One of the most controversial aspects of the copyright reform bill is the digital lock provisions, which make it unlawful to break digital locks, even if it is only to exercise a right copyright law actually gives you.

A new US case has limited the effect of the US DMCA digital lock provisions, saying that they don’t prevent one from braking a digital lock to view or use a work.   As Michael Geist points out, that makes the Canadian proposal much tougher than the existing US provisions.

For the London Free Press – July 5, 2010

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Canadian lawyers are suing for $50 million, claiming the company is making legal documents available for a fee without the authors’ approval

A class action was filed on May 25 against Thomson Reuters Corp. and Thomson Reuters Canada Ltd. on behalf of a class of Canadian lawyers and law firms across Canada to the tune of $50 million.

The lawsuit alleges that Thomson breaches copyright laws by making lawyer-created legal documents available for a fee and subscription without permission from, or compensation to, the authors of the documents.

How do they do this? It is alleged that Thomson copies publicly available court filings. That includes legal documents such as facta, pleadings, affidavits and notices of motion, prepared by lawyers. It then makes them available for download via its “Litigator” service.

The user subscribes to the service and pays a fee, then is permitted to copy and edit the documents. At no time are the authors of these documents informed that their documents are copied, sold, or reproduced.

Of notable offence to the plaintiffs is the fact that the copies available for download are branded with a statement that asserts Thomson’s copyright over the documents: “[copy] Thomson Reuters Canada Limited or its Licensors. All rights reserved.”

Lawyers are perhaps the original mash-up artists when it comes to legal documents of all kinds. All lawyers copy parts from similar documents other lawyers create and use – whether they are contracts or court documents. It is one way lawyers have always learned and documents have been improved. Lawyers have not for the most part considered copyright issues when it comes to their own documents.

The question is whether the service Thomson provides is different and whether it crosses a copyright line.

The statement of claim issued by the plaintiffs pleads that the lawyers are the owners of copyright in these legal materials and that Thomson has infringed the Copyright Act by its actions.

More specifically, the claim states:

“The defendants took more than 50,000 legal documents created by members of the proposed class, removed them from court files and copied them, scanned them into a downloadable format, posted them in their database, and then made them available to subscribers for a fee.”

Counsel for the plaintiffs are seeking to have the lawsuit certified as a class action.

If the case is certified by the court, all persons who fit the class definition will automatically be included in the class unless they choose to opt out.

Among the many claims made, the plaintiffs have asked for $50 million in general damages for the class, disgorgement of profits made by Thomson from the infringement, $1 million in punitive damages, litigation costs, and a permanent injunction from using the documents.

Thomson of course has a different viewpoint, and will defend the action.

The case will be decided on the subtleties of copyright law. But it boils down to this.

Though the sharing of legal documents has always been an accepted and necessary way of practising law, does doing it in a commercial way such as Thomson does cross a legal line?

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

The new copyright bill is expected today.  There has been much anticipation about what it might contain.  That is understandable given that several failed and controversial attempts have been made to pass a reform bill over the last few years.  And that there were extensive hearings around the prior bill last summer that attracted a significant amount of commentary.  And that digital media is considered by many (e.g. the Canada 3.0 initiative) to be a crucial part of the economic future of Canada.

The anti-spam and privacy bills introduced last week are important bills that have effect on business and individuals alike. But the copyright bill fundamentally affects how every Canadian consumes media. 

Roughly speaking, copyright interests line up in two camps.

First, the entertainment industry, which wants tight controls on copying, including things like digital locks and notice and takedown provisions.

Second, consumers who want less control by media providers, and broader fair dealing rights.

It will be interesting to see what the bill looks like, what the reactions will be, and what changes may result from that reaction.  Fundamentally it is about balancing the various interests to give the right amount of protection to creators, while at the same time giving users reasonable rights to do the things we are accustomed to in this century, such as time shifting, format shifting, and perhaps downloading.  Clarity is important, as is language that doesn’t antiquate itself by tying it to specific technologies.

My message today is that this bill is important, and worthy of close, thoughtful scrutiny and discussion.

Techdirt has a post that’s worth a read that talks about a debate sparked by the NY Times and Computerworld about the ethics of downloading something you have already paid for.  Its an issue worth considering, especially in light of an expected new copyright reform bill in Canada.   It ties into issues about format shifting and whether copying is theft when it doesn’t deprive the owner of what they have.

For the London Free Press – April 19, 2010

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n December 2009, isoHunt, a BitTorrent and peer-to-peer search engine, was found liable by a U.S. District Court judge for inducing copyright infringement. The operator of the isoHunt website says he will appeal.

IsoHunt was founded by Canadian Gary Fung in January 2003. According to Wikipedia, thousands of torrents are added to and deleted from the website each day. Users of the website perform more than 40 million unique searches each month.

The isoHunt website is a file search engine, but according to its creator, it does not induce copyright infringement. This distinction is crucial because over the last few years, a number of peer-to-peer service companies have been shut down because they were deemed to have induced copyright infringement.

These players include Napster, shut down in 2001, Grokster and Morpheus, shut down in 2005, and TorrentSpy, shut down in 2008.

BitTorrent websites allow users to download files of any kind directly from the computers of other users. Fung says the isoHunt website is similar to a search engine, such as Google, as the website itself does not store any contents and the files are not downloaded from the servers of the websites, and thus should not be liable for inducing copyright infringement.

The U.S. District Court said Fung had solicited infringement of copyrighted files by the way he has designed his website and by comments he made in interviews and online. For example, the isoHunt website allows users to access the top searches or the top files by category. The website also links users to websites that have torrent files or that invite users to upload copyrighted files. The judge felt Fung was aware of the copyright infringement and actively induced the infringement.

More recently, Judge Stephen Wilson of the U.S. District Court in Los Angeles ordered isoHunt to remove all infringing content from its website.

“It is axiomatic that the availability of free infringing copies of the plaintiffs’ work through defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works,” Judge Wilson said.

Fung said Wilson’s injunction “amounts to nothing less than taking down our search engine . . . We’re discussing the mechanics, the process that is reasonable for an injunction. We’re still trying to hope that the judge will do the right thing.”

IsoHunt has also taken the initiative and sued the Canadian Recording Industry Association (CRIA) to get a court ruling regarding the legality of the website. This came before the Supreme Court of British Columbia in March 2009 for a summary judgment, but the court ordered the matter proceed to trial.

The line where someone becomes liable for a copyright infringement of another is not clear. U.S. courts have found some peer-to-peer service companies liable for providing tools that were deemed to be intended to be used for unlawful copying. But others have created services that essentially allow users to do the same thing but in a way that avoids liability for copyright infringement

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

We have seen much pressure over the years for governments to enact tougher laws for piracy and counterfeiting – often based on statistics that lead to conclusions that billions of dollars are being lost because of it.   

It leads to questionable things like three strikes laws, the Digital Economy Bill, and the ACTA treaty discussions.  Many people have questioned the statistics, and the conclusions based on them.

The US government accountability office (GAO) just released a report that concludes that while the problems are real, “Three widely cited U.S. government estimates of economic losses resulting from counterfeiting cannot be substantiated due to the absence of underlying studies”.  Also that assumptions are used to compensate for the lack of data.

For more commentary on this issue, see the reactions of Mike Masnick and Michael Geist.

For the London Free Press – April 12, 2010

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Copyright infringement: Even its own employees couldn’t keep track of everything it posted or left on the site as promotions

Three years ago, Viacom sued YouTube for $1 billion based on claims of copyright infringement for unauthorized posting of Viacom copyrighted material.

This case is complex and controversial. Until recently, many documents in the litigation were sealed and not available to the public. Summary judgment materials have now been filed and the parties have gone public with their complaints.

When the documents were released, YouTube’s chief legal counsel, Zavanah Levine, made this surprising blog post:

“For years, Viacom – a media conglomerate in the United States that owns such networks as MTV and Comedy Central – continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired 18 marketing agencies to upload its content to the site. It deliberately ‘roughed up’ the videos to make them look stolen or leaked. It opened YouTube accounts using phony e-mail addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy, Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users.

Executives as high up as the president of Comedy Central and the head of MTV Networks felt ‘very strongly’ that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well even its own employees couldn’t keep track of everything it was posting or leaving up on the site. Viacom demanded the removal of clips it had uploaded to YouTube, only to return to sheepishly ask for their reinstatement. In fact, some of the very clips Viacom is suing us over were actually uploaded by Viacom itself.”

If that is true, it seems inconsistent with Viacom’s lawsuit.

Viacom now states it does not take issue with how YouTube has operated since May 2008. In May 2008, YouTube integrated a Content ID system into its site, which permitted copyright owners to assert ownership over their own content. In doing so, the copyright owner can let YouTube know whether it wants the content blocked or monetized.

The Electronic Frontier Foundation’s take on the case is it comes down to Viacom seeking to change the law on copyright in the U.S. to ensure that online service providers be required to implement and pay for copyright filtering. This type of argument has already been considered and rejected by U.S. courts.

The Digital Millennium Copyright Act (DMCA) provides safe harbours for U.S. hosting providers. It provides a protocol for service providers to follow when anyone alleges someone has posted anything on the service provider’s service that infringes copyright. So long as the service provider follows the protocol, it’s not liable for copyright infringement.

The UK government rammed through a controversial bill that includes provisions similar to the much maligned three strikes laws.    

Its beyond me why governments insist on urgently passing this kind of thing without thinking it through, and without taking the time to really listen to various viewpoints, or understand where technology, the economy, and culture is headed.

Detail on the controversy can be found on the BBC news, Boing Boing, and Techdirt and another on Techdirt.

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

We have not heard much about this lately, partly because a summary judgment in 2007 stated that Novell owned the Unix code.   A jury confirmed last week that SCO had not acquired the copyright to Unix from Novell in an asset purchase agreement.

The significance of this to the world at large is that Linux was derived from Unix.  SCO launched a long standing battle claiming it owned Unix, and thus had rights to certain code within Linux, and thus the right to be compensated for Linux use. 

Apparently, SCO is not yet giving up though – there is some suggestion that it might continue the fight, however futile it might be.

For more details, see this Groklaw post.

I’ve written before about how the three strikes law that is in force in France, and is being contemplated in other countries, is fundamentally wrong.

Take a look at this short video interview from author Cory Doctorow that puts it in perspective.