Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Almost five years ago, the Authors Guild launched a class action lawsuit against Google over what was then called the Google Library Project. This led to the controversial 2008 Google Book Settlement, which has been one of the major hot issues in copyright law and policy discussions ever since. a ĚýłŮłó±đłľ±đ at , and of course, tech . (I'd particularly recommend Annalee Newitz's “” over at io9.com as an example of the sort of thinking spurred by the settlement proposal.)Ěý

US District Judge Chin has yet to rule on the acceptability of the Google Book Settlement, so while we're all waiting for that, book illustrators and visual artists have joined the fray by launching (a scan of the complaint is available from this link).

The suit can't really be a huge surprise to Google. They've taken prophylactic measures, as Google Books already does not display illustrations and photographs from books. Still, the images are copied, even if they're only for Google's internal purposes (so far). As the complaint observes (at para. 50), even one digital copy is infringing. Another reason Google shouldn't be surprised is that organizations representing visual artists attempted to get involved in the original Google Book Settlement negotiating process, only to be rebuffed. That sounds like a bit of an invitation to launch their own complaint.

The American Society of Media Photographers seems happy to oblige. They're joined by the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, as well as a half dozen individuals. With a deal as far-reaching as the Google Book Settlement in the works for their author colleagues, it makes sense that visual artists would want their voices to be heard. Eugene Mopsik, Executive Director Of the ASMP, is quoted in as saying, "Through this suit, we are fulfilling the missions of our organizations and standing up for the rights of photographers and other visual artists who have been excluded from the process up to now. We strongly believe that our members and those of other organizations, whose livelihoods are significantly and negatively impacted, deserve to have representation in this landmark issue.” The complaint itself opens up with a bit of a bang: “This is a civil action that arises under the laws of the United States and is designed to redress the most widespread, well-publicized, and uncompensated infringement of exclusive rights in images in the history of book and periodical publishing.” Yikes!

One difference between the authors' and the artists' claims that may prove to be significant is that the artists are also going after the Google Books Partner Program. This program allows publishers to voluntarily provide Google with access to their catalogue for Google to scan and include in Google Books. Visual artists, it would seem, aren't represented in that process either.

The question, it seems to me, is what are the visual artists hoping to gain from this suit? At the start of the litigation between Google and the authors, I doubt very many foresaw that it would result in something like the current form of the Google Book Settlement (wasn't it supposed to be a fair use case?). The ultimate outcome of this case could be just as unpredictable. If it resulted in some sort of settlement similar to the one with the authors (assuming, for the moment, that that is approved), it would result in a more robust Google Books service. Depending on your point of view, that's either a very good or a very bad thing.Ěý The fact that Google Books doesn't display illustrations certainly limits its completeness and usefulness. Perhaps the parties will have learnt something after the various trials and tribulations of the settlement with the authors. Although this shouldn't directly affect the original Google Books Settlement, it certainly muddies the waters even further for the Google Books project itself.

Ěý

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Can someone own facts? According to the US “hot news” doctrine, the answer is – sorta. Under certain circumstances, a news gathering organization can receive “quasi-property” rights in facts against allegedly free-riding competitors. As neither property nor copyright, the rarely used hot news doctrine has perhaps been something of a black sheep when it comes to conceptualizing legal protection for intellectual labour; for most, I would hazard, it hardly springs to mind when discussing intellectual property.

As , though, the recent case of Barclay Capital Inc. v. TheFlyOnTheWall.com has brought renewed attention to this doctrine – attention which may give news around the Internet some pause for thought.

The hot news doctrine began life as a matter of US federal common law in 1918 in International News Service v. Associated Press. There, William Randolph Hearst's INS was using data published by the AP as the basis for its own stories, skipping the messy business of at-the-source journalism. This problem was particularly acute when one considers time zones: the INS could buy an early edition of an AP paper on the East Coast and have their version of the story out at the same time as the AP's early edition on the West Cost. Although the AP's stories were themselves published openly (and copyright does not subsist in facts themselves – as Justice Pitney wrote, it was “the history of the day”), the US Supreme Court ultimately held that INS's practice of using the AP stories as a basis for their own was a form of anti-competitive misappropriation. As a remedy, it prevented INS from publishing news obtained from the AP for several hours after publication.

Although the US federal common law is now of limited scope, several state courts adopted it and the doctrine lives on to this day. In 1997 it was revisited and reformulated in order to not interfere with federal copyright law in National Basketball Association v. Motorola, Inc. There, Motorola had developed an automated text messaging system that sent out game updates to subscribers. The Second Circuit Court of Appeals developed the current test for the hot news doctrine:

1. plaintiff generates or gathers information at cost;
2. the information is time-sensitive;
3. the defendant's use of the information constitutes free-riding on the plaintiff's efforts;
4. the defendant is in direct competition with a product or service offered by the plaintiffs; and
5. the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.ĚýĚý

Although the NBA was unsuccessful in passing this test, the doctrine was given new life and a modern formulation.

The hot news spread were the equity recommendations made by Barclay Capital, Morgan Stanley, and Merrill Lynch. These recommendations (culminating in buy or sell recommendations and target prices) are the product of the expertise of these firms and represent considerable expenditure of effort. Generally, these firms produce ongoing reports which are released to their subscribers (ranging from financial news services such as Reuters to large institutional investors) prior to the opening of the equity markets, with updates potentially being released throughout the day. These recommendations can be highly time-sensitive, as the mere fact of an upgrade or downgrade can motivate large trades and itself lead to significant movement in the stock price. TheFlyOnTheWall.com pioneered an aggregation service (since widely imitated) that spreads financial news, including recommendations made by equity analysts. The recommendations themselves are tightly controlled through contracts with the firms' subscribers, but of course, leaks happen (TheFlyOnTheWall.com at first used employees within the firms to get information, but that practice ceased several years ago).

TheFlyOnTheWall.com was ultimately found liable, and must now wait until 10am to publish recommendations made prior to the start of trading, or two hours in the case of recommendations made during trading hours. Citizen Media provides an (as well as a link to a scan of it), so I'd like to just point out what seems to me to be one of the major weaknesses.

In “Misappropriation: A Dirge”, Richard Posner (linked to by Citizen Media, available ) argues that the real “meat” of the NBA test is step five, with the prior steps “identifying the conditions in which the criterion stated in (v) is likely to be satisfied.” I found the analysis of this step in the present case to be unconvincing. The firms showed that their research divisions had been clawed back in recent years, but no real effort was made to clearly demarcate to what extent that was a result of activities of operators such as TheFlyOnTheWall.com. Mention is made of the recent economic recession, as well as the fact that the firms were part of a $1.4 billion settlement with US regulators over conflicts-of-interest in their analysis operations in the . To meet the NBA test, the existence or quality of the operations in question must be “substantially threatened”. On a plain reading, this to me suggests a quite high bar. Judge Cote wrote that, “...the misappropriation of their Recommendation by Fly and others has also had a profound effect on their business model.” Does affecting a business model meet the bar set in step 5 of the NBA test?

TheFlyOnTheWall.com pointed out that many other sites published the recommendations, and so they should therefore be considered public. The court disagreed. However, Judge Cote did order a review in one-year, putting an obligation on the firms to take actions against these other misappropriators. This decision should also give other, unrelated news aggregators some reason for concern. This court specifically excluded non-systematic, contextual reporting from this order, which leaves the door open for action against other systematic aggregators. It's no secret, for example, that Rupert Murdoch is looking for some way of through services such as Google News. In , two lawyers advocated for the expansion of the hot-news doctrine precisely as a way of combating Google, writing that the US should, “Federalize the 'hot news' doctrine. This doctrine protects against types of poaching that copyright might not cover -- the stealing of information not by direct copying but simply by taking the guts of the content. While the Internet has made news vulnerable to pilfering because of the ease of linking from one site to the next, the hot-news doctrine has limited use because it is only recognized in a few states.”

So far, the hot news doctrine doesn't seem to have been tried in Canada. Such an attempt would raise some interesting federalism questions. Still, if hot news does become a weapon against online news aggregators in the US, it will certainly affect practices north of the border as well. It will be interesting to see if this doctrine, originally developed in the age of the wire service, gains relevance in the age of the Internet.

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The rapid rise of online social networks (can you believe that Facebook only opened itself to the general public in 2006?) has already raised many privacy-related issues. For example, I would suspect that many readers of IPilogue have already heard about stories of people losing their jobs over careless online behaviour (my personal favourite remains that of a BC NDP candidate who was forced to withdraw from the provincial elections; that's a hard one to live down).

The Canadian Privacy Commissioner's last to Parliament focused largely on the privacy issues related to the pervasive use of social networking sites amongst Canadian youths (I summarized the report ). At the heart of many of these discussions lies the tension between traditional concepts of privacy on the one hand and the desire to share personal information (which is what leads people to social networking sites in the first place) on the other. Clearly, new conceptual approaches are needed. One interesting such foray is (available on SSRN).

After a brief introduction to some of the pitfalls to thinking about privacy in the online world, Grimmelmann poses his fundamental question: “is the loss of privacy in social media something the law ought to worry about, and if so, how?” Addressing the first part of that question, he identifies four “Myths of Privacy on Facebook”: that users don't care about privacy; that they make rational privacy choices; that their desire for privacy is unrealistic; and that regulating Facebook as if it were a database would be sufficient (the last, according to Grimmelmann, is really a half-myth – a distraction, rather than actually false).

The first myth, he points out, seems to have a fair amount of traction. This goes back to what I mentioned above as one of the central tensions of current privacy debates: people want to share personal information. That's the whole point of signing up on something like Facebook in the first place. But for Grimmelmann, this is far from the end of the story, and shouldn't be taken to mean that people have given up on any sense of privacy; that's “an elegant theory, except for the inconvenient fact that it doesn’t fit the available data.” He points out that there have already been several user revolts on Facebook over privacy changes – from the roll out of the News Feed to the ill-fated . Although this doesn't really settle the issue of what privacy means in today's world, it's enough to show that, at least, many users do care.

The myth of rational privacy choices is deeply undermined by the simple fact that privacy policies can be very complicated and confusing beasts, and even a user who takes care can easily fail to successfully navigate a complicated array of privacy options. The previous Facebook policy of automatically sharing a user's photos with their entire geographic network serves as an example.

Grimmelmann's discussion of the myth that the desire for privacy is unrealistic is very interesting. Here, he points out that the idea of “privacy” only has real meaning when embedded in actual social contexts. He uses the recent example of women posting the colour of their bra in their status updates as an example (purportedly to raise awareness of breast cancer – though I, for one, only learned of that long after the fad had ended). If a co-worker were to ask a colleague the next day what colour her bra was, that would likely be a form of workplace harassment. In other words, the same datum has different privacy values depending on the context in which it is embedded. The issue is not that privacy is dead, but that we need to consider the ways in which various practices are redefining the idea of privacy itself.

The final myth that Grimmelmann addresses is the idea that thinking about Facebook as a database will be sufficient to protect user privacy. He identifies “limited data collection”, “full disclosure”, and “no secondary use” as the key concepts in a database-centred model of privacy protection, and argues that while they are important, they don't really get to the heart of the “user-user relationships on Facebook.” It's hard, for example, to define what the “purpose” of sharing personal information on such a site really means – people use Facebook to “connect and share data”, but actually identifying the scope of that can be problematic. Grimmelmann argues that if “secondary use” just means “'any use not originally contemplated by the user,' then all we’ve managed to do is restate the problem. We got into this mess precisely because users have shown themselves unable to predict all the ways in which their information might be seen.” Still, I would suggest that, despite their drawbacks, these sorts of database-centric protections can be powerful in addressing contemporary privacy issues. The (responding to a complaint launched by the ), which has led to Facebook , shows that there is still potential here.

Still, in the above Grimmelmann is simply arguing that privacy on sites such as Facebook should be legally protected and that we need new ways of thinking about online privacy. To aid us in this rethinking, he proposes using concepts drawn from product-safety laws. Just as the manufacturers of physical goods can be liable for design or other flaws in their products, so should the providers of online services. For example, by focusing on the consumers' expectations of the product, we can gain insight into what privacy practices result in user backlash. He uses the recent example of Google Buzz (and the) to show how product-safety concepts can be usefully applied to contemporary privacy issues.

This is certainly an interesting idea, and should definitely be pursued. Hopefully, thinking about privacy in terms of product-safety can help contribute to (what I would suggest is) a badly-needed rethinking of privacy in today's world. Some issues remain, however. For example, I'm not certain that a “consumer expectations” analysis will be easier to apply than the “secondary use” analysis he critiques earlier – both ultimately lead to the question: “what exactly did the user consent to?” It seems to me that this remains the real heart of the issue. Take, for example, the heated response generated when Facebook first introduced its News Feed. By today's standards, this seems almost quaint. Ben Parr, one of the leaders of the anti-News Feed revolt, certainly feels differently about the matter now, and writes that “.”

Grimmelmann doesn't argue that product-safety style thinking is sufficient on its own, but rather that some form of tort liability inspired by product-safety law could be a useful part of a larger strategy that includes regulation and user education. It's a fascinating idea, and one that those interested in conceptualizing privacy should certainly check out.

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

In 1934, Marion Sinclair wrote a short tune, “The Kookaburra Song”, for a Girl Scouts competition. The tune is a short, 4-bar melody intended to be sung as a round (a round is where different voices sing the same melody but start at different points, so that the melody forms a counterpoint with itself – “Row, Row, Row Your Boat” is a well-known example). The song was successful, and has since grown to enjoy folk-like status within its native Australia.

Almost fifty years later, the Australian band Men at Work recorded the song “Down Under” for their debut album Business as Usual. That song went on to be an international hit, in the process earning millions of dollars and becoming an iconic song of Australian pride and identity. On February 4 2010 Jacobson J of the Federal Court of Australia found that “Down Under” infringed the copyright in “The Kookaburra Song”, essentially finding that Men at Work were plagiarists (the decision can be found ). While the song tells of men who chunder, according to Jacobson J it would seem they were really concerned with plunder (the rhyme is just too awful to resist!).

In both Australia and Canada the law of musical copyright infringement, in the sense of plagiarism rather than outright reproduction (such as in filesharing), comes from the English case Francis Day & Hunter Ltd. v. Bron. It was established that there are two elements necessary for a finding of infringement: substantial similarity between the two works (or of a substantial part), and a causal connection. The “causal connection” requirement reflects the fact that copyright is only infringed when there has been actual copying – if two people, both on separate deserted islands, were to independently come up with the same song, both would have valid copyrights in their works and neither would have infringed on the copyright of the other. The infringing part of “Down Under” is the flute riff performed by Greg Ham that opens the song and recurs twice, and Jacobson J had no difficulties in finding this causal connection. “Kookaburra” was, and continues to be, well-known in Australia. Particularly damning, though, was the testimony of Colin Hay (one of the songwriters and a party to the suit), which led Jacobson J to find that “the flute riff played by Mr Ham while sitting in the tree [in the music video] was a direct musical reference to Kookaburra, although he did not concede that it was an obvious reference.” Furthermore, Greg Ham himself was not called to testify – a failure from which Jacobsen J drew negative inferences.

The question of substantial similarity is more controversial. Such evaluations must always involve a heavily subjective element since music is a fundamentally non-referential form of expression; it's not quite like, for example, text, where establishing objective similarity is relatively straighforward.Ěý This is especially true in cases of plagiarism such as this, where the question isn't one of literal reproduction but rather one of similarity. The decision is helpful in that it actually reproduces the relevant portions in musical notation. Jacobson J outlines numerous significant differences between the two songs, including rhythm and harmony, ultimately finding that two bars of “Kookaburra” are referenced. But the analysis is focused on identifying similarities, not differences. A televised Australian news reportĚý ; have a listen and judge for yourself.

The musical analysis in a case like this proceeds from a fundamentally atomistic conception of music, in which the work is dissected into discrete elements which are then compared to discrete elements from another work. From a historical perspective, I would suggest that this is highly problematic. The reality is that music, perhaps more so than any other art form, works with limited material (the 12 chromatic pitches of the western scale, of which the overwhelming majority of popular music draws upon the 8 diatonic pitches of the major/minor system of functional tonality).Ěý "Similarities" are easily found.Ěý Moreover, quotation and borrowing has a long tradition within even the most valorized musical traditions.Ěý For example, the western classical tradition is often held up as the most prestigious body of works and as the canon that most emphasizes technical accomplishment and originality. Even this tradition, however, relied heavily upon musical borrowings and quotation, practices which were pervasive in even the 19^th-century tradition, which heavily emphasized a transcendental conception of music authorship which privileged originality. Borrowings (including what we today would call outright plagiarism) was an accepted part of musical production stretching back to the dawn of the western tradition – an excellent example is the .Ěý Handel will serve as a typical example – he frequently quoted (to be generous) at length from his contemporaries. This was not perceived as a problem during his lifetime, but only emerged as a critical issue in 19^th century scholarship. For an excellent introduction to the great importance of musical borrowings in the history of the western classical tradition, I would recommend Olufunmilayo Arewa's article “”.

In the Canadian context, should this reality affect the legal reasoning in such cases? I would suggest that it should. In the Supreme Court strongly emphasized the importance of considering the purpose of copyright law, which was identified as: “...to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” It's hard to say how Canadian courts would treat a case like this, since there have been very few such cases and none have gone to an appellate court (see Gondos v. Hardy, Grignon v. Roussel, and Drynan v. Rostad). The problem here is that there is a real risk that the sort of atomistic musical analysis used in comparing “Down Under” and “Kookaburra”, which would identify objective similarities in a great deal of music, past and present, undermines the public's interest in encouraging the creation and dissemination of new works. The decision sends the signal that musicians need to be on constant guard of even alluding to other works, even unconsciously.Ěý This is simply incompatible with the actual nature of musical composition. Denny Burgess, the director of the Australian Songwriters Association, for example,that, “'Every songwriter, to a larger or lesser degree, is influenced by pieces of music, riffs etc. that they have heard before, and they are bound to come through in the songs … People will always pick up similarities, but it is a very subjective thing.”

It should also be noted that the decision has drawn intense criticism from the public. a fairly polite example, but discussions on the topic are often filled with disgust at the decision and the entire legal profession. These facts don't lend themselves to popular sympathy – the original song was written eighty years ago, the original composer died twenty years ago and wasn't active in enforcing the copyright during her lifetime, and the current ownerĚý of having paid only $6100 for the rights while generating hundreds of thousands of dollars in royalties.

The parties will return to court on February 25 to assess damages. Larrikin Music is asking for 40 – 60% of all the royalties generated by “Down Under”, which would easily amount to millions of dollars. Just how much those two bars are worth will likely prove to be as interesting as the finding of infringement itself.

Ěý

The post "Men at Work" Liable for Copyright Infringement: Kookaburra Gets the Last Laugh appeared first on IPOsgoode.

Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

, a website providing “news, views and information about science, technology and the developing world” recently a move by to declare the techniques for farming a variety of giant white maize, paraqay sara in the Quechua language, a part of Peru's cultural heritage. Although the practical effects of this declaration are unclear, it is noteworthy as part of the continuing movement to recognize and protect traditional and communal forms of knowledge in a global intellectual property regime that emphasizes rewarding individual innovation.

The maize in question has a long history of cultivation which stretches back to the pre-colonial era. It is produced in a narrow geographic region – the Urubamba Valley or Sacred Valley of the Incas, close to the famed Machu Picchu. However, the variety is already protected through the geographic designation of origin mechanism. One effect of declaring the maize a part of Peru's cultural heritage may be to grant further protection to the indigenous name – currently, for example, it is listed only under its Spanish name, MaĂ­z Blanco Gigante Cusco, in the .Ěý While this move may have significant symbolic value and lay the groundwork for the future promotion of local agriculture,Ěýit doesn't seem to currently add any legal protections. The SciDev.net report, for example, cited Alejandro Argumedo of the Peruvian NGO, who believes the cultural heritage designation will not have any effect on the intellectual property status of the variety. Rodomiro Ortiz of the approved of the move as recognition of the contribution of traditional farmers and farming techniques to biodiversity.

This isn't the first time farming techniques have received recognition for important cultural contributions. In 1995, for example, the 2000 year old Ifugao rice terraces in the Philippines were recognized by UNESCO as a . Probably the most prominent use of such designations, however, are to protect more tangible forms of cultural heritage. Many countries now have legislation aimed at regulating the sale of historical and cultural artifacts. Peru actively uses its cultural heritage legislation and various bilateral agreements in this manner. Last November, for example, the US Immigration and Customs Enforcement agency after seizing them from a Miami resident who tried to enter the US with the items in his luggage. Another prominent example is the ongoing decade-long battle between . Yale currently holds many (part of the dispute concerns the quantity in question) artifacts brought to the US by Hiram Bingham, the “discoverer” of Macu Picchu. The two parties reached an agreement over the matter, but Peru backed out over claims that Yale was not honouring its obligations or respecting Peru's heritage. The matter is currently before the courts; recently Yale on the grounds that the limitations period had expired.

This sort of dispute illustrates how laden the question of cultural heritage can be with issues of colonialism and national identity. Even if declaring paraqay sara affords little concrete legal status to the historic maize, it certainly makes a statement about the significant cultural importance of the crop and the farmers who developed it.

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The on a proposed law in France about creating an online “right to forget” (Internet legislation would seem to be a hot issue in France; recent news includes the October 2009 acceptance of the graduated-response “3-strikes”, and President Sarkozy has been talking about a “”). There doesn't seem to be much concrete information available about the proposed law yet, but the BBC article suggests that the “right-to-forget would force online and mobile firms to dispose of e-mails and text messages after an agreed length of time or on the request of the individual concerned.” As with many attempts to regulate content on the Internet, the first question that comes to mind is the practical enforceability of any such rule – John Gilmore famously said that “The Net interprets censorship as damage and routes around it”, and there's plenty of evidence to suggest that statement still has a great deal of truth.Ěý The proposed law also raises interesting questions about how societies and nations are struggling to come to grips with a digital world in which vast amounts of personal data are collected -- and never forgotten.

The proposed French law addresses real concerns that the Internet – which, unlike individuals or communities, never forgets – poses a threat to users who may find themselves struggling with the perpetual online presence of their past actions. The BBC article quotes Professor Frau-Meigs of the Sorbonne, who observes that “People and young people need to be protected by the State so that there is fairness in the way this protection is established”. Canada's Privacy Commissioner, Jennifer Stoddard, has also noted that young people in particular are perhaps ill-equipped to fully appreciate the consequences of their online behaviour and are at risk of having their Internet presence haunt them in their future lives (I wrote about the Office of the Privacy Commissioner's last annual report ). It's easy to find stories about people being harmed by the persistence of online data. In BC, for example, a after some of his Facebook photos became public. Here in Ottawa, a local grocery chain over online discussions. For many more examples, just do a search for “Facebook fired” or getting “dooced” (named after popular blogger Heather Armstrong, aka, who was fired for comments made on her blog).

I think it's important to keep in mind that examples like these are really just the very tip of the iceberg. Most people today have been online for ten or fifteen years at the most (, often cited as the first web browser, was released in 1993), and the ubiquity of social networking is more recent than even that. What will a discussion like this sound like in another ten or twenty years, when there will be a generation of adults whose entire lives were documented online?

Within the European context a law of the sort proposed by France is not totally novel. For example, Germany's “right to personality”, which allows, amongst other things, for released criminals to prevent the publication of their name in association with the crime for which they were convicted, forms the basis for a current lawsuit against Wikipedia (the NY Times writes about the case; an examination of the German constitutional basis of this law can be found in: Paul Schwartz, “The Computer in German and American Constitutional Law: Towards an American Right of Informational Self-Determination” (1989) 37 American Journal of Comparative Law 675 – sorry, no publicly available link).

While the Internet may route around censorship, I think it is also clear by now that this doesn't mean that laws are irrelevant to the Internet. Although legislation of the sort contemplated by France likely cannot do anything to prevent someone from saving a copy of someone else's embarrassing photograph and spreading it themselves, it could certainly affect the privacy and data-retention policies of larger publications. Returning to the German example discussed above, for example, there is little that can be done about people spreading the convicted murderer's name in e-mails or instant messages, but publication of the name in major media can certainly be stopped.

While the reasons for the perceived need for laws regulating online memory may be clear enough, care will be needed in drafting any such legislation to prevent overly invasive protectionary measures. that there is already an established industry in Search Engine Optimization (SEO), and one of their services is “burying” information a client may want forgotten so that it only turns up deep in any search results. In his article Morozov observes that one such company, Reputation Squad, is quoted in the BBC article, and that laws such as that proposed by France could end up effectively subsidizing their business. I would further add that laws such as this could become weapons in the arsenal of large organizations to stifle criticism. The BBC article quotes another SEO expert who describes how his company deals with “negative buzz” from bloggers: “If they don't instantly remove the litigious items, and there's always a hardcore who refuse to budge, then we have to, shall we say, insist a little harder”. If any “right to forget” legislation bleeds over into the territory of defamation law, it could pose a threat to online free speech.

Additionally, I think the proposed French law also raises some very interesting questions about the relationship between privacy, memory, and identity – and how we, as societies and governments, are grappling with new technological realities. Here I am deeply indebted to Professor Ian Kerr. For example, in an article written with Professor Jane Bailey, “Seizing Control? The Experience of Capture Experiments of Ringley & Mann” (available from Kerr's website), the authors discuss the idea of CARPE technology – Continuous Archival and Retrieval of Personal Experiences. Technologist Steve Mann has given life to his idea of inverse surveillance or “” through his Eyetap technology – devices which record absolutely everything he sees. Furthermore, memory – of both the individual and the collective – is a central means through which we imagine ourselves and our place in society. Privacy, memory, and identity are all deeply linked, and the persistence of digital data challenges these deeply held relationships. The proposed French law can be seen as an effort to grapple with these changes. (For those interested in this sort of angle, I would highly recommend , an interdisciplinary approach to privacy law led by Ian Kerr.Ěý The book is available under a Creative Commons license and can be downloaded from the link.)

While CARPE-like technology represents an extreme end of the information-gathering spectrum, it is clear enough that more and more of our personal information is ending up online, often stored somewhere in the cloud. Left purely to technological and market forces, this trend is unlikely to reverse itself. In this context, battles over who has the right to hit the delete key will undoubtedly become more fierce.

Ěý

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Over the holidays the Supreme Court of Canada released two decisions – and – that have attracted considerable attention in the media. This is natural, since the decisions both directly address the ambit of media speech and, in the process, establish a new defence against defamation: responsible communication. The defence, detailed in Grant v. Torstar, has been hailed in the press with headlines such as “” and “”. So just how does this new defence work?

Grant v. Torstar concerned an article printed in the Toronto Star that related a local controversy about Peter Grant's attempts to gain regulatory approval for the construction of a golf course on his private property – approval for which his neighbours were convinced was certain due to Grant's ties to the former Ontario government of Mike Harris. The Star reported on this and Grant sued for defamation, in particular focusing on the comment of one neighbour who believed that approval for the golf course was a “done deal”. Grant won at trial, where the defendants attempted to rely upon an expanded idea of qualified privilege derived from recent English cases (privileged communications are those in which society has an interest in ensuring the unrestricted exchange of information and in which there is some duty imposed on the “speaker”, such as in legal proceedings or job references). The trial judge rejected this as it was felt that the report concerned only a local matter, and so the case went to the jury with only the defences of justification – that the “done deal” comment was true – and fair comment. The end result was a judgment of $1.475 million for the plaintiff, including $1 million in punitive damages.

The case went to the Ontario Court of Appeal, which in the meantime had itself decided Cusson v. Quan in which the defence of responsible journalism was established. Applying Cusson, the Court of Appeal found several errors in the trial judge's charge to the jury and ordered a new trial. Both Cusson and Grant were appealed to the Supreme Court, which took the opportunity to release both of its decisions concurrently and firmly establish the new defence.

In a decision written by Chief Justice McLachlin, the Supreme Court held unanimously that the defence of responsible communication (I'll return in a moment to the name) existed and that it could apply to Grant, agreeing with the Court of Appeal that a new trial was required. The defence has two elements. These are spelled out clearly at paragraph 98: “First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.”Ěý To help evaluate the term “responsible”, the Supreme Court gave a list of non-exhaustive factors to consider: the seriousness of the allegation; the public importance of the matter; the urgency of the matter; the status and reliability of the source; whether the plaintiff's side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”); and any other relevant circumstances.

The decision itself is very clearly written and gives an excellent overview of the law of defamation in Canada and other jurisdictions, as well as giving further clarity to the relationship between the existing “repetition rule” (that repeating a defamatory comment is subject to defamation claims) and the new defence.

Although the Supreme Court was unanimous in finding the defence of responsible communication exists, Justice Abella wrote a separate opinion differing in the application of the defence. The majority held that the first stage of the analysis – determining whether the matter is of public interest – is a question for the judge, while the question of whether the communication was responsible is for the jury. Justice Abella argued that both questions should be left to the judge, as they involve a balancing of interests that is fundamentally legal in character. The majority seems to have been concerned with preserving the historic importance of the jury to defamation suits (which has been enshrined in several provincial statutes and rules of procedure).

While the media has celebrated the decision as a major victory for free speech, there are potentially some concerns. , for example, notes that several key terms, such as “public interest”, “relevant circumstances”, and “responsible” itself are too vague to provide meaningful guidance to publishers. While this is accurate, I would suggest that it is natural for there to be some uncertainty whenever a new defence such as this is established, especially one that is fundamentally concerned with preserving a balance of broad values and interests (such as between free speech and protecting personal reputations). The mere availability of the defence is itself a strong statement by the Supreme Court in favour of freedom of speech and a loosening of the overly-strong protection of reputation Canadian law had previously afforded.

Besides the general interest and importance of Grant there is an aspect to the case that should be of great interest to those interested in technology law, and which has been overlooked in most of the coverage of the case. The Ontario Court of Appeal referred to the defence as “responsible journalism”, the nomenclature which was used by the Star in its arguments. The Supreme Court ultimately settled on the term “responsible communication”. The Court notes at paragraph 96 that, “...the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists.” In fact, blogs are specifically mentioned several times. With the declining fortunes of print newspapers, the future role of bloggers continues to be hostly contested. In Grant, the Supreme Court would seem to recognize the importance and legitimacy of bloggers as media outlets – while also putting them on notice that they will be held to a similar standard as their print media cousins.

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

People are clearly displaying more and more of their personal lives for all to see on social networking websites such as Facebook. Whatever one feels about the appropriateness of some of this behaviour, it's a fact that isn't likely to go away any time soon. This has raised a host of issues, many of which have been discussed here at IPilogue. , for example is Brandon Evenson's coverage of Prof. Jacqueline Lipton's talk on privacy and Web 2.0. I about the Privacy Commissioner of Canada's most recent annual report, which focused largely on privacy and social networks. Billy Barnes about Facebook's policy regarding deceased users, and Brian Chau has about privacy theft and social networks. (This is just a sample – click on the “Privacy” link near the bottomĚýof the IPilogue screen, under “Categories”, to find more!) So far, the most prominent privacy concerns have had to do with employment issues (such as pre-hiring online background checks or getting fired for posted content) or the social awkardness of negotiating new norms (the “Facebook creep”). The Electronic Frontier Foundation, however, has which hopes to shed light on what may be the most pervasive online snoop of them all: the government.

The seeks to compel several US agencies (including the Department of Homeland Security, the CIA, and Department of Justice, amongst others) to comply with the EFF's Freedom of Information Act (FOIA) requests regarding the defendants' use of social networking sites as “investigative, surveillance, and data collection tools.” Currently, almost nothing is known about the extent of these uses and what, if any, policies guide them. The lawsuit was prompted not in response to any published policy or regulation, but rather to an emerging body of unrelated newspaper accounts of government use and surveillance of social networking sites. For example, reports on how an individual accused of fraud was located through Facebook. What's interesting about it is that Secret Agent Seth Reeg, at least, seems to routinely use Facebook to locate suspects; the article describes the situation as, “the hold-nothing-back world of social networking, where police search Facebook photos for evidence of underage drinking and watch YouTube videos to identify riot suspects.” In another case, the FBI stormed and searched the house of a man who had used Twitter to spread the word of police movements during the G-20 summit in Pittsburgh. The story “” is particularly interesting. In it, Police Chief Edward Denmark, “said he would have no reservations about going undercover on Facebook - taking on a fake identity and tricking a suspect into accepting a police department employee as a friend, which would give police full access to the suspect's online profile.” Although Denmark denied ever having done it before, he says police do engage in undercover Facebook conversations, and that sending a fake friend request would not require any permission or oversight.

In response to stories such as these, on October 7 and 8 the EFF sent Freedom of Information Act requests to various US agencies. None of the agencies have complied to date, far exceeding the 20 day statutory deadline. The IRS invoked the 10-day extension for “unusual circumstances”, but has taken no further action. The EFF is hoping that the lawsuit will compel the various agencies to release how social networking sites are being used, including policy statements or internal guides and manuals. Certainly there are legitimate law-enforcement uses of social networking sites – but as the non-compliance with the FOIA requests shows, right now nobody seems to know anything concrete about what those uses are or if any safeguards are being observed to ensure privacy and due process rights are being respected. Without such knowledge, no meaningful public debate can occur on the proper scope of such activities. Hopefully the EFF will be able to shed some light on the situation.

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Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Utter the words “online copyright infringement” and most people probably think of the mass distribution of popular music on peer-to-peer networks or Hollywood movies being downloaded through bittorrent. A recent brouhaha over uploaded to (a photograph storage and distribution website popular amongst both amateurs and professionals) in a Toyota advertising campaign serves as a good reminder that the challenges posed by emerging technologies doesn't threaten only the rights of large content-owning corporations. As user-generated content (one of the hallmarks of the so-called ) increases in importance – both demanded by users and courted by companies – these sorts of disputes will likely become more and more common.

The situation with the Toyota ads is fairly straightforward. Toyota (or, more specifically, Saatchi & Saatchi Los Angeles, their advertising firm) set up a website promoting their 4Runner SUV. The website used various pictures that had been uploaded to Flickr by several photographers, at least some of which were duly marked “All Rights Reserved”.Ěý No permission was sought or obtained for the use of these photographs. Flickr users ; some got in contact directly with Saatchi & Saatchi. Ultimately, Toyota posted the following message in the discussion thread:

Toyota apologizes for pulling images from Flickr without photographer permission. Images from a handful of photographers appeared on a Toyota site for five days. We’re working quickly to reach out to the individual photographers involved. Until then, the images have been removed, and corrections have been made to the process of pulling images from Flickr.

The affected Flickr photographers reported differing levels of promptness in their dealings with Toyota and Saatch & Saatchi, but currently the links back only to Flickr photos which note that the photos are now being used with permission.

Although this story seems to have been settled amicably enough, it does raise some questions. For example, although Toyota has apologized, they never explained how this happened in the first place. Presumably, a large and experienced advertising firm like Saatchi & Saatchi (who themselves are no strangers to IP controversy – they after using unauthorized images of Kurt Cobain, amongst others) should know better than to just grab photographs marked “All Rights Reserved” and use them in advertisements. No explanation has been offered, leaving many Flickr users with a bad taste in their mouths and feeding a perception that, regardless of what copyright law demands, powerful organizations have a feeling of entitlement and privilege that leaves individuals severely disadvantaged. In response to Toyota's apology, User “” wondered if a car thief could respond with,

We apologize for aquiring [sic] vehicles from Toyota without permission. A handful of vehicles disappeared from Toyota dealers for five days. We’re working quickly to reach out to the individual dealers involved. Until then, the vehicles have been returned, and corrections have been made to the process of aquiring [sic] said vehicles from Toyota. Ěý

If intellectual property is truly property like any other, and infringement does equal theft, idog~'s dissatisfaction with Toyota's response is understandable. Flickr user “” expresses a typical frustration with the perception of unequal positions with the comment that,

Major corporations have NO ethics.. it is always about their bottom line or just $$$$.. If they can use someone else's work, rather than pay anyone, they feel entitled.. It is agains [sic] the law and most Corporations have deep pockets and NO fear of individuals.... Steamed up now..

Snorri Gunnarsson, one of the affected photographers, noted the hypocrisy on with, "when big corporations and well known ad agencies that of course have their own work copyrighted to the teeth, start behaving like kids on Pirate-bay, then that is just too much."

These sorts of conflicts will likely only increase as corporations seek to attract customer loyalty through incorporating user generated content in advertising campaigns. Toyota itself recently launched its “” campaign, which seeks to attract user submissions.

Ironically enough, there are also examples of how even the most zealous advocates for strict copyright laws can run afoul of the law. American Senator Orrin Hatch, for example, infamously called for the creation of technology that could remotely destroy an accused copyright infringer's computer. It was quickly discovered that . The party of French President Nicolas Sarkozy, advocate of France's “3 strikes” graduated response law, has itself been copyrights . Even the MPAA, a great advocate of stricter infringement laws, has had problems, most notably when they were for distributing GPL software in violation of the licence.

At the forefront of these sorts of issues are licensing concerns and ignorance. Flickr's popularity with professional photographers is largely a result of its relatively hands-off approach to its user's copyrights. Various user-defined licences to third parties, , are recognized by its Releasing something under a “” license, however, is no guarantee that it will be respected. Bradley M. Kuhn of the , for example, of the per day. Even more troubling, however, is how poorly these licences are understood by many users. A quick , for example, reveals many fundamental misunderstandings about the nature of not only a Creative Commons licence but copyright licensing in general.

Speaking of GPL violations, the Software Freedom Law Centre notes that , and can usually be resolved in a friendly manner. This highlights the importance of copyright education, for both individual users and employees of organizations. Copyright law has had something of a reputation for being both Byzantine and highly specialized. The days of the printing press as the chief source of infringements are long gone, however. As networking technologies blur the distinction between content producers and consumers it seems clear that increased awareness of both rights and obligations is necessary.

The post Pirates, Pirates Everywhere appeared first on IPOsgoode.

Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The copyright infringement lawsuit centering around the iconic Obama “Hope” image recently took a strange turn. On one side is the controversial artist Shepard Fairey, who produced the famous poster; on the other is the Associated Press, who claims ownership of the photograph, taken by Manny Garcia, upon which the image was based. Many fair use activists hoped that the case would break new ground in defining the scope of fair use in visual media. These hopes, however, have been shaken by Shepard's admission that .

Prior to the explosive popularity of the “Hope” poster, Shepard Fairey was best known for his OBEY line of artwork and merchandise (which was itself embroiled in trademark issues in its previous incarnation, “”). Ěý Fairey frequently adopts pre-existing visual material into his work, and so as the “Hope” poster grew in popularity, several enterprising bloggers began to hunt for the source photograph. Eventually the Garcia photograph was .Ěý Garcia, at first, didn't seem terribly put out by this, and told the, “If you put all the legal stuff away, I’m so proud of the photograph and that Fairey did what he did artistically with it, and the effect it’s had.”Ěý The AP, however, began making threatening rumblings and entered into discussions with Fairey (represented in part by Anthony Falzone, the Executive Director of the Stanford Fair Use Project). In the first twist of the whole saga, though, it was Fairey who sued the AP in early February, seeking a declaration that his use of the Garcia photograph was protected by fair use.

This is where Fairey started the deceptions which have now come to light. The AP claimed that he used a close-up shot of Obama. Shepard claimed that he used a different picture from the same event – one that portrayed both Obama and George Clooney. Almost immediately, however, Daryl Lang overlayed the various pictures on top of each other, showing that while there were significant differences between the “Hope” image and the Clooney picture, the close-up was a .Ěý Despite this, Shepard maintained his version of events, until, presumably, pressure applied during discovery forced his hand. In his statement, Shepard claimed it was an innocent mistake, but that to cover it up he destroyed evidence and gave fabricated evidence to his counsel for production. The AP, in their Oct. 20 , dispute this and maintain deliberate deception. After all, who misremembers cropping out George Clooney?

Why did Fairey do this? The substance of the case relies upon fair use; exactly which of two very similar photographs he used seems a little besides the point. Either it was (originally) an honest mistake, or he thought that the Clooney photograph provided the basis for a stronger fair use argument. One of the statutory considerations for a fair use defence is the amount of the original work used; while the close-up photograph was used almost in its entirety, the Clooney photograph would have required substantial cropping (and other modifications) to produce the “Hope” image.

No court appreciates being lied to, and Fairey's deceptions risk overshadowing the fair use argument. Opinions on the strength of this argument are .Ěý Since the degree of transformation has arguably been the central question in fair use arguments. Some suggest that because the “Hope” image contained no commentary on the original photograph, it is not transformative in purpose, and so not protected by fair use; or that, simply, changing the colours of a photograph is not sufficiently creatively transformative.

I should admit that I believe in giving fair use a wide ambit, and hope that Shepard wins this case. The transformative nature of the “Hope” image can be seen from the effect it has had, from its immense popularity and impact. It became iconic of Obama's historic presidential campaign and has spread around the globe. The original photograph did not – could not – do that. Does that not in and of itself point to a profound transformation?

That being said, I find Fairey difficult to view as a hero of copyright reform, as some seem to. Despite his own liberal use of the work of others, Fairey didn't like it when Baxter Orr slapped a SARS mask on the OBEY Giant. This parody didn't seem like fair use to Fairey, .

Legal squabbles aside, Fairey also raises some difficult ethical questions about the scope and values of copyright. The decontextualization of politically charged art and photography can fundamentally change the impact of a work, as Ed Nachtreib observes regarding (without acknowledgement or credit).

Mark Vallen has put together that highlights his appropriation of images used in political struggles from around the world (Jamie O'Shea posted a reply to this criticism ; Brian Sherwin's rounds out the debate). Do (relatively) privileged artists from wealthy nations have any ethical (if not legal) obligation to marginalized artists? Where are the lines between fair use, plagiarism, and cultural appropriation?

The immediate future of the litigation is uncertain, and the harm done by Fairey to his own case remains to be seen. Although they have not done so yet, his counsel will almost certainly withdraw, with Anthony Falzone “at the appropriate time.”Ěý Just to keep things interesting, , disputing both AP's ownership of the copyright and Fairey's fair use argument.Ěý The case will certainly continue to be closely watched by artists, copyright commentators, and Fairey's supporters and detractors. I suspect that Fairey will ultimately emerge from all this relatively unscathed, however; between a at the Boston Institute of Contemporary Art, designing for Saks Fifth Avenue, and a with Levis jeans, the “world renowned street artist” is at the peak of his career to date.

Ěý

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