Bill C-32: The Latest Attempt to Amend the Copyright Act

Posted on June 5, 2010 by Jeremy Costin

There’s a new copyright bill that was tabled yesterday in Parliament.  It’s been in the papers, online news sources, etc.  It can be found at http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=4580265&Language=e&Mode=1

Velvet Underground Goes Digital (c) 2010 Jeremy Costin

Velvet Underground Goes Digital

Activities that are commonplace and have been legal in the U.S. for about 3 decades (longer if you consider the age of the code upon which they’re based, but counting since the fair use exception were clarified in Sony v. Universal, 464 U.S. 417 (1984)) will be permitted.  These include time-shifting (the specific subject matter of Sony and Universal, a.k.a. The Betamax Case) and format-shifting.  Time-shifting is the practice of recording a copyrighted broadcast and watching it later.  One oughtn’t be faulted for assuming it to have been legal considering that the cable and satellite companies sell PVR-equipped tuners.  Format-shifting is the practice of converting a copyrighted work from one format, such as CD, to another, such as mp3, for the purpose of consuming something you’ve legally purchased on another equivalent device (as in they are both playback devices and fulfill the same purpose).  Again, one could have assumed this to be legal considering recent Canadian decisions (BMG Canada v. John Doe, 2005 FCA 193) that stated that the copyright levies on blank media were designed to compensate copyright holders for private copying, and the private copying exemption that existed already in the Copyright Act’s s.80.  That said, format-shifting was still somehow considered illegal.  These common acts will all be legal if Bill C-32 passes.

Here’s the thorn:

It will be illegal to circumvent digital locks placed by content distributors on content to which one has legal access in order to do those things that will become one’s statutory rights.  Never forget that we have moved away from the copyright-as-censorship model and toward the model that regards copyright as a limited monopoly (for the purpose of a productive incentive) on what properly belongs in the public domain. Continue reading →

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Interpreting the NHL and the disallowed Sedin goal

Posted on April 20, 2010 by Jeremy Costin

Last night’s playoff game had a disallowed goal based on it having gone off a skate. In my arguing over this on Facebook, I decided to put my legal brain to the task, since it’s not completely out of steam after this morning’s work.

Here is my interpretation of the rules:

NHL rules can be found here: http://www.nhl.com/ice/page.htm?id=26489

Rule 78.4:
If an attacking player has the puck deflect into the net, off his skate or body, in any manner, the goal shall be allowed. The player who deflected the puck shall be credited with the goal.

This is subject to 78.5 (ii) below:

Rule 78.5 (ii):
[Goal is disallowed] When the puck has been kicked using a distinct kicking motion.

Therefore off the skate is okay unless there is a “distinct kicking motion.”  Turning the skate is a motion distinct from merely stopping, but it is not a kicking motion.  And if one claims that the momentum of Daniel’s skate was such that it resembled a kicking motion, there was nothing within it to distinguish the kicking component from the stopping component as a kicking motion.  It has to be a kick, distinct from other movement.

There are two components: the change in position of the skate (distinct motion), and that the change in position is a kicking motion, not merely a change in angle, as deflections (and movements to improve deflection) are permitted.

Defence rests.

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The Speciation of Web Sites

Posted on March 27, 2010 by Jeremy Costin

I saw a headline the other day in someone else’s newspaper:  Days of Static Website Over.  Not that I was on the bus and read the headline from several yards away and didn’t read the article at all.

My first thought was, you’re a few years late there, Mr. Reporter!

My second thought was, this bus is making me sick.

My third thought was, no they’re not!  (the days of static websites, I mean.  The bus was in fact making me ill.)

Evolution doesn’t abandon the root when new scions sprout.  Just because a new mutation is successful doesn’t mean its progenitor disappears, even if the new mutation is better in all or most functional ways.  For you creationists who don’t get science, that’s why chimps are still here.

The chimps of today are not like the chimps of three million years ago, however.  Though today’s poo-flingers are not separate species from their prehistoric ancestors in the way that humans are separate species from the chimps, they have evolved.

Enough with hairy banana-munchers.  Next analogy:

Television didn’t kill the billboard, but it did influence it.  For the fixed billboard to compete with the moving picture of TV, it had to adapt.  The billboard had to find ways within the constraints of its technology to compete with video.  In recent years, billboards have merged somewhat with video technology, but I’m not talking about that for the moment.

I’m talking about changes in artistic design that allowed fixed image billboards to take better advantage of their physical placement than they had before, and thus compete with television for advertising dollars.

The static website is not dead.  Like the billboard and the chimpanzee, it evolves within its technological constraints to compete with its evolutionary descendants. Continue reading →

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Library Manifesto

Posted on January 8, 2010 by Jeremy Costin

A friend of mine is a librarian, specifically a law librarian.  She posted a link on Facebook to an article about appreciating librarians.  It spawned a pro-librarian rant from me that I thought I would blog about ( and include with maybe an edit or two).

The problem we face is that our knowledge and culture are being digitized, which while it exponentially improves accessibility to that cultural knowledge, also jeopardizes it.

Bookshelf (c) 2009 Jeremy Robert CostinThere is the simple physical risk faced by the media on which these artifacts are being stored, those media becoming less and less permanent by the year.  While books and canvas were imperfect, being vulnerable to the elements and accidental edits on reproduction (and not so accidental ones), they seem to have lasted decades and centuries.  The printing press (theoretically) improved the accuracy of reproduction, and reduced the risk of loss.  Works are fixed to digital media by means less permanent than the chemistry of inks and paints.  Though factory-pressed optical media are probably the most resilient fixations since stone tablets (the laser etches an aluminum disc which is sealed into polycarbonate), homemade writeable optical media use dyes that, while more resilient than magnetic media, are rarely of a near-permanent grade.  Less permanent than dye-based optical media are magnetic media.  Though some can hold their polarizations for indefinite amounts of time, they are susceptible to magnetic fields like speakers, x-ray machines, and power transformer blocks.  And then we have non-permanent ethereal storage – the emergence of the cloud, or community-based distributed network storage, the integrity of which is only theoretical and based on statistical predictions.  In the end, we still need books as a mostly permanent record.

There is a more insidious risk though.  Continue reading →

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Technology (law) is everywhere!

Posted on December 28, 2009 by Jeremy Costin

In “Business @ the Speed of Thought,” (Chapters-Indigo Link), which I mentioned some time ago (Information is the Good, the Currency, and the Era) and which Bill Gates wrote a decade ago, the examples given are pointedly not information technology businesses.

Of course, Gates is talking about information systems and the logistics of information management; but Gates is a pretty big picture guy, and there’s a reason he chooses GM over Xerox, and McDonald’s over Electronic Arts. Information technology is a tool in information logistics and information management. Gates is not yet explicit in this distinction, though he may be later. (I haven’t finished the book yet – I had something really big come up. More about that later.)

The Hobbyist (c) 2009 Jeremy Robert CostinBut the importance of recognizing information logistics as what programmers would call an abstraction, and information technology as one of several interdependent means of implementation is implicit in the work. This is similar stuff to what I developed, through my consulting business (Costin Media), into Information Dynamics Intelligence™ (IDI).

I’m not going to plug Costin Media and IDI too much though, as the business is necessarily on hiatus at the moment. A month ago, I began articling at a small general practice law firm. This means lots of things, paramount among them: 1) In 11 months, I will be a lawyer; and 2) I can’t have a job outside of my articles as per Law Society rules, so I’m not pursuing any consulting work.

At the firm where I’m working, I deal a lot with wills & estates, family law, and small business.  “But wait!” you say. “Where’s the intellectual property and information technology?”

And I answer, “Everywhere.”

Continue reading →

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How to save a drowning business

Posted on August 31, 2009 by Jeremy Costin

This post, short as it is, has been in development for a while.  I’ve been concerned that it will appear merely populist, almost socialist, in its call against needless “downsizing.”  It isn’t socialist.  It’s about the creative enterprise that business can be.  I want this to be understood by a generation of executives who’ve lost sight of the organism of business.

We are in a terrible time, economically speaking.  This is not news.  But there is a sharp division between broken markets and the actual economic and productive engine of society.  There are indicators that productivity need not be as harmed as the equity markets have been.  This is because of different motivations.  Shareholders, typically, want to make money.  Some also want to have their hands in the pies of growing industry, but even so, money is a key motivator.  There are two ways of making money from corporate equity:  one is from equity growth – the growth in the value of a corporation; the other is from dividends – a shareholder’s proportion of the company’s profits.

Executives are responsible to the shareholders.  But there are two ways in which they can address shareholder demands:  one is equitable growth, which happens when a company builds and grows.  The other is from profit, which happens two ways:  either from growth in revenue that outstrips growth in expenses, or from cuts to expenses that exceed the drop in revenue.  The first is positive, and the second is negative.  More importantly, profit will usually follow a constructive plan, while equitable growth will never (unless there is a profitable acquisition) follow massive downsizing that is done merely to create profit bubbles and golden parachutes.

(What do I mean by a profit bubble?  Decrease client satisfaction at great savings to expenses, and exploit the lag before the revenues drop from clients pulling out.)

Now on to my cherished month-old metaphor: Continue reading →

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Information is the Good, the Currency, and the Era

Posted on July 10, 2009 by Jeremy Costin

I’m reading “Business @ the Speed of Thought,” by Bill Gates.  (Chapters-Indigo Link Here)  He wrote it ten years ago, which allows me the critical distance I prefer when reading a book that prognosticates.

Kelowna Wires (c) 2009 Jeremy CostinSay what you will about MS Windows, Mr. Gates knows business.  So I figured his views on business in the post-industrial age would be at least interesting if not wholly prescient or doctrinal.

Actually, I would suggest that we are now post-post-industrial.  I’m going to digress for a bit.  I’m not sure I will come back.  You’re probably not all that surprised.  During the industrial age, money was used to trade industrial output.  For a brief period, beginning with the expansion and deregulation of derivative markets and ending with the financial swan-dive-with-a-jet-pack-and-a-small-nuclear-device this past autumn, money was used to trade mathematical shadows of money.  Money became more than an instrument of trade, but the seed of massive abstracts that themselves became a primary good of the world economy.  What is interesting about that short era is that during the industrial age, as currency was used to evaluate and trade industrial output, it was still indexed to gold as that currency; during the money economy, the gold standard was removed.  During the industrial age, money was seen as abstract, and thus it required a tie to tangible gold.  Once money was no longer seen as an abstraction, the ties to gold seemed superfluous dead weight being dragged behind an explosive global economy.  With the ties severed, we had two forms of money defining the economy: currency and its derivatives.  Which of them was the post-industrial good and which was the post-gold standard?  Derivatives are not money; they are data and theories and probabilities about money.  But they were being bought and sold.  It would seem they were the good.  The deregulation of derivative markets, however, allowed them to be used as the currency for those trades.  It would seem that they were currency then, which as we’ve seen is an abstraction of a standard, which would in turn indicate that the standard was money itself, which is not a standard, but a metric indicating value.  Both derivatives and money are, themselves, information.  The markets have deflated, swallowing (by some measures) decades of economic growth.  But the existence of those derivative markets was symptomatic of the development of a new economic era wherein information underpins the economy. Continue reading →

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Opening the Scope of Employee Contribution

Posted on July 2, 2009 by Jeremy Costin

Warehouse Rocket Scientist (c) 2009 Jeremy CostinWow.  Two months.  Sorry about that.  Things have been changing and I’ll be launching a new business shortly.

One of the major things I’m doing with this new business has to do with the way management recognizes and utilizes talent within an organization.

Some years ago, I took a summer job in a warehouse.  On the company totem pole, I was the pile of twigs gathered around the bottom – I was a seasonal picker.  It was my stated goal to aim for average performance numbers.  Not only was I not expected to excel, as seasonal help I wasn’t even asked to try.  It was my job to achieve mediocrity pulling widgets out of bins on shelves, and count them out in base-dozen (i.e., 3.11 in this notation meant three dozen and eleven), never having to count above the number twelve.  What if there were more than a gross of a given widget in an order, you ask?  Those were in cases, and the full cases were dealt with by those in higher positions.  Literally.  They used a forklift and other warehouse racing vehicles.

I counted these widgets in batches up to twelve at a time, and put them – neatly (packing them neatly was a requirement of the job) – in boxes.  Not rocket science.  Years earlier, I had an assignment in my computer engineering class to write a short program in FORTRAN 77 that would calculate the amount of rocket fuel required for a given payload, taking into consideration the calculus of the fuel being payload as well.  I don’t know if that quite qualified as rocket science, but I found it harder than counting out widgets in bundles of twelve.  We also played with lasers that year in a physics lab, and I kept seeing green dots for days afterward.  I won’t even get into why you shouldn’t down a large bag of chocolate-covered espresso beans before trying to program in Pascal.  But I digress. Continue reading →

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On Virtual Travel

Posted on April 28, 2009 by Jeremy Costin

Why would a denizen of a virtual world want to cross over into another virtual world, especially if she couldn’t bring her special powers, skills, or goods into that other world?  This was the question asked in a comment the other day:  http://weblawg.costinmedia.com/wp/legal-explorations/laws-for-the-virtual-universe/comment-page-1/#comment-3604

Playing The WestThere are many examples of the attachment a player feels for his character in a role playing game, and there are also analogies in meatspace that are helpful.  There are two questions being asked above.  One is, why would a player want a character to cross between worlds?  Implicit within this is the question of whether the player wishes bi-directional movement between worlds.  The second question is, which of the character’s unique details in one world is the player willing to forego for the privilege of crossing over?

I’m using the word “player” to refer both to game players and users of non-game virtual worlds, by the way.  Players feel a connection to the characters they create, and this connection is related to the investment they put into the persona development of that character.  I’ll start by looking at character development in games not mediated by computers.  Let’s compare Monopoly and Dungeons & Dragons.  In Monopoly, if the game unexpectedly ends, the greatest loss you’re likely to feel is related to how much time, work, and luck went into acquiring your virtual property.  You didn’t create a unique character; you didn’t develop a persona for the wheelbarrow different from other wheelbarrow personae created by other players who’ve represented themselves by that playing piece. Continue reading →

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Who carries your Web 2.0 banner?

Posted on April 15, 2009 by Jeremy Costin

What’s at stake when you let others step in your online footprint?

I wrote here about the possibility of something resembling agency through social networking / Web 2.0 / user-created content a short time ago.  I am now in the fortunate position to be examining this issue first hand, as I’ve been asked to provide content for the Tazzu blog.  My first piece there is going up simultaneously with this piece.  On the Tazzu blog, I suggest that you monitor how others perceive your relationship with those whom you authorize to use your name, your goodwill, your reputation, your platform, etc.  Here, I would like to get into a little more detail answering a specific question:

What is the difference between goodwill risks and liability risks with Web 2.0?

First some definitions:

From the Canadian Oxford Dictionary (1998):

Goodwill:  2.  The established reputation of a business etc. as enhancing its value.
Liability:  2.  A person or thing that causes one problems or puts something at risk.

From Black’s Law Dictionary (8th Ed., 1999):

Goodwill:  A business’s reputation, patronage, and other intangible assets that are considered when appraising the business, esp. For purchase; the ability to earn income in excess of the income that would be expected from the business viewed as a mere collection of assets.  Because an established business’s trademark or servicemark is a symbol of goodwill, trademark infringement is a form of theft of goodwill.  By the same token, when a trademark is assigned, the goodwill that it carries is also assigned.
Liability:  1.  The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.
Vicarious liability:  Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

From this, we can see that goodwill has to do with the perception of your enterprise, and liability has to do with getting into real legal trouble.  How are they connected by this Web 2.0 stuff?  Well, let’s look at that vicarious liability thing.  It refers to being liable for what someone does in your name, and requires two parts. Continue reading →

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