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Technology law column by Michael Geist

Conrad Black Case Targets Net Defamation Jurisdiction Standards

Conrad Black's ongoing legal fight in the United States has attracted considerable attention in Canada, yet there is a side courtroom battle at home over alleged defamatory content on the Internet that merits closer attention.  The case, named Black v. Breeden, involves postings such as press releases and reports on the Hollinger International, Inc. website that Black claims were defamatory.  Several Ontario media organizations published the allegations contained in those releases.

When Black sued the company's directors, advisers, and one company employee for defamation, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that Ontario was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.  After a judge dismissed the motion, the defendants appealed to the Ontario Court of Appeal.

In a unanimous decision this month, the appellate court upheld the ruling by the motions judge, concluding that Ontario was a suitable venue and that the defamation case could proceed.

U.S. Move to Pick Digital Locks Leaves Canadians Locked Out

Since its introduction two months ago, the government's copyright reform package has generated widespread debate over whether it strikes the right balance.  The digital lock provisions have been the most contentious aspect of the bill, with critics fearing that anytime a digital lock is used, it would trump virtually all other rights.

Supporters of the C-32 digital lock approach have sought to counter the criticism by arguing that the Canadian provisions simply mirror those found in other countries such as the United States.  Yet last week, the U.S. introduced changes to its digital lock rules that leave Canada with one of the most restrictive approaches in the world.

The U.S. rules are found in the Digital Millennium Copyright Act (DMCA), which features a triennial review process that allows the U.S. Copyright Office and Librarian of Congress to mitigate the danger the law poses to legitimate, non-infringing uses of copyrighted materials by identifying new exceptions.

The latest review concluded last week with the introduction of new exceptions that target popular consumer products such as DVDs, smartphones, and e-books.  The exceptions - which make it legal to circumvent the locks - are narrow in scope, but they provide U.S. consumers with far more rights than those found in Bill C-32.

Digital TV Transition Could Lead to New Digital Divide

In just over one year, Canada is scheduled to complete the digital television transition, as stations switch from analog to digital broadcasts. While cable and satellite subscribers will not notice the change, over one million Canadians that rely on over-the-air signals will be affected.  Despite the experience in other countries that left consumers without digital converter boxes staring at blank screens, the Canadian government seems content to leave the switch to the private sector, implausibly claiming "industry-led solutions will ensure a smooth transition for consumers."

The basic notion of the transition is fairly straightforward.  For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals.
Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.  

On August 31, 2011, Canadian broadcasters will switch from analog to digital broadcasts. The shift to digital brings several advantages including better image and sound quality as well as more efficient use of spectrum that will open the door to new telecom services.  It also requires those relying on over-the-air signals to obtain a digital converter box to convert the digital signal back to analog.

Why Parma Ham Stands in the Way of Two Major Trade Agreements

Canada is currently negotiating two major international trade agreements whose success may ultimately depend on the level of protection provided to Parma ham.  While it may seem hard to believe, the Canada - European Union Comprehensive Economic and Trade Agreement (CETA) and the Anti-Counterfeiting Trade Agreement (ACTA) are both facing increasing opposition based on European demands to expand protection for "geographical indications."

Geographical indications (GI) are signs used on goods - frequently food, wine, or spirits - that have a specific geographical origin and are said to possess qualities, reputation or characteristics that are essentially attributable to that place of origin.  Given the quality associated with the product, proponents of GI protection argue that it is needed to avoid consumer confusion as well as to protect legitimate producers.

Federal Court Rules Internet Providers Not Broadcasters

Last year, the Canadian Radio-television and Telecommunications Commission released its new media decision, which addressed the prospect of increased CRTC regulation of Internet activities.

After days of hearings and thousands of pages of submissions, the Commission side-stepped the pressure to “do something,” maintaining a hands-off approach and punting the most contentious issue — the prospect of a new levy on Internet providers to fund Canadian content — to the courts.

‘Geo-blocking’ Websites is a Business Rather than Legal Issue

The Internet was once viewed as a "borderless" world that had little regard for the physical location of users.  That sentiment likely seems outdated today to many Canadian Internet users who have grown accustomed to clicking on links for audio or video services only to be advised that the content, site or service is not available in their area.

"Geo-blocking" has become standard practice among broadcasters, sports leagues, and music services that use technologies to identify the likely location of an Internet user in real-time and block the content in some circumstances.  From World Cup broadcasts to Hulu.com (a popular U.S. video site) to Spotify (a European music service), Canadians often find themselves unable to access content and unsure who is to blame.

While some have misleadingly suggested that outdated laws are the reason behind the blocking, the reality is that geo-blocking is invariably a business issue, not a legal one.  Indeed, geo-blocking occurs worldwide - U.S. residents are similarly unable to use Spotify and are blocked from accessing the CBC’s streaming coverage of the World Cup.

Developing world opposition mounts to anti-counterfeiting agreement

Just as the G8-G20 meetings conclude in Muskoka and Toronto, another round of negotiations on the controversial Anti-Counterfeiting Trade Agreement resumes in Switzerland. In the aftermath of the last round of discussions in New Zealand, a draft version of the ACTA text was publicly released, temporarily quieting criticism about the lack of transparency associated with an agreement that currently touches on all forms of intellectual property, including patents, trademark, and copyright.

While the transparency concerns are no longer in the spotlight, mounting opposition to the agreement from the developing world, particularly powerhouse economies such as India, China, and Brazil, is attracting considerable attention.  The public opposition from those countries - India has threatened to establish a coalition of countries against the treaty - dramatically raise the political stakes and place Canada between a proverbial rock and hard place, given its close ties to the U.S. and ambition to increase economic ties with India and China.

India and China formally raised their complaints earlier this month at the World Trade Organization, where they identified five concerns with the agreement.  

First, they fear ACTA conflicts with international trade law and would create legal uncertainty.

Unlocked iPhones Could Herald True Mobility

Apple begins selling the latest version of its iPhone this week in the United States and while the device will not be sold in Canada until mid-July, Canadians will be among the few that will have the opportunity to purchase it "unlocked" so that it is not tied to any specific wireless carrier.  The unlocked versions will come at a premium price, but in return consumers will be able to avoid the long-term contracts that have typified the Canadian wireless marketplace for many years.

The issue of locked cellphones has long been a source of consumer fear and frustration since some wondered whether unlocking phones that were rendered unusable when switching wireless providers was legal. In certain respects, this was an odd question to even have to ask. No one would ever question whether consumers have the right to tinker with their car or to use the same television if they switch providers from cable to satellite, yet the wireless industry somehow convinced the public that unlocking their phones - consumers' own property - was wrong.

Opening Up Canada's Digital Economy Strategy

The federal government’s national consultation on a digital economy strategy is now past the half-way mark having generated a somewhat tepid response so far.  The consultation document itself may bear some of the blame for lack of buzz since the government asks many of the right questions, but lacks a clear vision of the principles that would define a Canadian digital strategy.

One missed opportunity was to shine the spotlight on the principle of "openness" as a guiding principle. In recent years, an open approach has found increasing favour for a broad range of technology policy issues and has been incorporated into many strategy documents. For example, New Zealand identified "openness is a central principle of [its] Digital Strategy 2.0."

The consultation document includes a brief reference to open access for government-funded research, but it seemingly ignores the broader potential for a strategy with openness policies as a key foundational principle.  

Where might an openness principle make sense?

B.C. Court Clicks in Internet Advertising Keyword Case

Google has grown to become the world’s leading Internet company based largely on accurate search results, yet its financial success owes much to tiny advertisements that are posted as sponsored links alongside the "organic" search results.  The determination of which sponsored links appear on a Google search result page comes in part from a keyword advertising system in which marketers bid on specific words.  Whenever a user clicks on the sponsored link, the marketer pays Google the bid amount.  Each click may only cost a few pennies, but with millions of clicks every day, the keyword advertising business is a multi-billion dollar business for Google and has been emulated by competitors such as Yahoo and Microsoft.

Keyword advertising has been a huge commercial success fueling many ad-supported websites, but it has not been without legal controversy.  The practice has generated a steady stream of cases addressing whether the use of a competitor's keyword raise potential trademark or misleading advertising issues.  For example, is Coca-Cola permitted to bid on the Pepsi keyword so that when an Internet user searches for Pepsi they are presented with a sponsored link for Coke?

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