The American constitution guards citizens against unreasonable searches and seizures. This right is interpreted by looking at the individual’s subjective expectation of privacy, as well as objective societal expectations. Schneier’s questions and criticisms are equally valuable to Canadians, as the American test for the fourth amendment is similar to that being used for section 8 of the Canadian Charter of Rights and Freedoms, the right to be secure against unreasonable search and seizure.

The Supreme Court of Canada interpreted this right in the criminal case . Before one can even ask whether the government has violated someone’s privacy, we must determine whether the subject matter of the government’s action was private. This is where the reasonable expectation of privacy test comes in, to draw the line between the private and public sphere. First, the individual must subjectively expect that the subject matter in question is private, and secondly, that belief must be objectively reasonable. In Tessling, the court applied the test to police who had used infrared imaging technology to detect houses with an unusual amount of heat emanating from them. Using this technology, along with other evidence, they were able to establish probable grounds that illegal narcotics were being grown on a specific property. When the property owners stated that this infrared data should be excluded from the evidence as private, the court ultimately concluded that they did not have the reasonable expectation of privacy in their property's thermal information.

Sidestepping the difficult debate about searches and seizures, this case shows how the test is designed to be flexible to changing circumstances. The entire common law system is based on the notion that society changes, both culturally and technologically, and that judges have a role in ensuring that old laws stay relevant to new contexts. To that degree, a reasonable expectation of privacy test serves its role. Schneier criticizes this approach, however, by pointing out that “today's technology make it easier than ever to violate privacy… but it doesn't necessarily follow that we have to violate privacy.” Schneier's criticisms are taken in good faith, but it is difficult to imagine how to define privacy without a technological context. Young people are growing up in the age of online social networking, and for better or for worse their boundaries of privacy are different from the generation before them. It is difficult to imagine a society that will protect information that the same society does not expect to maintain as private.

Schneier identifies a much more problematic aspect of the test in examining how the government itself can erode the expectation of privacy, and change a search from unreasonable to reasonable. True, a government would not be able to override a societal consensus about privacy with an arbitrary or sudden shift in policy. But as the example of illustrates, the ability for the U.S. government to justify the program makes the application of the "expectation" test unclear:

In Katz, the Court ruled that the police could not eavesdrop on a phone call without a warrant: Katz expected his phone conversations to be private and this expectation resulted from a reasonable balance between personal privacy and societal security. Given NSA's large-scale warrantless eavesdropping, and the previous administration's continual insistence that it was necessary to keep America safe from terrorism, is it still reasonable to expect that our phone conversations are private?

Certainly, with the U.S. government boasting their wiretapping program as a tool to fight terrorism, it is not clear that Americans can reasonably continue to expect that their phone conversations are private. Moreover, by invoking the rhetoric of security, it is not even clear that Americans expect that their phone conversations should stay private. It may offer some relief that a poll of Americans indicates that in order to wiretap a phone conversation. But notes that the court’s test “isn't based on anything like polling data; it is more of a normative idea of what level of privacy people should be allowed to expect, given the competing importance of personal privacy on one hand and the government's interest in public safety on the other.”

Schneier's criticism of the current legal scheme is well-founded. It is difficult to determine if the test should shift towards permanent ground or public opinion. But since the test is supposed to protect citizens from unreasonable government searches, it becomes important to find a way to protect the test itself from the government.

The post Lowered expectations of privacy appeared first on IPOsgoode.

At the Osgoode Entertainment and Sports Law Conference in 2009, the IP Osgoode panel on copyright did not descend into anything nearly as divisive. At several points in the discussion, people with different viewpoints not only seemed to respect each other’s interests, but also showed a willingness to help meet each other’s goals.

Brett Gaylor, the filmmaker behind the documentary “”, showed a clip of a woman listening to a song made from 1-2 second samples, chopped up, sped up, and blended together. She summed up the artist’s use of the old song as “turning something that it was into something that it wasn’t.” This phrase lies at the heart of remix culture, which Reuven Ashtar and Marcus Bornfreund described in further detail. , a student working at Borden Ladner Gervais, offered a list of examples of remixes from both music and visual art, while Bornfreund noted that many artists choose to encourage derivatives of their work through the licensing regime.

A self-referential moment came from , a partner at Cassels Brock, who worried that his service to big content producers set up an expectation that he would strongly disagree with the other panelists. But he agreed with the other panellists on a number of issues, including his feeling that there was artistic merit in remix culture (and even if he didn’t, he saw it as a legitimate part of the culture that would continue on regardless of its detractors). The consensus did not stop there. Every single panelist reminded the audience that the process of creating new art from old has existed for centuries (and even longer), and that we are actually re-affirming an old aesthetic with the rise of the remix. Even the issue of Creative Commons attracted very little debate. , a founding project lead of Creative Commons Canada, was the first to caution that there is a still a strong role for “all rights reserved”, just as the other panelists praised the Creative Commons regime for offering a useful alternative. The individual panelists shared a very balanced approach to this new copyright challenge.

Perhaps the most interesting moment came when the panel discussed , a DJ who blends numerous pop songs into a seamless dance party. Gaylor alleged that Girl Talk would be willing to compensate the artists for the songs he uses. But he pointed out that it is too onerous to obtain licenses for such an elaborate sequence of songs, when many record labels insist on a fee of thousands of dollars just to begin the process. This is especially difficult for hiphop tracks that themselves sample numerous other songs, creating a complicated web of rightholders that all need to be contacted. Gaylor then suggested a system similar to compensating an artist for a cover song, where the original artist receives a percentage of proceeds, with a simplified system for obtaining permission. When Ashtar pointed out that a similar system would be much more difficult for a work with dozens of samples and respective right-holders, Chisick expressed optimism that such a scheme was still possible. He noted that many musical works involve dozens of contributors, and everyone still gets paid. In essence, the panel universally agreed that we should try to compensate artists when their works are remixed, but that our current approach forces such remixes into a black market. For anyone paying attention to the copyright debate over the past decade, it’s astonishing that such a diverse panel could agree upon so much.

Of course, the panelists offered few concrete solutions, let alone anything they could agree upon. And even if four panelists could cooperate on some fundamental goals, this is not to say that the rest of the world has caught up. Although Chisick questioned the effectiveness of targeting a particular woman for posting , he did not expect copyright holders to abandon the strategy of criminal sanctions or other penalties for this kind of unauthorized copying, and noted that there are other cases where litigation is necessary. And that’s not to say that creators themselves all love remixes: every panelist noted that the remix culture has not been as well received in Europe and Quebec, where the culture of “droit d'auteur” sees the remix as a threat to the original author’s artistic principles. This is in contrast to North America, where a consensus on remix culture seems more tenable. Rather than a debate about moral principles, North Americans tend to view this as a challenge to find an appropriate balance between commerce and free expression. Although a common understanding may be closer than ten years ago, a solution remains far away.

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The panel included:

• of Borden Ladner Gervais
• of Creative Commons
• of Cassels Brock
• , a Canadian film director from Montreal

All the panelists opened with a presentation, with the most well produced one coming from documentarian Brett Gaylor. In a clip from his film “”, he played an audio clip of an interview between bluesman Muddy Waters and American folk musicologist Alan Lomax from the early 20th century. Waters revealed that many of the songs he performed essentially had no author, because these were spiritual songs that had become common knowledge long ago.

The presentations from Gaylor and Ashtar both referred to one specific song to illustrate how culture can build upon the past. The story of this song may actually be more than a century old, beginning with a spiritual song called “This May Be The Last Time”. This song was a spiritual not unlike other “authorless” songs that Muddy Waters spoke of, and The Staple Singers recorded a version of this classic in 1955. In the 1960s,  American blues music hit a critical mass among British musicians, and the song’s chorus was appropriated by the Rolling Stones in their song “The Last Time”. Andrew Oldham, the manager of The Rolling Stones, turned “The Last Time” into an orchestral version played by London session musicians. Thirty years later, The Verve sampled a few seconds of the orchestra for their hit. This story is a powerful example of how culture builds upon the past, and how an entirely new work can emerge from past work over time. This was a theme that all panelists affirmed, in spite of their different viewpoints.

Of course, the panelists did not find time to mention the biggest irony of this song’s lineage. ABKCO Records, the copyright holder in the Rolling Stones song, sued The Verve for copyright infringement. In the end, the copyright in “Bittersweet Symphony” reverted to ABKCO, with the Verve’s song being credited to the Rolling Stones. Not only did the Verve not make a penny from their hit, neither did the Staple Singers. (Nor any of the previous unnamed authors.) If this does not raise legitimate doubts about whether copyright law ensures a proportional reward to authors based on their creative contributions, then perhaps we have forgotten the original purpose of copyright to begin with.

This example also illustrates the challenge of gaining copyright protection for a derivative work of art. Not only is the cost of licensing the older work a major obstacle, but in many cases, it becomes difficult to track a song’s “true” author, and indeed many songs have multiple authors with varying contributions. By the time a song has evolved over a century, it may be difficult or even impossible to get permission from all the relevant stakeholders. Thus, many remixes remain uncommercialized if only out of sheer inconvenience. The few artists making a living from remixes either have immense cultural cache and bargaining power, or distribute remixes of older works for free (legally or not) in order to attract a following.

It would probably be unfair for a remix artist to enjoy all the profits of their work, with no compensation to the artists they took from. But that many remixes become popular without anyone seeing any profit should illustrate a lost opportunity. A fair economic model for the remix may not require a new copyright regime. It may be enough for large copyright holders to create an accessible but fair licensing scheme that makes it easy to obtain permission to create a remix, and only claims a percentage of profits should a remix become commercially successful.

The post IP Osgoode Panel: Copyright in the Remix Era Part 1 – A History Lesson appeared first on IPOsgoode.

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A sizable portion of the Facebook community took this to mean that users would be completely unable to remove their photos or personal information from Facebook, and thus any content could be kept and used by Facebook indefinitely. The grassroots campaign quickly gained momentum, with a mass of blog posts and Facebook protest groups. In response, Facebook CEO Mark Zuckerberg rolled back the terms of service to the previous version, “”.

However, in Facebook’s defense, the attempt at change was meant to prevent users from ripping apart content that other users have come to depend upon. sums up this question aptly:

Should social networks let you take your photos once you have shared them? At that point, doesn't the community you shared with have rights too?

When the debate is framed in these terms, we realize that this challenge is nothing new. The tension between individual and community rights is as old as humankind, and every system of rules must grapple with this conflict. Entire political philosophies focus on finding an appropriate balance, and human history reflects remarkable adaptation. Which is why Facebook’s next move should come as no surprise: they . In fact, it is easy to draw comparisons between Facebook’s policies and a constitution, or a bill of rights. Zuckerberg referred to these policies as “”, and emphasized that they would delineate user rights and responsibilities.

Naturally, this is great news for users and consumers. As for web-based businesses, they should not focus on the negative publicity from this incident, but realize that their community model can become a competitive advantage. Virtual communities such as Facebook will experience virtual immigration and emigration based on governance. As a general rule, the business that finds the right balance between producing a stable and exciting community while protecting the rights of individual users will be the most successful. This will obviously mean that businesses need to deal with rights of ownership, privacy, and control over information. But it may be interesting to see if other businesses emphasize procedural rights, such as the right to an open and transparent process of change, let alone the right to participate in making those changes.

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The law has since stalled in the U.S. Furthermore, the European Telecoms Commissioner rejected the need for such legislation. As she told the :

I believe that we should not put European companies in an invidious position where their choice appears to be to break the law or leave the market to more unscrupulous operators … Rather, our goal should be to find ways to allow operators and service providers to respect human rights without doing either.

This raises a jurisdictional challenge that is common in both human rights cases and Internet regulation. The international nature of this problem may prevent such regulation from protecting human rights. Democratic countries that pass such legislation may only undermine their own companies from doing business internationally, while local or regional companies reap the benefits of complying with repressive governments. If these authoritarian nations become closed to business from democratic countries, it may even slow down the spread of democratic ideals.

The also raised another important aspect of such legislation:

Reding said the U.S. State Department and Department of Justice were cautious about the Global Online Freedom Act as even democratic countries in Western Europe could be subject to restrictions foreseen in the draft bill.

A legitimate concern is how such legislation will be applied, and if it could become too discretionary. The proposed U.S. Global Online Freedom Act makes an exception for companies who turn over identifying information for the purpose of “”. While the law would be a valuable weapon against authoritarian regimes, it is unclear how this would apply to controversial law enforcement efforts by otherwise democratic governments.

Even more peculiar is that the U.S. government could exempt itself from such legislation in the name of national security. Recall that telecom companies cooperated with U.S. government requests for and surveillance. This warrantless surveillance program attracted criticism for violating the U.S. constitution.

Without a clear, consistent distinction between legitimate and abusive national security purposes, a law with such international impact could undermine itself with the appearance of hypocrisy. Such a law needs international cooperation in order to be effective, and thus needs to be seen as legitimate and fair beyond its borders. Thus, democratic nations should build a consensus around the kinds of online freedoms they are trying to protect, and draw a clear line that applies to everyone. For such an international problem, there is strength in numbers.

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“Small-cap technology companies from Silicon Valley to Israel, struggling to raise enough money to survive amid the credit crisis, are selling prized patents to stay in business. ... VocalTec Communications Ltd. Chief Executive Officer Ido Gur said he needed to sell 15 of the Israeli company’s 22 inventions to raise money to market its main Internet phone software.

The Bloomberg article is littered with anecdotes and examples. One chairman suggests the lack of credit led to declining sales, and companies began to sell IP for quick revenue. The fact that patent holders are boldly selling their rights rather than using them for collateral credit makes sense, at least on the surface. Lenders are still cautious, and the recession is putting a lot of pressure on businesses. Selling intellectual property assets may be the only viable way out, especially if a company lacks the resources to develop an invention and market it.

The article also notes that high-skilled workers are being laid off, and speculates that they may be taking intellectual property rights with them. This trend is worth watching, but seems like it would be too rare to cause a large shift in intellectual property. Many major technology firms are quite possessive of their patents, using employment contracts that keep IP rights with the company. Under other circumstances where employees have the bargaining power to keep a larger stake in their inventions, they will be too important to the company to be laid off. Then again, with no end in sight to the recession, anything is possible.

Although the article notes that applications for intellectual property transfers have markedly increased in the U.S. and U.K., . He claims that this trend may have an alternative explanation, and that the increase in transfers could happen for any number of reasons. He concedes that assets will shift around, but mostly due to an increase in mergers and acquisitions. Wilkof concludes with the following comment:

“I am sure that the current recession will lead to some significant changes in the use and commercialization of patents. But I remain unconvinced that a significant increase in the sale of patent portfolios will be one of them.”

We will have to wait and see what the ultimate effects of the recession are. It is possible that this is the beginning of a mass sale of patents. Perhaps not. Either way, there will be many interesting implications for intellectual property in the shifting economic climate.

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Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers. At risk is a principle known as network neutrality: Cable and phone companies that operate the data pipelines are supposed to treat all traffic the same -- nobody is supposed to jump the line.

If true, this would signal an important shift in the net neutrality debate. Google has been one of the biggest proponents of network neutrality in a battle that . Back in 2006, Microsoft and Google advocated that treating all network traffic indiscriminately was essential to preserve the open nature of the Internet. On the other side were phone companies such as AT&T and cable companies such as Comcast. Their argument is that they need to be able to charge users for different kinds of content, in order to raise revenue for further upgrades. If Google switched its position, the balance of power will have shifted in a debate that has prompted enormous lobbying of the U.S. government.

But the key words in that last paragraph are “if true”. It isn’t.

On Google’s , they explained that the WSJ misinterpreted Google’s strategy of caching content with ISPs:

Google has offered to "colocate" caching servers within broadband providers' own facilities; this reduces the provider's bandwidth costs since the same video wouldn't have to be transmitted multiple times. We've always said that broadband providers can engage in activities like colocation and caching, so long as they do so on a non-discriminatory basis. … I want to be perfectly clear about one thing: Google remains strongly committed to the principle of net neutrality, and we will continue to work with policymakers in the years ahead to keep the Internet free and open.

Not only does , but disputed the Wall Street Journal article on five different claims. One of those inaccuracies was a claim that Lawrence Lessig had also softened his support for network neutrality, which . Even the claim that the U.S. President elect had softened on network neutrality is on . While the article from the Wall Street Journal stirred up a lot of shock and debate, it turned out to be much ado about nothing. Many of the article's claims could have been quickly verified, and apparently weren't.

Still, it would not be a surprise to see elements of the net neutrality coalition fragment and disagree. Although one side of the debate shares a common commitment to an open Internet, there are many different ways to achieve this. Even in the , it is unclear if net neutrality necessitates an absolute restriction on traffic shaping, or just careful management so that it does not discriminate between wholesale and retail customers. Either way, whatever happens in the U.S. will have a huge influence on Canada and the rest of the world. As U.S. lawmakers respond to pressure, we will see if Canada follows suit.

The post Playing broken telephone over net neutrality appeared first on IPOsgoode.

This issue had already been addressed in Canada. In R v. RC [[2005] 3 S.C.R. 99, 2005 SCC 61], the Supreme Court stated that keeping someone’s DNA records would have a disproportionately negative impact on their privacy, compared to the benefit to criminal justice. In particular, Fish J. noted that DNA contains information of the highest privacy, since it is “capable of revealing the most intimate details of a person’s biological makeup.” Thus, taking and retaining a DNA sample was considered a “grave intrusion” on a person’s privacy.

The European Court encountered this issue after a complaint from two English suspects. Local police had retained their DNA samples after their arrest, even though they had been cleared of any criminal wrongdoing. This issue fell within the scope of , which protects the privacy of individuals, but makes allowances for the public interest such as security and crime prevention. The Court commented on the scope of the DNA records, noting that police retained a sample regardless of the gravity of the offense, for an indefinite amount of time, without any independent review of their decision-making processes. Thus, the European court’s conclusion was much like the SCC, focusing on an appropriate balance of interests:

“The Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.”

The influence of other jurisdictions cannot be discounted. Along with Canada, several member-nations of the Council of Europe were cited in contrast to England’s “indiscriminate” practices. to retain a DNA sample only from suspects who have been convicted. This shows how democratic countries have a responsibility to one another. When setting policy in new and controversial areas, they are leading their peers by example.

A DNA database can have a potentially dangerous impact on privacy. The notes that keeping an arrested person's DNA on record can threaten their presumption of innocence in future investigations. The council also highlights the disproportionate number of minority arrests in the U.S. and the UK, many of who are released due to a lack of evidence. Thus, keeping a record of every arrested person would have an imbalanced effect on the privacy of racial minorities. There is also the issue of expanding use (and potential misuse) of such samples. Alabama has already authorized the use of such DNA samples for medical research, and the report notes several other states with open-ended authorizations. With several other potential issues, it is reassuring that the European Court of Human Rights (and Supreme Court of Canada) has been so diligent in weighing the costs and benefits of DNA records.

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“The point of novelty test has proved more difficult to apply where the claimed design has numerous features that can be considered points of novelty, or where multiple prior art references are in issue and the claimed design consists of a combination of features, each of which could be found in one or more of the prior art designs.”

An ingenious design might not always possess a single point of novelty. The design may involve multiple points of novelty, or the grouping of otherwise typical features in a novel way. The court in Egyptian Goddess ultimately redefined the infringement test. It concluded that an ordinary observer, familiar with the prior art, would naturally be drawn to features of the designs that made them distinct from the prior art. This would allow such an observer to see whether these distinct features had been appropriated or not. attempts to distill this down to a simple principle:

“… the scope of infringement varies inversely with the scope of prior art. When a patented design is in a field crowded with similar prior designs, the only infringing designs will be those that are strikingly similar to the patented design yet different from the prior art. Alternatively, when the patented design stands alone as a breakthrough design, the potential variety of infringing activity actually increases.”

Patently-O suggests that it might even make sense to apply this same standard for patented inventions, thereby increasing the scope of a claimed invention when it goes well beyond the prior art. But to some degree, patents already accomplish this when their claims are broad and valid. A truly breakthrough invention can enjoy a broad claim of patentability, whereas an invention with smaller changes must define its scope with more nuance in order to be considered valid. In that sense, the patent system already provides wider protection for major breakthroughs.

Perhaps more interesting is the notion that this is a test from the perspective of an “ordinary observer”. Although the test is an objective standard to be evaluated by the court, it may invite the opinion of actual ordinary observers. We have already seen this in trademark confusion cases, with trademark experts using surveys of ordinary people to support their testimony. Forty years ago, a survey of ordinary people was considered inadmissible as hearsay. By the late 1980s, MacFarland J. determined that survey evidence was not just admissible, but it was necessary for trademark confusion cases. In Sun Life Assurance Co. of Canada v Sunlife Juice Ltd. he asserted that any “attempt to make such a determination [of confusion] without regard to evidence of what others may think or have said would to my mind be nothing more than an exercise in pure judicial fantasy and of not much assistance at all.”

Patent cases already make strong use of expert testimony. But this sometimes risks degrading the argument into a mere duel of experts – hired guns who echo the views of their clients. If infringement is determined by an “ordinary observer familiar with the prior art”, then it would be possible to design a scientific survey that represents the views of an independent group of observers with greater objectivity. The survey process would familiarize subjects with the prior art and then ask them to assess the similarity of the patented material. Or, perhaps it would be more effective to actually survey experts in the field who are already familiar with the prior art. Either way, shifting towards an ordinary observer test could initiate a marked change in how infringement cases make use of evidence.

The post What would an ordinary observer do? appeared first on IPOsgoode.

Obviously, this raises concerns about freedom of speech. , comparing it to other jurisdictions that have restricted certain websites:

In a few cases, the firms have been fined for not sufficiently complying with some of the courts' censorship demands. This is not the first time that a judge or government has tried to filter the Internet in an ill-considered way, an approach that is in the same stroke both disproportionately over-broad and ineffective. Recent examples of similar missteps include the blocking of scientist Richard Dawkins web site in Turkey and a US judge's order to shutter wikileaks.org.

Argentinean law has gone beyond targeting specific kinds of content, and effectively targets intermediaries. These major search engines were held responsible for simply posting a link to content that was posted by others. There are concerns that this could chip away at the legal shield for various web services, holding them responsible for virtually independent content creators. But , where search engines have been cleared of such responsibility. A recent ruling from the British Columbia Supreme Court found that merely . In that case, posting a link to defamatory information was not considered defamation in of itself.

Of course, there are real concerns about the spread of dangerous information on the Internet, and the potential for hyperlinks to aid that spread. Websites ignore international boundaries. Even if certain web content is illegal in one jurisdiction, users may seek websites that are legally hosted in other jurisdictions. In order to effectively deal with hate speech or child pornography, it may become necessary to target mere hyperlinks. For example, . But dealing with the defamation of famous persons is more challenging, partially because there are so many defenses to publishing defamatory material, including a good faith belief that the material was a factual report. Targeting links to defamatory content would either be so harsh as to chill free speech, or would be too cautious and would permit defamatory material to spread too easily.

Even if we accept that Argentina’s strategy of blocking search results is justifiable, :

Internet users in Argentina who know about the censorship are free to use many of Yahoo!'s other Spanish-language search sites, for example, Yahoo! Mexico or Yahoo! Spain. Even those users unaware of the censorship are likely to seek out other search engines, such as Google, once they come across a search page with zero results. Poor typists are also in luck, as Yahoo! has clearly implemented the orders narrowly, not removing results for "diegomaradona" or "diego maradone," for example.

For better or for worse, the Internet is a stubbornly free market of information. Yes, governments may be tempted to impose restrictions on major search engines, and deputize these companies as gatekeepers. But users will become frustrated with restrictive gatekeepers and seek out alternative sites that are more accommodating. It is not hard to imagine an alternative service becoming popular enough that government imposes restrictions on it too. But at best, this just creates an endless cycle of users moving from one service to another. At worst, this chases all links to the content out of the jurisdiction.

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