Category: Uncategorized

The Associated Press has apparently decided to fold its tent and exit the blogosphere copyright battlefield, at least for now. According to a statement by Rogers Cadenhead, the newswire and he have reached a settlement of some kind, in which the AP has agreed to not pursue further action against him over excerpts from AP stories posted to his site The Drudge Retort. A statement by the Associated Press said:

“The AP was able to provide additional information to the operator of the site, Rogers Cadenhead, on Thursday. That information was aimed at enabling Mr. Cadenhead to bring the contributed content on his site into conformance with the policy he earlier set for his contributors. Both parties consider the matter closed.”

As Rogers notes in his post, however, the AP declaring the matter closed does nothing to resolve the larger conflict between how AP interprets fair use and how thousands of people are sharing news on the web (a conflict that — if it were to go to court — the Electronic Frontier Foundation and others say AP would likely lose). I am inclined to agree with Salon founder Scott Rosenberg, who says:

“What this means, I’m afraid, is that the AP/Drudge Retort matter has not been the resolution of anything at all, and that we are likely to see a larger and longer conflict unfold, between the AP’s efforts to nail down its rights to smaller and smaller bits of its content and the desire of bloggers (and their readers) to quote headlines and brief excerpts.”

Continue reading “AP battle over, copyright war still on”

The latest artist to try the “pay what you want” album release idea is Girl Talk, a club DJ whose real name is Gregg Gillis. His latest compilation of remixes and mashups is called Feed The Animals, and is available through a link on his MySpace page or through the website for his record label Illegal Art. Regardless of what you pay, you get a zip file of the entire record as high-quality mp3 files (320kbps, which is pretty good). If you pay five bucks or more, you can download uncompressed FLAC files, and $10 gets you the files as well as a copy of the CD when it comes out in September. This reminds me of the recent Mission: Metallica offer.

If you offer to pay nothing for the download, you get sent to a page with a form that asks you why you are paying nothing, and then gives you a series of check boxes, including:

— I may donate later
— I can’t afford to pay
— I don’t really like Girl Talk
— I don’t believe in paying for music
— I have already purchased this album
— I don’t value music made from sampling
— I am part of the press, radio, or music industry
— Other reasons

It’s interesting that one of the options is “I don’t value music made from sampling.” As the name of Girl Talk’s record label suggests, sampling and mashups of the kind he is known for are in some ways on the edge of what is legally permitted (and have been the subject of numerous lawsuits in the past, including the one over DJ Danger Mouse’s Grey Album, which was a remix of the Beatles White Album and Jay-Z’s Black Album). Some might think it’s a little presumptuous to charge for music that is essentially just a remix of other people’s music, which some Girl Talk fans may already have paid for.

Continue reading “Girl Talk’s new album: Pay whatever”

The trickle of Yahoo executive departures has turned into an all-out flood, it seems, with at least two more senior VP types headed for the escape pods, and another — Brad “Peanut Butter” Garlinghouse — widely expected to join the exodus. But is this a much-needed clearing of the decks in order to put the good ship Yahoo on the right course, or is it rearranging the deck chairs on the Titanic? In other words, is Sue Decker clearing out the deadwood, or setting fire to the furniture? There seem to be plenty of opinions on both sides.

According to commenters at Silicon Alley Insider (who appear to be Yahoo insiders) Qi Lu — who was executive VP in charge of search and ad technology — is either a genius (with 20 patents to his name, according to Kara Swisher) and the guy whose talents helped get Yahoo’s fancy new Panama engine up and running, or he’s the guy who is most to blame for the lateness of Panama in the first place and the lacklustre performance of it after it finally launched. Or maybe Yahoo doesn’t need any more search geniuses now it has gotten in bed with Google?

As for Garlinghouse, he’s the guy who diagnosed Yahoo’s problems as “spreading the peanut butter too thin” in an infamous memo that got widely leaked in 2006. Was that just a play for power within the Yahoo executive suite, or was Brad really sincere about the company’s need to change? Whatever his motivation, it appears that Yahoo will be changing without him, according to TechCrunch and PaidContent (Kara says he hasn’t quite decided yet). Given that he’s in charge of Yahoo Mail, Messenger, Groups and Flickr, his departure would leave a pretty large hole. Does Yahoo have the bench strength to fill it?

One commenter at Silicon Alley Insider makes an interesting point: everyone says that Yahoo is too bloated with executives and top-heavy and management-centric and so on, but then when the company shoves some people out the door (or fails to respond when they decide to leave) everyone says the rats are fleeing the sinking ship. The big question is: do Sue Decker and Jerry Yang have a vision for whatever’s left once all the departures are done with?

I was talking with someone at work about Yahoo’s much-heralded launch of two new email domains, Rocketmail (which is actually an old domain resurrected) and Ymail, and despite much back-and-forth about it, I still couldn’t really see the point, and in fact still don’t. I mean, I’m familiar with the rationale given by Yahoo, which is that there are lots of people out there who haven’t signed up for email because they can’t get their name, or their favourite nickname, or whatever. And maybe there’s some truth to that. But how many of those people could there possibly be? Is this really a market segment that is crying out for Yahoo’s help?

A couple of other things that struck me: 1) Are people really going to switch that easily from [email protected] or whatever (or [email protected]) to a new Ymail or Rocketmail address? Every time I’ve switched from one email to another it’s been a gigantic pain in the ass, and I have vowed to never do it again — there are all those people you have to spam with your new mail. It’s a nightmare. That’s why I got a Gmail address in the first place, so that when I changed Internet providers I could just redirect my mail to that address. I personally know of several people who pay two ISPs, simply because they don’t want to give up their old email address.

And those are the old folks. Point number 2) Anyone younger than about 30 doesn’t seem interested in having an email address period, let alone caring whether it’s [email protected] or whatever. My teenaged daughters and their friends never use email anyway — they text message (in which case all you need is a phone number) or they use Facebook messages as a way of communicating. I send them email and they never get it. Do they have email addresses? Yes, and they are a combination of their names, underscores, numbers and nicknames, and so on — and they couldn’t care less. Not exactly a huge market opportunity there either, I wouldn’t say.

In a lot of ways, Yahoo seems to be fighting a war that has already been won — which, given some of the other things that have been going on at the company over the past couple of years, probably isn’t all that surprising. I was trying to think of an analogy for this latest campaign, and it’s a little like the company has decided to announce a new kind of typewriter where the keys don’t stick as much, or a better version of the pay phone, or a new video-tape recorder. In other words, WTF?

Is nothing ever simple in the blogosphere? Apparently not. I thought the Associated Press copyright-infringement debacle involving Rogers Cadenhead and his site The Drudge Retort was just a ridiculous move by a short-sighted traditional media organization, trying to somehow shove the social-media genie back into the bottle. Don’t get me wrong — it’s still all of that. But now, it’s also turned into a murky tale involving conflicts of interest (or allegations of same) and the somewhat tangled history of something called the Media Bloggers Association.

The conflicted part comes from a post by Mike Arrington at TechCrunch, in which he notes that Saul Hansell — blogger and technology editor at the New York Times — has written three posts about the brouhaha, each of which seems to be arguing that bloggers have gotten it all wrong, and the latest of which says that Digg co-founder Jay Adelson supports the Associated Press, which turns out to be… well, wrong. Saul also says that he finds it significant that:

“Mr. Adelson, a leader in the Web 2.0 world, takes a view that is a bit different than the content-must-be-free orthodoxy that has been thrown around so violently.”

I for one don’t recall any “content must be free” orthodoxy being thrown around, violently or otherwise, although it’s possible I may have missed something. I do recall a lot of people writing about the chipping away at the concept of ‘fair use’ that the AP’s case against Drudge Retort represents, which I think is something quite different. In any case, Mr. Hansell was also instrumental in another part of the controversy, which started with a somewhat huffy post by Media Bloggers Association founder Robert Cox, who says he got involved in the Cadenhead affair after Rogers asked him to help (on the advice of Culture Kitchen).

Continue reading “AP and the Media Bloggers Assoc.”

The venerable New York Times has launched a new social-networking style feature to its site, called TimesPeople. In its early incarnation, it involves downloading an extension to use with Firefox (interestingly enough, the site doesn’t seem to care about Internet Exploder users — only going after the early adopters, apparently). Once you install it, you get a toolbar that you can use to save or recommend stories from the Times website, and other users with the extension can see what you’ve saved. In other words, a kind of del.icio.us plugin for the New York Times cognoscenti. On the TimesPeople information site, it says that with a future release, no browser plugin will be required.

I don’t want to be too hard on the Times — I think adding social-browsing and social-networking elements is a great idea, and I don’t want to dissuade either the NYT or anyone else from giving them a shot. But the NYT effort feels like it doesn’t go far enough. Why? Because the service contains exactly what it says on the tin: TimesPeople, and only TimesPeople. In other words, it’s for people who just read the New York Times, and all they really care about is what other people who read the New York Times care about.

I’m not saying that isn’t a valuable thing — at the Globe and Mail site, we do something similar by allowing users to click a button and recommend a story, and then see the most recommended (and most emailed, and most commented) on a “most popular” aggregation page. And I think that has value for regular readers. But what about connecting the site to the rest of the Web? The Times has taken a step in that direction with its integration of BlogRunner on its technology page, but there is so much more that could be done. And while TimesPeople connects one way (through RSS feeds of saved content) it doesn’t look like anything feeds back in the other direction. Why just show people the popular NYT content — why not the most popular from elsewhere? Why not integrate something like Scott Karp’s Publish 2.0 tool?

I guess my problem with the feature is that, like so many of the things that mainstream media sites such as the Times do (and I’m including the Globe in this), it plays to the traditional — and, I think, flawed — “portal” strategy, which assumes that everyone comes to the site as a destination and spends most of their time there, and is only interested in what happens there. I think that describes a relatively small (and declining) segment of the online population.

The global music agency known as the International Federation of the Phonographic Industry (hey guys, how about updating the name?) has come out with what it says are some depressing numbers for worldwide music sales for 2007, and — perhaps not surprisingly, given the group’s history — it is using the new figures to lobby ;for legislation that would force Internet service providers to nab illegal music downloaders.

According to a report in the Times of London, the agency said that sales of music last year fell to their lowest level since 1985. That year, total sales of recorded music hit 1.8 billion units (i.e., albums). In 2007, the IFPI says that the equivalent of 1.86 billion units were sold, down from the previous year’s 2.09 billion.

According to the industry group, last year’s numbers include paid-for downloads of individual tracks, with 10 downloads equivalent to one traditional album. CD sales fell by 13 per cent last year, the IFPI says, although it’s not clear whether that number refers to actual sales or to the decline in shipments to music retailers.

Naturally, the IFPI blames rampant file-swapping through peer-to-peer networks such as BitTorrent for the decline in sales (despite the fact that several studies, including one sponsored by Industry Canada, have shown that downloads don’t lead to a sharp drop in music purchases, and may in fact lead to an increase in music buying by downloaders). Although the industry group mentions the rise of paid downloads — which climbed by almost 35 per cent on average — it seems almost like an afterthought.

As it has for the past year or so, the IFPI used the sales announcement as another opportunity to push ISPs to police the downloading of music files, and lend their support to the idea of a “three strikes” law — which would see Internet customers cut off after three cases of illegal downloading. Virgin Media, one of the largest ISPs in the UK, has already started voluntarily sending its customers letters when asked to by the British Phonographic Industry (the British version of the IFPI).

According to the Times story, IFPI head John Kennedy said that the group “wants ISPs to reveal details of their customers who illegally share music and possibly cut off any subscriber who breaches copyright three times [and said that] providers should engage constructively, before the tools of legislation or litigation were invoked to require them to act.”

My favourite billionaire sports-team-owning blogger, “Megaphone” Mark Cuban, had a blog post yesterday about how Hulu — the streaming video site from NBC — is “kicking YouTube’s ass,” a theory that has been getting some reaction from various places in the blogosphere today. The reason for the post would be fairly obvious to regular readers of Blog Maverick even if Mark didn’t point it out, but to give him credit, he has put it right there in the lede of his post:

“It is coming up on 2 years post my declaration that only a moron would buy Youtube and that Google was crazy for actually going through with it.”

In a nutshell, Mark argues that “the Youtube business model is broken, and there is no light at the end of the tunnel as they are currently constructed.” Why? Because they can’t sell ads, and never will be able to, and therefore YouTube “has become the poster child for the old saying ‘we are losing money on every sale, but we will make it up in volume’.” Meanwhile, he says, Hulu is selling pre-roll and post-roll and every-other-kind-of-roll ads on their clips at YouTube, which drive traffic to their site, on which they sell ads — and so on. RIP, YouTube.

I think Mark has a point as far as YouTube’s monetization goes — but it’s a very small point. Yes, YouTube may have difficulty selling as many pre-roll and post-roll and other kinds of ads as Hulu can, since Hulu has the kind of mainstream, TV-style content that advertisers love. At the same time, however, pre-roll and post-roll aren’t the only kinds of video monetization, especially when you’re Google. And YouTube looks to be branching out as well.

I also think that Ashkan Karbasfrooshan of WatchMojo has a point when he says that to some extent YouTube and Hulu are apples and oranges. In other words, they are kicking different asses, so to speak. People go to Hulu to watch episodes of House or The Sarah Connor Chronicles or whatever, and people go to YouTube to see the latest funny cat video or something equivalent — those are two very different needs, and both valuable. Terry Heaton makes a similiar point on his blog.

In most cases, I’m all for a dose of rationality and common sense amid the short-attention-span Drama 2.0 that makes up much of the blogosphere. That’s exactly what New York Times blogger Saul Hansell is selling in his latest post at the Bits blog, in which he argues that the Associated Press copyright kerfuffle is just a silly misunderstanding. In effect, Hansell argues that Mike Arrington and Jeff Jarvis should quit whining and work with the AP to figure out how much of their newswire copy bloggers can reference without getting a “cease and desist” letter (if you need help with the background, see this post and also this post).

“What the A.P. is offering has the potential to be a great deal more constructive than Mr. Arrington and Mr. Jarvis suggest.”

Does it really though? I don’t want to be accused of succumbing to Godwin’s Law, but I would argue that a dialogue with the AP has about as much chance of being “constructive” as Chamberlain’s discussions with Hitler over the fate of eastern Europe. Just as that dialogue resulted in the loss of much of Czechoslovakia, I think a discussion with AP about how much bloggers can quote and under what circumstances is a mistake — and as Mike Masnick of Techdirt notes in a comment on Saul’s post, the AP hasn’t exactly shown itself to be open to a discussion. It seems to want to dictate terms. Saul says in his post:

“More important, the A.P. could well offer bloggers a safe harbor to use its content under certain circumstances without asserting a claim that every use beyond that line is copyright infringement.”

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

As I’ve said before — both in my posts and in the back-and-forth I had with Cyndy Aleo-Carreira of Profy on her post — I have no issue with the AP sending C&D notices to sites that re-publish their content holus bolus, or fail to give attribution, or are in competition with the news service and therefore threaten their business model. But I don’t think The Drudge Retort falls into any of those categories, and I agree with Techmeme’s Gabe Rivera that AP’s attempt to extend its reach to that and other blogs or social media sites is a dangerous move.

Update:

Dan Lewis of Wikia and ArmchairGM has a guest post at Centernetworks in which he argues that AP’s case is better than some might allow, and David Ardia (director of Harvard’s Citizen Media project) has a counter-argument at MediaShift. Meanwhile, the Associated Press has a web form up where you can click to pay $12.50 for the right to quote five words from an AP story. Yes, that’s right — five words. I am not making this up.

Not content to just distribute DMCA “notice and takedown” letters to unsuspecting websites like The Drudge Retort — a community news blog that is about as far from a commercial media entity as you can get — for excerpting its news stories, Associated Press has decided to create new rules about how much of their content blogs and other websites can quote. No doubt the newswire thinks this is being helpful, but Mike Arrington has taken it as an all-out declaration of war, and he is taking no prisoners. No more linking to or referencing any more AP stories, says TechCrunch. They don’t exist, says Mike.

“The A.P. doesn’t get to make its own rules around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of property rights that don’t exist today and that they are not legally entitled to.”

In the New York Times piece about this move, AP vice-president Jim Kennedy — the same one whose statement was pasted into the comment section of multiple blog posts on the Drudge Retort story, including mine — says the newswire has backed off its original approach after criticism, and admits that it was “heavy-handed.” The language he uses is one of reconciliation and compromise:

“We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

And yet, AP hasn’t retracted its notice to Drudge Retort or its demands that the site remove excerpts, which in some cases amount to as little as a few sentences. According to the NYT story, the news service “still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones.” In other words, the Associated Press would rather that you don’t use any excerpts whatsoever from an AP story, but instead rewrite a brief summary. As Scott Rosenberg of Salon correctly notes, this is absurd — fair use principles should apply to short excerpts, especially if they link to the original source. Trying to ban any excerpting at all is ridiculous.

Kennedy tells the Times that the AP is “not trying to sue bloggers. That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.” And yet, that is very clearly the road that the newswire is going down — and it is a fool’s game, as the record industry has discovered in spades. If nothing else, it will help to demonstrate just how irrelevant the AP is. It is trying to make its content more valuable, but instead it is making it less so.

Update:

The boycott is a lot wider than just Mike Arrington and TechCrunch — a grassroots anti-AP campaign has swung into action, and Richard Kastelein of Atlantic Free Press has set up a website called unassociatedpress.net with a petition people can sign, as well as a number of “boycott Associated Press” badges for websites and blogs. Jeff Jarvis says that AP has “declared war” on bloggers.

My friend Kara Swisher at All Things D seems convinced that Microsoft has shelved its offer for Yahoo for the last time, since a number of senior Microsoft executives “close to the dealmaking” told her they have walked away from the table for good, and have no interest in acquiring the troubled Internet giant — not even if Jerry Yang is ousted as CEO, or the stock drops below $20. I have no doubt that sources told Kara that, since her contacts are usually impeccable. But I think they (even this guy) are still bluffing, and are ready to pull the trigger on a Yahoo deal.

Why do I think that? Unlike Kara, I have no inside sources at Microsoft with knowledge of a deal. But I can’t help but think that if an acquisition of Yahoo made any sense whatsoever at $33 a share, how could it not make even more sense at $23 a share? (I’m not the only one who thinks so) Presumably Microsoft saw synergies between Yahoo’s search business and its own that made a takeover look worthwhile, or it wouldn’t have pressed so hard to get a deal done. So what has changed? Not much — except that Yahoo’s stock has tanked and the company needs Microsoft more than ever.

Yes, Yahoo has cozied up to Google and sold the soul of its search business. But the Google search deal isn’t exclusive, and there isn’t even a “kill fee” if Microsoft acquires Yahoo and then tells Google to take a hike. And I have to think that seeing Google get its hooks into Yahoo has to make Microsoft want the company even more.

In what I hope has (or will) become a tradition of providing more thoughtful topics to chew on over the weekend (if there aren’t any bitchmemes to kick around, that is), I wanted to point to a fascinating debate underway at the Cato Institute’s blog Cato Unbound. It’s about copyright — an issue that I think is at the heart of many disputes involving new media, with the recent Associated Press flap being just the latest example (for info on some others — including the recently proposed Canadian copyright law — you can check here).

The Cato Institute is a libertarian-oriented (or “classically liberal”) think tank, and it describes Cato Unbound as “a state-of-the-art virtual trading floor in the intellectual marketplace, specializing in the exchange of big ideas.” The first shot in the copyright debate was fired by Rasmus Fleischer, a Swedish historian and writer most notable for being a co-founder of the Piracy Bureau, an organization aimed at abolishing (or at least heavily modifying) copyright, and one that is loosely affiliated with The Pirate Bay. Among other things, The Pirate Bay maintains one of the largest indexes of copyright-infringing material in the world, and is currently the subject of a massive lawsuit by the record and movie industries. Fleischer begins with a question:

“How relevant is it to declare oneself to be “for” or “against” copyright? Neither the stabilization nor the abolition of the copyright system seems within reach. All we see is a seemingly endless assembly line of new extensions to the law being proposed and enacted.”

Fleischer goes on to talk about how “every broken regulation brings a cry for at least one new regulation even more sweepingly worded than the last” and says that copyright law in the 21st century “tends to be less concerned about concrete cases of infringement, and more about criminalizing entire technologies because of their potential uses” — something that Canada’s proposed legislation demonstrates in spades, as Michael Geist notes. Fleischer also quotes Kevin Kelly, saying: “When copies are superabundant, they become worthless, while things which can’t be copied become scarce and valuable. What counts in the end are ‘uncopyable values,’ qualities which are ‘better than free.'” Mike Masnick of Techdirt made similar comments during his recent mesh 2008 presentation about “the economics of abundance.”

Continue reading “Copyright: a debate at Cato Unbound”

Sometimes a news item comes out of nowhere, and it feels like a press release went through a time warp and just arrived from a decade ago. Rogers Cadenhead is a programmer and writer who set up a site called the Drudge Retort about 10 years ago, as an alternative to the right-wing Drudge Report. He says the Associated Press news agency has filed DMCA takedown requests for several items on the site, alleging that excerpts and links constitute an infringement of copyright and “a misappropriation of ‘hot news’ under New York State law.” This (as the philosopher Jeremy Bentham once put it) is nonsense on stilts.

The AP case is similar to a number of other cases the agency has launched over the past year or so, including one against the headline news service Moreover (which was started by Nick Denton of Gawker fame), and another against a service called All Headline News. But those cases involve companies whose sole business is distributing headline news to a variety of other sites — something the AP theoretically has an interest in curbing (or at least being compensated for).

The Drudge Retort, as far as I can tell, isn’t anything like that. Rogers Cadenhead doesn’t even put together the content on the site — it’s an aggregation of links and comments from a community of users. To me, that puts it even farther out of the range of the AP’s professional concerns, especially since the headlines and brief excerpts are linked back to the original source, just like Google News does. The bottom line is that the press agency’s case constitutes yet another in a series of creeping assaults on the idea of ‘fair use,’ as can be seen by the comments of the AP’s lawyer in a letter to Cadenhead:

Continue reading “Someone please buy AP a clue”

If you smell anything wafting from Yahoo’s headquarters in Sunnyvale, it could be the rising stench of desperation. Unable to conclude a deal with Microsoft — for a variety of reasons that range from bizarre to ridiculous — the faded Internet giant has been reduced to signing a deal with Google to take over some of the advertising on its Web properties. As someone mentioned in one of the comments I saw, this is like Ford signing a deal to have its cars built by Honda (or like this). It is, effectively, an admission of failure — a failure to monetize its own assets properly, and ultimately a failure to compete in search period.

Google’s blog post about the deal takes pains to point out that this “does not remove a competitor” from search, and “does not allow Google to raise prices for advertisers,” and so on — in a commentary that is so obviously designed to placate the U.S. government that it might as well start out with the words “Dear Anti-Trust Investigators” — but the fact is that Yahoo doing such a deal means its search will inevitably wither even faster than it already was. It would be almost cruelly ironic if Microsoft, which has been on the receiving end of so many anti-trust machinations in the past, were to use anti-competitive issues as a cudgel with which to beat Yahoo into accpepting a low-ball takeover.

For more details on the deal, you can see live notes from the conference call at Silicon Alley Insider and Erick Schonfeld over at TechCrunch has put together some as well. I know I should care, but I confess that I have virtually no interest in this deal whatsoever.

Update:

TechCrunch has the text of the agreement between Yahoo and Google, which was filed with the SEC. Interestingly enough, it describes a $250-million “kill fee” that has to be paid if the deal is severed due to a takeover of Yahoo — unless that takeover is an acquisition by Microsoft.

Six months after it was first scheduled to hit the legislature, the government’s proposed copyright law was tabled in the House this morning, giving critics a first look at the law that they have been rallying against for the better part of two years. Although Industry Minister Jim Prentice is trying to rally support for the bill by calling it a “made-in-Canada” solution, prominent opponents such as law professor Michael Geist have made it clear they believe most of the new law’s features have been dictated by outside interests — including the global record industry, U.S. movie studios and other foreign content industries — and have called it “a carbon copy of the DMCA.”

The truth is that the proposed legislation is somewhere in between — in good and bad ways. There are areas in which the Canadian law differs dramatically from the U.S. DMCA — most notably, the use of a so-called “notice and notice” approach when it comes to the liability of Internet service providers for copyright-infringing content, as opposed to the U.S. “notice and takedown” approach. The U.S. law has been criticized by many for effectively forcing services such as YouTube to remove content even when it’s not clear whether it actually infringes copyright, such as when it could fall under the “fair use” exception in the law (Canada has a similar, but more restrictive, concept called “fair dealing”).

Another element of the proposed Canadian law is that the personal (or “non-commercial”) liability for infringement has been reduced from $20,000 per infringement to just $500 — and that’s for each case brought by a copyright holder, even if it involves multiple offences; the existing legislation provides for damages of $20,000 per file. It’s important to note, however, that the reduction doesn’t apply if the person doing the infringing has cracked, broken or otherwise gotten around any digital-rights management controls on the content. Those cases would still be open to the $20,000 per infringement damages that are in the current law.

Continue reading “Canadian copyright bill: Good and bad”