My favourite story is how Jon Postel took over the internet by asking eight maintainers of root DNS servers to stop listening to Network Solutions and instead listen to to his own. He was shortly told to revert the changes and that any similar attempts would result in him being charged. Why did he do it? Was it a simple test, as the official story goes, or was it a way of showing that the US government did not have sole power? Perhaps a protest of the Network Solutions monopoly? Unfortunately he passed on nine months later so we’ll never know.

The short of the book is that every country has some control through pressuring intermediaries within its control. It may be local ISPs, or local subsidiaries. France was able to impose its law on Yahoo by threatening a subsidiary in France. The US DOJ was able to seize domains of sites it couldn’t control because the registrar was located within the US. It’s the same way that multinationals can be threatened by countries they’re located in, and if you don’t have a multinational presence you don’t need to worry. (Note that having your registrar in a country other than your own can count as multinational presence!)

Kieren McCarthy has a fantastic, detailed review. He as a domain expert he explains the strengths and adds a piece about ICANN. What I’d like to add is a context to an offhand comment within the book about Landslide being a purveyor of child pornography. Landslide was instead a payment processor and I believe that they were taken advantage of by fraudsters and are themselves victims. The website Operation Ore Exposed tells the story from Landslide’s point of view.

The book gives a clear view of the complex power structure that governs the internet and proves that cyberspace is dead. What ought to be the next big question? My guess is “who owns your data?”

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Just over a year ago the suit against Turnitin.com reached its first decision. The appeal has just been released and analyzed by the folks of Ars Technica.

First off I’m pleased that the legal decision is OCR’d this time so I can copy and paste pieces more easily. The appeal reaffirms that turnitin.com’s use was transformative even though it did not modify the copies, and also fair use. Among other things the legal decision spells out why the ability of a third party to download full papers by searching for a common phrase was not considered.

Plaintiffs also alleged that the Turnitin system offends copyright law because it “may send a full and complete copy of a student’s unpublished manuscript to an iParadigms client anywhere in the world upon request of the client, and without the student’s permission.” J.A. 22. Plaintiffs, however, have not produced any evidence to demonstrate that this occurredwith respect to the plaintiffs’ works at issue here. Accordingly, we confine our review of the copyright issues to iParadigms’ practice of archiving documents.

There’s no evidence that the described copyright infringement occurred so it won’t be considered. I expected it wasn’t considered because that would be the downloader’s fault, not the service’s.

See the Ars Technica article or my previous post for a more detailed analysis.

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• Copyright & Fair Use (slideshare.net)

The proposed production order would require a third party, such as a communication service provider, to make data or information in its possession or control available to investigators within a specified time period, as set out in a court order. Under a production order, the service provider would provide the data or information to police, thereby eliminating the need for a police search. Production orders would be subject to the safeguards already in place for search warrants.

That FAQ is intended to describe the old Lawful Access bill but the paragraph doesn’t explain that subscriber data would have been available without a court order, potentially including handing over subscriber names and addresses associated with an IP address, putting it well below any safeguards in place for a search warrant. The thought of ISPs freely giving up subscriber data without court order caused Sympatico some headache earlier. I’m glad that Jennifer Stoddart, our Privacy Commissioner, is stepping in.

Update 15/02/2009: Ars Technica has a story on an Ontario court ruling that says there is no expectation of privacy on the internet. It’s a little worrying but doesn’t seem to change much. Law enforcement was always able to ask an ISP to fork over subscriber information, and ISPs were allowed to, just not required to.

On whether makers of P2P software would face liability.
Henderson: Who do we go after? … You want to be able to go after a major. If you have torrent sites like, Pirate Bay for example, that’s who you want to target.

On China issue: Impact on issue of IP Rights. Different philosophy and different legal framework. Eg. of cell phone networks as largest distributor of software.
Mcteague: Bigger issue than forcing policy on China is dealing with counterfeits that arrive in Canada.

To EMI: Consumer or enabler.
EMI: Never going after the consumer. Not the Canadian way. Canada in particular found an interest in “education.” Education didn’t work. Now work through gov, trying to make consumers happy.

Post-sec: What do you do about educational use?
Answer: Lack of understanding of what is infringement. Movements towards best practices.

If I did have a recorded copy it would be to suss out something that I think I heard Henderson of CRIA say in the closing comments. I may be imagining things, but what he said sounded like something from Lessig at first.

Update: Michael Geist attended. He has a much better write up.

I’m going, and I’m considering whether or not to liveblog it. I have the unfair advantage of having wifi access unlike all non-student attendees.

It played out differently than what I expected. First off, Turnitin’s use was considered transformative and fair use. That’s not a huge surprise. Also, the fact that a user could enter in a Shakespearian quotation and receive a full copy of a student’s paper who used it was not brought into the case. I guess that’s because the user would be infringing, not Turnitin.

The big surprise for me was that the minors were held to the contract that they clicked through, and it was not found to be agreeing under duress. Apparently in Virginia it’s not duress if pressed by a third party (the schools in this case), and even if it were it fell short of the “unlawful or wrong act” test. Besides that, Virginia law has interesting nuances when it comes to minors entering contracts.

Taken from the decision:

…

In Virginia, a contract with an infant is voidable by the infant upon attaining the age of majority. See Zelnick v. Adams, 263 Va. 601, 608 (2002) (citing Mustard v. Wohlford’s Heirs, 56. Va, (15 Gratt.) 329, 337 (1859)). However, the infancy defense cannot function as “a sword to be used to the injury of others, although the law intends it simply as a shield to protect the infant from injustice and wrong.” MacGreal v. Taylor, 167 U.S. 688, 701 (1897). In other words, “[i]f an infant enters into any contract subject to conditions or stipulations, he cannot take the benefit of the contract without the burden of the conditions or stipulations.” 5 Williston on Contracts 9:14 (4th ed. 2007).

Plantiffs received benefits from entering into the Agreement with iParadigms. They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of good standing to bring the present suit. Plaintiffs cannot use the infancy defense to void their contractual obligations while retaining the benefits of the contract. Thus, Plaintiffs’ infancy defense fails.

…

Wow. Standing to sue is considered a benefit? If that was the only reason that the infancy defense was rejected I’d be very upset.

More details are at Ars Technica.

From the article,

He points out that Canadian labels have not chosen to sue their fans, but then goes plaintive for a moment, saying, “We get absolutely zero credit for that.”

The problem is that CRIA did chose to sue their fans. They sued twenty nine of them but the case failed. This isn’t the first time that Graham Henderson has given a similar denial either.

How is this quotation truthful? Maybe labels didn’t chose to sue, but CRIA did so without representing them? Maybe he misspoke and meant to say that “labels chose not to sue after our failed attempt”? Did Nate misquoted him?

In any case, CRIA deserves no credit for not suing fans. I’m only grateful that they haven’t managed to do so on the scale of the RIAA and stopped after their first lawsuit.

The decision continues by stating that this interpretation is consistent with the intent of the Copyright Act and Parliament, concluding that “to rule that digital recorders are not audio recording media does not serve the purpose of the Act or that of Part VIII [the private copying provisions]. It instantly makes the conduct of millions of Canadians illegal, and even possibly criminal.“

Take a look at the private copying section of the copyright act. Specifically, sections 80 and 82. Section 80 is what gives us Canucks the ability to copy for personal use. It says that “the act of reproducing all or any substantial part of … onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.” Guess what? Section 82 says that there’s a levy that must be collected on a recording medium. Without the levy on your iPod, private copying exemptions don’t apply when you copy to it. That’s what the judge meant when he said the conduct of millions of Canadians is illegal without it.

So why did Apple push to get rid of the levy? Most likely just to increase sales by lowering the effective cost to Canadians, but I bet leaving iTunes the only explicitly legal way to get music on your iPod wouldn’t dissuade them.

Dr. Geist goes on further to suggest that “given the Board’s view that the levy potentially applies to any device, including personal computers, it also provides further confirmation that peer-to-peer downloading is covered by the private copying levy.” That’s not to say that anyone with a computer is entitled to download over peer to peer right now. It just means that computers could be levied. Which brings me to another couple questions: Since I didn’t pay a levy on my hard disk is it legal for me to rip my CDs to it? Is peer-to-peer considered distribution?

David Wheeler has recently written a slide on what popular FLOSS licenses mix and how. It includes the latest draft of GPL3. He’s posted it to his blog and he’s looking for comments. It doesn’t pack much depth into its one page but it gives a quick overview of what additional responsibilities are tacked on when combining MIT and BSD licensed code, for example. Not every combination has this incremental responsibility or reserved rights delta yet. Finding out if one piece of licensed code can mix with another is as easy as following a flow chart. Very cool.

First, Dr. Geist finds out through the blogosphere that he’s being sued before he’s served papers. How’d he do that? Does he have a Google blogsearch alert for “michael geist lawsuit”? Just good luck on his feedreader?

Second, this is his chance to help shape the law that he’s going to write about. Is he annoyed or grinning right now? I want a webcast of the papers being served! In any case I expect he’ll have a positive impact on cyberlaw convention.

Third, he’s being sued in BC. I expect he’ll be facing a UBC lawyer. The UBC cyberlaw textbook was written by Michael Geist. I picture a young lawyer shaking when he realizes he’s going after the man who wrote the book he learned from. Granted, the lawyer might not have gone to UBC and he might have gone before Dr. Geist’s 2003 book was in use, but I still love the mental picture.

I don’t know if this’ll ever go to court but if it does: Michael, good luck!