

While the Australian decision has a serious impact on technology makers, it also creates consequences for the public. Similar action could be taken against individuals who use the Internet to link to copyright protected material.

Everyone should use caution when linking to available music and video files

One of Vista’s “features” is that it can downgrade high definition content if it decides proper licensing or authorization is not in place. That ties in with the restrictions designed into HD-DVD and Blu-Ray.

It seems that this DRM has already been cracked. So the new HD disk formats and Vista are barely here, and the DRM can be defeated on all of them.

Boing Boing has a good piece on the Vista hack and the Montreal man that created it. One interesting angle is that he is afraid to release too much for fear of violating US law, even though he is in Canada, and it may not violate Canadian law.

Read the Boing Boing article

Read a Toronto Star article by Michael Geist that talks about Vista fine print and the DRM issue

Windows Vista debuts tomorrow. Should business be in a hurry to adopt it?

A lot has been written about this recently. A Google search on “Vista” will get lots of reviews and opinions.

The bottom line is that if you are getting new PC’s – there is no reason not to get Vista on them. The only caveat is that you should ask your software vendors first if their products are ready to run on Vista.

Upgrading existing machines to Vista is probably not worth it for most. While Vista does have some compelling features, for the most part the time and effort and cost to install Vista, (including any costs for PC upgrades) outweighs the advantages.

The best place to be right now is to have PC’s that are near the end of their life cycle, and due for replacement late this year. That makes the upgrade to Vista easy, and gives some time for any production bugs to be worked out.

And when evaluating Vista, think about Office 2007, and Exchange 2007. Certain features in Vista – like unified messaging – may require upgrades to Exchange as well.

Wired News reports that Western Union has ended its telegram service. It’s no surprise that email has resulted in plummeting demand for telegrams.

According to the Wikipedia entry for telegraphy, other telegram services are still available though.

So how many years will it be until we see an article that says that email over PC’s is no longer available because it has been replaced by the t-mail (thought mail) chips that are implanted in our heads?

Read the Wired report

Read the Wikipedia entry

David Canton – For the London Free Press – January 25, 2007

Read this on Canoe

Some provinces have statutes creating a category for breach of duty, or tort, in relation to invasion of privacy. Recent Ontario cases suggest there may be a similar right in this province.

British Columbia legislation is general in nature, allowing a person to sue for a violation of that amount of privacy deemed “reasonable,” given the circumstances.

Manitoba and Saskatchewan acts, on the other hand, list examples of privacy invasion, such as surveillance, phone-tapping and use of the innocent party’s personal documents without consent.

These acts list remedies, such as damages, an injunction or the return of any documents that had come into the defendant’s possession as a result of the breach.

Justice David Stinson of the Ontario Superior Court of Justice, in Somwar vs. McDonald’s Restaurants Canada Ltd., said, “With advancements in

technology, personal data of an individual can now be collected, accessed (properly and improperly) and disseminated more easily than ever before . . .

“The traditional torts such as nuisance, trespass and harassment may not provide adequate protection against infringement of an individual’s privacy interests.”

He also stated that “the time has come to recognize invasion of privacy as a tort in its own right.”

In Somwar, the plaintiff was a manager seeking promotion at one of the defendant’s restaurants. He claimed his privacy was invaded when the defendant conducted credit checks on him without his permission.

The defendant brought a motion asking the court to dismiss the claim. The court did not; the case has since been settled.

The second case is Shred-Tech Corp. vs. Viveen, from the same court. The plaintiff sued numerous former employees for violating a non-competition agreement.

The key evidence behind the law suit was information obtained from a private investigator including the defendants’ calling records and secret videotapes of the defendants’ new places of business,

The defendants’ brought a motion, to be able to use this material despite procedural rules against it, to launch a complaint under the federal Personal Information Protection and Electronic Documents Act.

In siding with the defendants, Justice D.J. Gordon agreed with the comments made by Stinson, adding, “There is some debate as to whether there now exists a tort of invasion of privacy. I am of the view recognition of such a tort in law is the logical result of the acknowledgment of privacy rights.”

What do these two decisions mean?

The question before each justice was not whether the tort of invasion of privacy existed or not, so their pronouncements on the issue are not binding precedent.

Secondly, these decisions come from trial courts. If the tort of invasion of privacy is to become entrenched in Ontario, it will have to come by a decision of an appellate court.

Thirdly, although these cases acknowledge the potential existence of a tort for invasion of privacy, they do nothing to outline the scope of liability. How far should such protections extend?

These issues need to be sorted out before it can be stated that a common law tort of invasion of privacy exists. It appears that, given the right facts, it is only a matter of time.

ITBusiness.ca has a survey on their site that asks: Do you think companies are doing enough to protect customer data from security breaches?

Yes. Nothing can be a 100 per cent secure and companies are doing their best given limited resources.

No. The recent security lapses at CIBC and TJX’s Winners and HomeSense are a prime example of the way companies are failing to protect data.

The result so far is an overwhelming No.

It will be interesting to find out what really happened in those instances, and where the privacy investigations go. Right now, there are more questions than answers

Vote and look at the actual results at ITBusiness.ca

I admit to wondering why AT&T decided to drop the Cingular brand after their merger. As a Canadian who is not within that market, all we see is spillover advertising. Just from that, it struck me that Cingular perhaps had a better brand image and more compelling ads.

But then I’m sure AT&T considered it carefully before they made that decision. Although it’s not unheard of for an aquiring entity just to assume their brand/business methods/etc. are better.

Techdirt has a post entitled When Choosing Between Two Brands, Why Keep The Less Popular One? that gets into this issue.

Its interesting not just for the Cingular / AT&T instance, but for branding in general. I often obtain trade-marks for the branding of small businesses that don’t have the budgets to spend on professional branding exercises. A common comment is that they did not realize how difficult it was to make branding decisions until they had to try to figure it out for themselves.

Read the Techdirt post

The big privacy news in the press is the loss of the CIBC hard drive, and the data theft from the TJX/Winners/Homesense chain.

And David Fraser says there are a couple more incidents about to break.

Lots of questions to be answered about these – and we will be hearing a lot more about them as the facts come out and investigations occur.

A couple of thoughts:

Why did TJX have all that customer credit card/debit card info on its systems in the first place?

One current PIPEDA review issue is if there should be a mandatory obligation to disclose security breaches of personal info. TJX says they delayed advising the public for several weeks at the request of the police who were investigating. How do we balance the ability of the police to properly investigate such matters, with any obligation to disclose? After all, one of the best protections against fraud and identity theft arising from a loss of information would be to find the perpetrators and deal with them quickly.

For more details, read David Fraser’s Canadian Privacy Law blog

Marketwatch.com has an article that starts by saying: The global music industry Wednesday threatened to take legal action against Internet Service Providers if they failed to take action against users who illegally upload and download music.

The ISP’s, of course countered that its not their responsibility to monitor information distributed over their networks. I agree with the ISP position. It would be kind of like making phone companies liable for phone conversations between people plotting illegal activity.

If I understand the music industry logic, it is that:

If company X makes product Y, and some people use Product Y to do something that might be illegal or undesireable from another’s perspective; then Company X should have an obligation to prevent or control that activity, or otherwise be responsible for it.

So following that same logic, the music industry should be responsible for / control, and be liable for things such as:

- students getting bad grades when they listen to music instead of doing homework

- accidents that happen when a driver changes his radio station or MP3 player to hear a different song, or is distracted by music

- someone doing something that is suggested in a song lyric

- any improper activity performed to music such as drug use

- noise complaints when someone plays their music too loud

Read the marketwatch.com article

ArsTechnica has an article that says the first pirated HD DVD movie is available through BitTorrent. That’s more evidence to suggest that the time and effort that the entertainment industry puts into DRM efforts is wasted.

I don’t think there is any DRM method that has been tried over the years that has not been defeated. It thus does not offer the industry any real protection – while at the same time causes all sorts of problems for consumers.

That’s why the industry wants legal protection to make it illegal to defeat DRM. The problem is that the combination of DRM and legal protection makes it illegal for consumers to do things that copyright law otherwise allows us to do.

Read the ArsTechica article