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    Michael Geist's Blog

    Ontario Court Rejects U.S. Government Demand for Full Access to Megaupload Servers Seized in Canada

    Many readers will recall that nearly one year ago, the U.S. government launched a global takedown of Megaupload.com, with arrests of the leading executives in New Zealand and the execution of search warrants in nine countries. Canada was among the list of participating countries as the action included seizure of Megaupload.com servers located here. While the failed attempt (thus far) to extradite Megaupload mogul Kim Dotcom to the U.S. has attracted the lion share of attention, the U.S. government has quietly been working to obtain access to all the data stored on seized computers in other jurisdictions.

    Last week, an Ontario court rejected a request to send mirror-imaged copies of 32 computer servers to authorities in the U.S., indicating that a more refined order is needed. Megaupload did not contest the seizure of the computers. It did argue, however, "that there is an enormous volume of information on the servers and that sending mirror image copies of all of this data would be overly broad, particularly in light of the scantiness of the evidence connecting these servers to the crimes alleged by the American prosecutors." The company added that the volume of data on the 32 servers was equivalent to 100 laptop computers and that a review of the content by the court was appropriate.

    In response, the judge asked the two parties to refine the proposed order by limiting what is disclosed to what is relevant to the case. The conclusion states:

    the appropriate balance of the state interest in gathering evidence and privacy interests in information can be struck by an order that the servers be brought before the court pursuant to s.15 (2) so that the court can make an order refining what is to be sent. By this, I do not mean that at this stage the servers must physically be delivered to the courthouse. The application for a sending order is adjourned without a fixed return date, returnable on 7 days’ notice. If counsel are unable to agree as to how the scope of relevant material is to be defined then the matter may be brought back before a judge of this court for determination of that issue.
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    Government Caves to Lobbying Pressure on Anti-Spam Legislation

    Canada's anti-spam legislation was back in the news last week as the government unveiled revised regulations that may allow for the law to finally take effect next year. Canada is one of the only developed economies in the world without an anti-spam law and lengthy delays have created considerable uncertainty.

    My weekly technology law column (Toronto Star version, homepage version) notes that calls for Canadian anti-spam legislation date back to 2005, when a national task force recommended enacting laws to target spam, spyware, and other online harms (I was a member of the task force). The government passed the anti-spam law in December 2010, with many expecting a quick introduction of the accompanying regulations that would allow the law to take effect. After business groups criticized draft regulations released in June 2011, however, the government hit the pause button, leaving the law in limbo.


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    Courts Adopt Aggressive Approach in Cross-Border Internet Jurisdiction Cases

    In a world where data now moves effortlessly between computers on the Internet without regard for geographic borders, is the appearance of a website on a computer screen sufficient for a court to claim that a trademark has been used in the country? Is the use of a computer server enough to assert jurisdiction over a non-resident?  My weekly technology law column (Toronto Star version, homepage version) notes that two recent cross-border cases - one Canadian and one U.S. which both pitted a U.S. company against a Canadian individual - found that it is.

    The Canadian case involved a trade-mark dispute over the mark VRBO. Martin Hrdlicka, a Toronto resident, registered the mark in Canada in 2009. Just over a year later, Homeaway.com, a U.S. company that owns the popular VRBO.com site, sought to expunge the trade-mark on the grounds that Hrdlicka was not entitled to register the mark and had no intent to use it.

    Homeaway.com's legal challenge was that the company had no operations in Canada, though many Canadians may have accessed its U.S.-based website. Trade-mark law requires some use of the mark in Canada, yet the "use" in this case was largely confined to the availability of the VRBO website on computer screens.

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    Canadian Government Unveils Big Loopholes in Anti-Spam Regulations

    Industry Canada unveiled long-awaited revised anti-spam regulations on Friday for the Canadian Anti-Spam Law. The regulations are in draft form and comments can be submitted to the government until February 3rd. Given the intense lobbying by business groups to water down the legislation passed in 2010 and the initial draft 2011 regulations, it comes as little surprise to find that the proposed regulations include several significant loopholes and exceptions that undermine the effectiveness of the law.  The key new regulations include:

    third party referrals: the regulations include a broad new exception for third party referrals that will allow businesses to send commercial electronic messages without consent based merely on a referral from a third party. This issue was hotly debated when the bill was being drafted and, at the time, the government rejected claims that such an exception was warranted.  In the face of intense lobbying, however, the opt-in approach to electronic marketing is being dropped and replaced by a system that allows for unsolicited commercial electronic messages based on third party referrals.



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    Crystal Ball Gazing at the Year Ahead in Tech Law and Policy

    Given that few would have predicted that Internet protests last year would have led to the defeat or delay of legislation in the United States (the Stop Online Piracy Act) and Canada (Internet surveillance legislation) as well as spell the end for the Anti-Counterfeiting Trade Agreement in Europe, a new round of predictions for what lies ahead amounts to little more than guesswork. With that caveat in mind, my weekly technology law column (homepage version, Toronto Star version) provides a month-by-month look at what 2013 may have in store for technology law and policy.

    January. The government opens the New Year by releasing proposed anti-spam regulations with promise that the long-delayed law will take effect by 2014.  The regulations leave no one satisfied as they water down the law with a host of new exceptions and exclusions that limit requirements for businesses to obtain consent before sending unsolicited marketing materials.



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    New CIHR Open Access Policy Takes Effect

    The Canadian Institutes of Health Research have launched a new open access policy that took effect on January 1st.  The new policy requires CIHR funded researchers to make their peer-reviewed publications freely available within 12 months of publication. Moreover, researchers are now required to deposit certain data immediately upon publication of the research results. The new policy forces CIHR-funded researchers to publish in open access journals or ensure that their journal of choice will allow for open access post-publication.
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    Faulkner, Hesse Lead Public Domain Day 2013

    Wallace McLean has posted his annual celebration of public domain day, listing dozens of authors whose work entered into the public domain in Canada on New Year's Day. Notable names this year include Nobel Prize winners William Faulkner and Herman Hesse as well as  poet e.e. cummings. The list is particularly notable this year as Canada is participating in the Trans Pacific Partnership negotiations, which include U.S. proposals to extend the term of copyright in Canada to life of the author plus 70 years (from the current life plus 50).  If adopted, the change would mean that no new works would enter the Canadian public domain for two decades.
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    The Letters of the Law: The Year in Tech Law from A to Z

    From the remarkable battle over the Stop Online Piracy Act to the massive public backlash against Internet surveillance in Canada, law and technology issues garnered headlines all year long. A look back at 2012 from A to Z:

    A is for Astral, the Canadian broadcasting giant that was to be sold to Bell Media for over $3 billion. The CRTC blocked the sale on the grounds that the companies failed to demonstrate the transaction was in the public interest.

    B is for Jean-Pierre Blais, the newly appointed chair of the Canadian Radio-television and Telecommunications Commission. Blais surprised the industry by adopting a strong pro-consumer approach during his first months on the job.

    C is for the Copyright Modernization Act, the copyright reform bill that received royal assent in June 2012.

    D is for Dean Del Mastro, the Peterborough Member of Parliament who raised the spectre of regulating online anonymity.

    E is for the European Parliament, which voted overwhelmingly to reject the Anti-Counterfeiting Trade Agreement after hundreds of thousands of Europeans protested against it.

    F is for FreeDominion.com, an online chat site that defeated a claim of copyright infringement involving the posting of portions of newspaper articles.

    G is for GeoCoder, a small Ottawa company that created a crowd-sourced database of Canadian postal codes. Canada Post objected to the database, filing a copyright infringement lawsuit.

    H is for the U.S. Department of Homeland Security, which seized bodog.com, a domain name owned by Canadian online gambling tycoon Calvin Ayre.

    I is for Industry Minister Christian Paradis, who failed to unveil a digital economy strategy, despite a commitment to do so by year-end.

    J is for Jones v. Tsige, a landmark Ontario Court of Appeal decision that recognized a new tort for invasion of privacy.

    K is for Keatley Surveying v. Teranet, a proposed class action lawsuit involving copyright claims over land surveys.

    L is for levies on microSD cards. After a copyright collective asked the Copyright Board of Canada to impose new fees on the cards, the government issued a regulation effectively blocking the request.

    M is for McMaster University, one of several Canadian universities that were hit by security breaches.

    N is for Nexopia, a Canadian social media service that was found to have violated privacy laws following a lengthy investigation by the Privacy Commissioner of Canada.

    O is for an open textbook initiative launched by the British Columbia government that will support the creation of dozens of new freely available online textbooks.

    P is for the constitutionality of privacy legislation, which was thrown into doubt in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), an Alberta Court of Appeal decision.
     
    Q is for the Queen v. Cole, in which the Supreme Court confirmed that privacy rights survive in the workplace.

    R is for Rogers v. SOCAN, one of five copyright cases released by the Supreme Court in July 2012 that shook up the Canadian copyright landscape.

    S is for the Stop Online Piracy Act, the controversial U.S. legislation that sparked global protests including a Wikipedia blackout.

    T is for TellVicEverything, the grassroots Twitter campaign protesting against Canadian Internet surveillance legislation.

    U is for Untied.com, a gripe site about United Airlines run by Jeremy Cooperstock, a McGill professor. United demanded that Cooperstock take the site down due to trademark and copyright claims.

    V is for Voltage Pictures, which launched proceedings to obtain personal information on thousands of Canadian Internet users alleged to have downloaded its films.

    W is for a wireless code of conduct, which the major wireless carriers asked the CRTC to establish after several provinces moved to create provincial codes.

    X is for dot-xbox, one of thousands of proposed new domain name extensions.

    Y is for Yelp, the review site that hosted criticisms of an Ottawa restaurant that ultimately led to a criminal libel conviction after the restaurant owner sought revenge for the negative review.

    Z is for Judge Russell Zinn, a federal court judge who confirmed that the patent for Viagra was invalid days after the Supreme Court voided the patent for failing to provide sufficient disclosure.
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    UK To Introduce Wide Range of Copyright Exceptions

    The UK government has announced plans to introduce a wide range of copyright exceptions. The plan includes a new private copying right that will permit personal copying of content onto any medium (including personal cloud storage) for personal use. The personal copying right will not require further payment or a levy system. Canada enacted a similar reform this year, though the levy remains for copying of sound recordings onto some media. The UK reforms will also include a fair dealing exception for non-commercial use of materials in teaching. The summary of UK reforms include:

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    The Tax-Free Six Step Approach to a Digital Economy Strategy

    Several months ago in a speech to the Economic Club of Canada, Industry Minister Christian Paradis promised to unveil a Canadian digital economy strategy by the end of the year. Unless there is a late December surprise, however, 2012 will end in the same manner as every other year - with Canada as one of the only developed economies without a clear plan for success in the online environment.

    The digital economy strategy file - dubbed the Penske file due to years of "work" with no results - now stands an unequivocal failure. Despite a public consultation on the issue and numerous models to emulate, the government has puzzlingly been unable to develop a coherent vision for Canada’s digital future.

    The government could have pointed to any number of developments - copyright reform, anti-spam legislation, research tax credit changes, a pro-consumer approach at the Canadian Radio-television and Telecommunications Commission, the forthcoming spectrum auction, and reversal of the hated Internet billing dispute - as evidence that it has been active on the issue. Yet without a clear map for the future, the efforts are understandably perceived to be a policy mish-mash without a clear target.

    How to fix the digital economy strategy mess in a fiscal environment where there is little, if any, money available to pay for it?  My weekly technology law column (Toronto Star version, homepage version) points to a tax-free digital economy strategy that would have six components.


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