A “Massive” Disappointment

I’ve mentioned before (Joomla Demo Camp) that to call oneself an expert or specialist or otherwise claim to consult to a particular industry, one must keep up to date with that industry itself, not only the law, or accountancy, or whatever other profession is one’s link to that industry. In my case, that industry is Information Technology. Keeping up to date with developments in intellectual property and privacy law, et cetera, is not sufficient.

Example: I know a bit about privacy law. There are statutes, such as PIPEDA; there are concerns, such as unmitigated constitutionally guaranteed free enterprise in the United States; and there are workarounds, such as Safe Harbor. A few weeks ago (a week before the Massive Tech Show in Vancouver), I was invited to the pre-launch party for a local company with global ambitions called “Goodboog“. Knowing something about IT allowed me to ask questions at the party about the location of Goodboog’s servers, in order to address potential privacy concerns of their clients. (They are located in Canada, so their customers can rest a little bit on the security of their personal and corporate data.)

See what I’m getting at? Knowing privacy law wasn’t enough. I had to know about servers, virtual hosting, and a bunch of other techno mumbo-jumbo. I don’t know enough to run my own Goodboog-like company, but my techie knowledge is not so feeble either that my eyes glaze over when an IT company discusses what makes it tick. More importantly, I keep my techie knowledge up-to-date so that I know which questions need to be asked. In other words, when the party was over, Michael-James Pennie (Goodboog’s head honcho) and I had a meaningful conversation about the great directions his company is taking.

Fast-forward one week. I went to Massive, billed as Vancouver’s premium exhibition for the IT industry. I hadn’t gone to anything like it since the days of Comdex, and I was optimistic. Comdex had once been a great show, an opportunity not only to pick up demo-CD-ROMs of new software, but to see what trends are emergent in the industry. Everyone used to want to tell you about what they do and what’s going on in IT. They used to volunteer information, and fairly often, it was useful, even educational. Eventually, Comdex collapsed, and Massive arose from its ashes.

I had been away for a long time, mainly due to being in school studying literature and then law. I got back into the tech community through Tazzu, Vancouver’s top online forum for technology and technology business (and much more). Well, the place to stay up to date with the industry is Tazzu, not Massive. Here are some [edited] excerpts from a discussion on Tazzu about Massive (I was not surprised to find that my disappointment was shared):

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Microsoft’s Ironic Poker Game: But are they bluffing this time?

Back in February, Network World ran a story that Linus Torvalds, inventor of the Linux operating system and guru of the Linux kernel, believes that Microsoft is bluffing in its threat to sue for patent infringement. NW quotes Torvals as saying, “They have been sued for patents by other people, but I don’t think they’ve — not that I’ve gone through any huge amount of law cases — but I don’t think they’ve generally used patents as a weapon.”

Linus hasn’t investigated the link between Microsoft and Patent in court. We all know that Microsoft gets sued for various forms of infringement or questionable business practices about as often as a would-be-model/ survivor/ singer/ dancer/ geek/ bachelor/ b-list-celebrity gets kicked off the island. But do they ever sue? They certainly have a nasty reputation - one perhaps even worse than those of Sony, the RIAA, and SOCAN. But is it deserved?

Although Linus has, generally, far more wealth, celebrity, and tech-savviness than I do, I have access to Lexis and Quicklaw (with international content). It’s one of the perks of being a trainer for LexisNexis Canada. So I spent an evening on Quicklaw and on Lexis, looking for cases dealing with patent infringement where Microsoft was the plaintiff.

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Weblawg.net back and better than ever

First of all, I’m back. Sorry… Between being sick and then having a death in the family and then being sick again, it’s been all I can do just to get to my 9-5 as often as possible, let alone find the time to research and write for the weblawg.

I intend to return to my twice-per-week posting schedule, and I intend to get pictures up with the posts as often as possible, if for no other reason than just to be eye-candy. Click on a pic to see it full-size!

I have been marketing the heck out of weblawg.net and traffic has gone up accordingly. I’m making sure I get a lot of posts written so I don’t lose that great momentum! I have been graciously listed by Steve Matthews of Stem Legal on his Canadian Law Blogs list, and also listed on blawg.

If you see something that interests you, please don’t hesitate to comment, or to Digg. If you like weblawg.net on the whole, then please Digg away, blogroll it on your own blog (and let me know so I can return the favour by emailing me at jeremy at this domain (without the www)), add it to your Technorati favourites (link on the top right), etc.

You may also have noticed that I now have some ads running. I’m trying to keep them as unobtrusive as possible, and also as relevant as possible so you might actually find them interesting. Hosting costs have to be paid…

Finally, I have enhanced the name of weblawg.net, thanks to some advice to Steve Matthews. As you can see in the title bar at the top of your screen, it is now called “weblawg.net: Information Society through the Prism of Law”. The tagline is now “Costin on IP, IT, Media, and Business Law.” This is reflected in the masthead too.

Let me know what you think, preferably by commenting!

Delays in posting

Sorry about the delays.  Have a bunch in the works, but was sick and now had a family emergency.  Back soon.

Hulu and the NHL, follow-up

In response to a comment received putting succinctly Mr. Bettman’s effect on the NHL, I would like to present two screen captures comparing the customer relations aspects of licensing issue manifestations.

We have the new South Park Studios web site, which is trying to make all episodes available for free through the Internet. It is an official site. It acknowledges some licensing glitches with cable companies in other jurisdictions, and indicates that it is attempting to solve them:

And then we have the Hulu website, which makes no such indication. While the individual series rebroadcast have their own producers and intentions, the NHL is more than a TV series: it is an entire sports league. One could say it includes 30 series. And its message to those whose locales are verboten:

The difference is the intent to please the consumer, a.k.a. the revenue source, likely believable from South Park, since the South Park episodes are available at Canada’s The Comedy Network website and therefore a license is plausibly negotiable, and likely being dragged through the mud for the NHL considering its less than stellar licensing and negotiation record, from the consumers’ perspective.

NHL and Mr. Bettman, wake up and smell the $CDN. Canada’s 6 teams’ fans are the source of your revenue and will continue to be even when the markets south of the snow line have melted away. Maybe that’s the problem… The NHL knows we’ll keep forking over pay-per-view and merchandising shekels, no matter how little convenience they offer us. A shrewd business model,but I ask again, is it sound in the long run? Will Canadians demand that NHL lawyers pay attention and try to negotiate in their favour?

Hulu and the NHL

Michael Geist pointed out that the NHL webcast on Hulu.com is blocked to Canadians. It was pointed out in the comments that it seems blocked to other non-Americans as well. I added my $0.02 (i.e. this is my comment on his blog, reproduced here):

Why should the NHL be more special than anything else with respect to licensing? We have seen regional blocking here with cable, for example, although I receive all Sportsnet channels, I cannot watch hockey on any but the one in my region.

We have seen extensive licensing schemas set up in professional sports for a long time. We have also seen Gary Bettman transform our national sport into an American short-term profit ability business venture. This shouldn’t be surprising from the standpoint of a Canadian hockey fan.

What I wonder about is how this IP-authentication for the purpose of regionalization squares with other technological protection measures and the various caselaw around the world. In other words, we are seeing something here akin to the old cable rebroadcasting over the Internet that was heard in court some time ago. New media rebroadcastability doesn’t trump valid licensing. But when is that licensing valid and when does it overstep? Is there possibly an argument here that this TPM (Regional IP authentication) is possibly analogous to Sony’s Playstation 2 scheme? (Sony v Stephens, HCA, Australia)

What would happen, legally, to someone who does like the Stephens chip and bypasses the regional authentication?

Is there a non-infringing purpose, as there was in Stephens?

What exactly is the restriction in the license, and how does one go about becoming part of the privileged class of viewers who can use Hulu? Do they have to be American, non-Canadian, or some other class, and are those legitimate licensed user classes?

Once that’s determined, if someone can find a way to include themselves in the class and still not have access, can they legally use a proxy or other workaround, and fall into Stephens reasoning? Although an Australian case, its logic certainly would fit within the interoperability exception for TPM circumvention in the DMCA.

Joomla! Demo Camp Notes

Just thought I would cross-post them. They are at Tazzu as well.

For those who don’t remember, I was at the Vancouver Joomla! Demo Camp last month, and posted directly from there.

My notes are in point form. Click below to read them.

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Why the RIAA should be subject to Judicial Review

Nate Anderson of Ars Technica published a piece on March 11 entitled, “RIAA tells Ars: We’re not hypocrites“. Essentially it boils down to this: The RIAA’s collective spin-off — in some ways similar to SOCAN here — is called SoundExchange, and it has a licensing scheme that can be a little bit dizzying, mainly because it has different upstream and downstream licensing models. What I mean, which Nate Anderson conveys quite clearly, in fact, is that they make sure that they collect more money than they pay out. They have a “whichever is greater” model for revenue, and a “fluctuating with the market” model for paying out royalties.

The RIAA is answerable, according to the author, to the Copyright Royalty Board (CRB). Here, our collective bodies, SOCAN and the CPCC, are answerable to the Copyright Board. But there is no mention in the article of the CRB being in turn subject to judicial review. Here in Canada, the Courts do not seem to have any qualms about hearing qualms about the Copyright Board, or its subject collective bodies.

Part VIII of the Copyright Act (R.S.C. 1985, C-42), which includes ss. 79-88, deals with private copying. Why? Because in Canada we recognize that it’s going to happen and we can’t stop it, so we might as well formulate a way to return some coin to the artists. It is flawed, no doubt, but it does have its heart in the right place which means it can be improved. What does this have to do with royalties? It is a scheme that is answerable to the Courts, and has been tested there.

Rather than go into SOCAN v. CAIP and all the subsequent cases dealing with levies and tariffs and their collection, I will quote from a recent case in which the Federal Court of Appeal, by the pen of Sharlow J.A., told the Copyright Board what its place is and put it there:

Apple Canada Inc. v. Canadian Private Copying Collective, 2008 FCA 9 @ para. 3:

The applicants, supported by the intervener, have submitted a number of different legal arguments in support of their challenge to the decision of the Copyright Board, but in my view it is necessary to consider only the principle established in Canadian Private Copying Collective v. Canadian Storage Media Alliance (C.A.), [2005] 2 F.C.R. 654, which is dispositive. I read that case as authority for the proposition that the Copyright Board has no legal authority to certify a tariff on digital audio recorders or on the memory permanently embedded in digital audio recorders. That proposition is binding on the Copyright Board: Canada v. Hollinger Inc. (C.A.), [2000] 1 F.C. 227, at paragraph 30.

The RIAA is being hypocritical, but that’s nothing new, nor is it unique among such industry collectives, associations, and societies. What seems to be missing are the headlines where the U.S. District and Appeal Courts take the paddle to the heinies of the RIAA and the CRB, and teach them a little humility before the law. Perhaps the most overriding theme of the RIAA’s frivolous lawsuit crusade has been its belief that it is so far above the law so as to be able to wield the law as its own private arsenal of birdshot and cannonballs.

Collective mens rea? Or a lack of musical supply…

Ben Jones of TorrentFreak published an article a couple of weeks ago discussing the 2008 Digital Entertainment Survey in the U.K., in which it was revealed not only that so-called “piracy” is rampant, even among the generally non-criminal element. What’s a little more interesting than this, though only newsworthy because of its having been documented, is a major reason for the pervasiveness of unlicensed downloads, as I would prefer to call it. From the article:

In total, 70% of those who admitted to piracy agreed that “legal sites just don’t have the range of illegal ones” (try looking for Beatles tracks) whilst almost as many said they would pay for downloads, if what they wanted was available. This is probably also one of the main reasons why half of the BitTorrent downloads are TV-shows.

The fact that one third of the UK citizens can be labeled as a pirate is thus a signal that these customers want something that is not available through other channels. It’s more about availability than the fact that it’s free.

Once again we see that the pop-culture industry refuses to address the demands of the consumer, instead relying on extending the reach of the law to criminalize behaviour that is more indicative of a poor market supply of quality product than of a collective mens rea.

The industry should be adapting, recognizing that their content - the product actually being hawked within the glittery packaging - is poor quality. Ah, yes, but that is often what the public wants! One-hit ringtone-du-jour pop. Then give it to them as such. What am I getting at here?

The market has bifurcated.

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What did Fairmont pay for my “protected” view?

I wrote in an earlier series of posts that laws exist as a combination of policy and imperative, operating either to curb antisocial behaviour that can damage the fabric of society or that can alter it.

We have some laws, like building codes, that among other things (like safety), serve to shape the face and feel of a city. I work in a heritage building called the Marine Building. It has a legendary north-facing view from its perch on the northernmost tip of the downtown peninsula of Vancouver.

This building has boasted its view for over three quarters of a century. Now, thanks to reclaimed land and the instant-gratification greed-fuelled condo surge, a luxury tower is shooting towards the sky between the Marine Building and the relatively stout and interesting new Convention Centre.

I don’t ask the title question because of my view.  I ask it because this piece of history - this brick skyscraper that was once a source of pride for Vancouver as the tallest in the then massive British Empire - is being swallowed by the glass and steel amoeba of “progress”.  Progress without history is futurism, and that is a dangerous philosophy upon which to base a society.

I work on the 9th floor of the Marine Building, and have the pleasure of a north-facing window. My view of the mountains and the water is remarkable, and the stuff of history books. Until last week. Rebar and concrete from the Fairmont Pacific Rim condo tower are now directly between my window of the “protected” heritage building in which I work and the North Shore.

The laws have either failed or been bought.