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Technology law column by Michael Geist

Why Are Consumers Missing from the CRTC's Online Video Ruling?

Earlier this year, the Canadian Radio-Television and Telecommunications Commission launched a consultation into the policy implications of increasingly popular Internet-based video services such as Netflix. The consultation was the CRTC's response to broadcaster and cultural groups including Bell Media, Astral Media, ACTRA, the Canadian Media Production Association, and SOCAN, who formed the Online Broadcasting Working Group to urge it to step up to the regulatory plate.

While many feared the CRTC would jump at the chance for new Internet regulation, last week it surprised observers by rightly concluding that its consultation generated plenty of rhetoric about the dangers of an unregulated over-the-top video services market, but no evidence of real harm. Given the lack of evidence and the absence of entry barriers for Canadian companies to establish their own competitive offerings, the CRTC decided to open a "watching brief" with the promise to revisit the issue in another fact-finding exercise next year.

The CRTC decision concluded "it is best to allow the over-the-top market to continue evolving, better measurement tools to emerge and entities that contribute to the policy objectives of the Act to take advantage of the many opportunities in this new environment."

Hurt Locker File Sharing Lawsuits Put the Hurt on Everyone

File sharing lawsuits involving the movie the Hurt Locker have been big news in the United States for months as tens of thousands of lawsuits have been filed against individuals alleged to have illegally downloaded the movie. The lawsuits have now made their way into Canada as the Federal Court of Canada has ordered the identification of subscribers at Bell Canada, Cogeco, and Videotron who face similar copyright infringement claims.  

Late last month the court ordered the three ISPs to disclose the names and addresses of subscribers linked to IP addresses alleged to have copied the movie. The ISPs complied last week as lawyers for the Hurt Locker copyright owner moved to have their case treated as a "specially managed proceeding" that would put the case on a rocket docket.

The lawsuits hurt seemingly everyone. The dozens of targeted Canadians will feel the greatest pain given the prospect of paying thousands of dollars in copyright damages, settlement fees, or legal costs for downloading a single movie. Canada is in the distinct minority of countries worldwide since it has statutory damages that allow a court to impose damages as high as $20,000 per infringement irrespective of the actual damages (most countries require evidence of the actual damages).  

Digital Issues Largely Missing From Ontario Election Campaign

The Ontario election campaign kicked off last week with the Liberals, Progressive Conservatives, and NDP promoting their policy platforms and quickly jumping into debates on the economy, health care and education. While the dominance of those three issues is unsurprising, those Ontarians hoping for some discussion of digital policy were bound to be a bit disappointed.

The Liberal platform references the importance of jobs in the technology and media sectors, but offers little else on the digital economy. The Progressive Conservatives are the only party to make a commitment to open government - their platform follows developments in many other jurisdictions that pledge to make government data more readily available for public use - but other digital issues are ignored. The NDP makes no reference to digital policies at all.

The federal government tends to lead on digital policies, though its much-anticipated digital economy strategy is months overdue. Yet for constitutional reasons that grant the provinces jurisdiction over property and civil rights, many important issues fall to the provinces.

Questions Remain as Digital TV Transition Deadline Arrives This Week

Canada was scheduled to complete the digital television transition this week, with stations switching their over-the-air broadcast signals from analog to digital. The transition represented a tremendous opportunity to advance the Canadian digital agenda leading to higher quality digital over-the-air broadcasts, freed-up spectrum that could be used to facilitate greater telecom competition, and the promise of billions in new revenues to fund a national digital strategy. 

RIM's Woes Partly Based on Canadian Telecom Policy

The past year has not been kind to Research in Motion Ltd., Canada’s leading technology company. The Waterloo-based maker of the BlackBerry smartphone has seen its share price nosedive in the wake of less than stellar launches of new products such as the Playbook, disappointing earnings guidance, and plans to cut its global workforce.

The company is still profitable - it earned $695 million on revenue of $4.9 billion in its last quarter - yet some have begun to speculate on whether the Canadian government should step in to "save" RIM from the fate that befell Nortel Networks Corp., the last great Canadian technology company which filed for bankruptcy two years ago.

Given that RIM remains profitable, it seems premature to suggest that the government can or should do much of anything to assist it. The company faces mounting criticism over its product lines and its failure to address the competitive threats from Apple Inc. and Google Inc., business issues that lie beyond the expertise or mandate of government policy makers.

While RIM's current problems can't be solved by government policy, some of its shortcomings may be a product of Canadian policy. Indeed, RIM is the quintessential Canadian technology company, reflecting the market's strengths and weaknesses.

Telecom Giants Lure Ex-Cabinet Ministers to their Boardrooms

Telecom policies, particularly Internet and wireless issues, have generated enormous public interest over the past year. Politicians have evidently taken note with all political parties expressing concern over Internet data caps, net neutrality, and the competitiveness of Canadian wireless services.

The political shift toward consumer-focused telecom concerns has unsurprisingly attracted the attention of the large incumbent telecom providers such as Bell and Telus, who have found their regulatory plans stymied by political intervention and the admission by some Canadian Radio-television and Telecommunications Commission commissioners that the current policy environment has failed to foster sufficient competition.

The incumbent telecom providers recently served notice that they are gearing up to fight back, with Bell adding former Industry Minister Jim Prentice to its board of directors and Telus doing the same with former Public Safety Minister and Treasury Board President Stockwell Day. The addition of two prominent, recently departed Conservative cabinet ministers makes it clear that Bell and Telus recognize the increasing politicization of telecom policy.

Dot-ca Domain Dispute Rules Changes Coming This Month

Domain name disputes emerged as one of the first Internet legal issues in the mid-1990s as speculators recognized the value of domain names and the potential to resell them to the highest bidder. The growth of "cybersquatting" led to several unsuccessful attempts to establish a dispute resolution system. Finally, in 1999, the Internet Corporation for Assigned Names and Numbers (ICANN), the agency responsible for administering the domain name system, created the Uniform Domain Name Dispute Resolution Policy (UDRP), which has since resolved tens of thousands of disputed domains.

The Canadian Internet Registration Authority (CIRA), which manages the dot-ca domain, adopted its own dispute resolution policy, the CIRA Domain Name Dispute Resolution Policy (CDRP) in 2002. Using the UDRP as a model, CIRA developed a Canadian version that borrows much of its structure and content from the international approach, yet reflects Canadian law and policy.  

Ontario Court Grapples With Legalities of Anonymous Online Postings

The Internet has given rise to thousands of online chat forums, where participants can sound off on the issues of the day often shielded by the cloak of anonymity. Anonymous speech can be empowering - whistleblowers depend upon it to safeguard their identity and political participants in some countries face severe repercussions if they speak out publicly - but it also carries the danger of posts that cross the line into defamation without appropriate accountability.

Striking the balance between protecting anonymous free speech on the one hand and applying defamation laws on the other sits at the heart of a new Ontario Superior Court decision released last week. The case involved postings about Phyllis Morris, the former mayor of Aurora.

In 2010, the website featured an online chat forum where participants discussed a local election campaign. Morris, who was defeated in the election, launched a legal action during the campaign against the site, the chat forum moderators, its lawyers, and website host to order them to disclose the identity of three anonymous posters.  Morris did not identify the specific defamatory words, but claimed that six posts were defamatory.

Canadian Universities Switch to Tech Savvy Alternatives

Canadian university and college campuses are quiet at this time of year, but in recent weeks many have been making noise by transforming the way professors and students access and license course materials. For years, schools paid an annual per student fee to Access Copyright, a copyright collective that licenses photocopying and the creation of print coursepacks. Starting in September, many of Canada’s top universities will no longer use the Access Copyright licence, opting instead for a more flexible, tech savvy alternative.

The shift away from Access Copyright marks the culmination of years of technological change within Canadian education that has resulted in new ways for professors to disseminate research and educational materials as well as greater reliance by students on the Internet, electronic materials, and portable computers.

Ten years ago, photocopy licences made sense since physical copies were the primary mechanism to distribute materials. The availability of a wide array of materials from alternative sources and mushrooming demands from Access Copyright have combined to force education to consider new approaches.

Competition, Not Congestion Driving Internet Data Cap Debate

The Canadian Radio-television and Telecommunications Commission has struggled for years to deal with an issue that lies at the heart of Internet services in Canada: how can it foster greater competition from independent Internet providers while also addressing telecom and cable company concerns about network congestion.

In 2009, the CRTC believed it found the right solution. It established Internet traffic management guidelines (often referred to as net neutrality rules) that created limits on how Internet providers could throttle or limit download speeds and encouraged providers to use "economic measures" such as data caps to manage demand by making it costlier to consume large amounts of data.

While the net neutrality rules applied to all Internet providers, the CRTC was particularly concerned that the dominant incumbent providers would apply their throttling practices at the wholesale level, making it more difficult for independent ISPs, who rely on the incumbents to connect to residential customers, to differentiate their services. If independent ISPs were forced to provide throttled services, their competitive position would be undermined.


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