The right to copy belongs solely to the copyright holder. There is no caveat on that right except fair use. The right to make one copy, for you, for someone else, for throwing in the garbage, for anything, is a right solely vested in the copyright holder.
There is no law against distribution. If there were, there would be no First Sale doctrine, because only the copyright holder would be able to sell or give away a copyrighted work. Anyone who possesses a copyrighted work can sell it or give it away (in general). If copyright was distroright, then you would never be able to sell your books or your cds to anyone, or even give them away. But that would be stupid. You simply cannot make a duplicate of a copyrighted work, for any purpose.
Truly private copying, like putting songs from a CD I own on an MP3 player that I own is what I'd like to stick around, but from the what I'm reading it looks like they're not out to make the copyright holder omnipotent.... Distributing copyrighted material without consequences was on borrowed time anyway.
I agree with your sentiments. The problem is that the private copying levy scheme is somewhat "broken." The Federal Court of Appeal just said that the Copyright Board cannot apply the levy to portable music devices, because that's outside the scope of the Act. So now that the levy can't be expanded to these new means of music storage, something will _have_ to change. There's just no predicting at all what will happen to the private copying exception. It may disappear entirely, but it will probably radically change in some way.
And I have to imagine that it will expressly not apply to downloading from the net, but you are right, that was on borrowed time. The exception for downloading, if it actually exists, is a fluke of the wording of that section of the Act, anyway. It was never intended.
The way I see it, though, it's not as if we, the average person, ever needed legal permission to privately copy things for ourselves anyway. People alwayd made mix tapes and cds. It was infringement, but unenforceable infringement, and that's the way it always will be. The private copying levy was just a way to lift money from all of our pockets for something that, culturally speaking at least, was never wrong.
Despite the cheery headline, there are still some lamentable changes being proposed. Chiefly, protection for TPMs (Technological Protections Measures, or DRM) in the same vein as the DMCA are being sought, because, you know, they worked so well in chilling innovation and fostering anti-competitive practices in the USA. Reverse-engineering and circumvention of protection measures will be illegal, unless not for the purpose of facilitating infringement, but that's the kind of purpose that can only be determined after a lengthy trial...
And the "notice and takedown" provison is being avoided, but a "notice and notice" provision is being sought, which is slightly less problematic (it does not require immediate removal of the allegedly infringing material) but there are still provisions being sought that require an ISP to facilitate the process of finding and suing potential infringers.
The gov't clearly wants to restrict the definition of "publicly available" material on the internet, and expand the licensing agreement between educational institutions and content providers (read: more money flows from students to copyright holders). If you are a private individual and not a student, there is to date no mention of how you might legally copy information available on the internet.
And finally, there is no indication yet on the direction the gov't wants to go with our oft-cherised "private copying" right, which currently may or may not apply to downloading music onto your computer. (No, it is not clearly legal in Canada, despite what newspapers and other slashdot posters say. It's just very hard to identify and sue infringers.)
A reasonable proposal, I would have to say, but one impossible to implement in the Anglo, Canadian, or American systems because of their foundation on individual rights. Such a severe restriction on an individual's, _or his representative's_, ability to address the people who are presiding over him would never, ever fly. Any law declaring that restriction would die a very quick death.
Incorrect usages, like myths, do not gain legitimacy through popularity. They remain wrong, however common.
I don't disagree that the IOC exercises an iron grip of control. I kindly suggest you take criticism and correction with a bit of aplomb, and learn from the experience. It's up to you, really.
I appreciate what you're saying, xtal. It would seem nice, fair, and equitable if your proposition was true. But there's no requirement under the law for this kind of compensation.
The test for reasonability is clear in the case law, and it has two main prongs: length of time and specific knowledge restricted (as I said above, a contract can bar using specific knowledge, but not usually general expertise).
While what you propose might be nice, it's not a part of the legal test in Canada or the UK.
That doesn't mean that such clauses are not legally enforceable in Canada, or in the UK. There's a solid foundation of case law supporting the validity of non-competition clauses in both countries. Put very simply, the restrictions must be for a reasonably limited time, and must restrict using the specific knowledge gained from the former employer, but typically not restrict a person from using their general expertise in the area of research/development.
The fact that your former employer dropped the suit could mean a lot of things, such as: they didn't think it was worth following through, even if they thought they could win; or, they realized there was a good chance a judge would find your non-competition clause to be unreasonable.
But that doesn't mean it can't be done at all. These kinds of contracts do exist and may be legally enforceable.
In Canada this falls under the fuzzy area of law known as Confidential Business Information, which is kind of a mishmash of contract law and common low, adhoc, intellectual property law. The courts have generally imposed a fuzzy requirement of "reasonableness" on so-called Do Not Compete clauses in contracts, meaning that
(a) the length of time that one cannot work for a competitor must be reasonable, and
(b) the employee can only be blocked from doing very similar work, or work that would involve using the specific information that his former employer held in secret. This becomes a question of whether the employee will be using his or her general expertise of the discipline involved, or his or her specific knowledge of her ex-employer's research and development.
I'm sorry, Chess, but you're referring to the same case as Saucepan, and the judge did not rule that uploading is legal. He expressed that it was similar to placing a photocopying machine in a library, yes, in an allusion to a recent Supreme Court of Canada case (CCH vs. Law Society of Upper Canada) but this opinion was purely obiter dicta, meaning that it does not have binding force. This case was tossed by the judge on evidentiary merits, or the lack thereof, so no new legal precedent has been set.
At present, the law still suggests that uploading is a violation of copyright with no exemption under the Private Copying provision.
Point 1 redux Also, the federal privacy act, PIPEDA. But since you said "FOIP", I just assumed you were Albertan and so I only mentioned the provincial act, PIPA.
Point 1 FOIP only regulates government bodies. You're thinking of the Personal Information Protection Act or PIPA.
Point 2 No. The legislation is very specifically worded. You are only exempted from infringement when you make copies for yourself. Any kind of uploading would be considered infringement. The Copyright Board of Canada agrees with this interpretation. The tariff was never designed to address file-sharing. In addition, file-sharing does not require you to buy blank CDs.
Point 3 The Record Industry should die a horrible, horrible death.
Point 4 Music recroding execs are primarily interested in ways they can sell music online, while maintaining control over the end product, and without diminishing their revenue. To us, it may be a sort of holy grail, but it won't be implemented in a way that benefits us, the consumer, all that much. At least, that's what seems to be happening so far.
In many countries around the world, including Canada, there is a requirement of "use" of the patent for it to remain valid. If use it not shown, another party may apply to have the patent struck out. I don't know if this is included in American law, but considering that it's a requirement of TRIPs (Trade Related matters on Intellectual Property), a binding agreement of the WTO, I imagine it would have to be part of US law by now. And yet I never hear about that particular requirement... and I don't know why, since I am not a patent lawyer or agent.
I direct you a legal analysis of the situation. Long story short: downloading is probably legal, uploading is not, and this includes sharing through P2P apps.
Something which is not discussed in that analysis is that it is technically difficult for collective societies to sue uploaders in Canada as opposed to in the US, because privacy law more firmly protects the identities of ISP customers.
Copyright infringement cases concerning FTP servers have created a strong likelihood of #1 being the case. FTP operators have attempted to avail themselves of the argument that they are not in control of the server when a person sends it a request and takes what they wish from the server, and courts have consistently denied this argument.
At the end of the day, the sharer is still the one who installed the p2p app and ran the program. They actively made the files available to the public, and that is one reason they would be liable. At critical points in the process, the sharer was in care and control of the computer.
Exceptions have been made for copyright infringement for ISPs under Canadian law. The exception is specific only to ISPs, and is very narrow. The rationale is that they are entirely passive transmitters of data. A file sharer would not be a passive transmitter of copyrighted data, because the copies originate from them. The Copyright Board has made it clear that if the data originates from a source, that source is not a passive transmitter and not exempted from infringement. Keep in mind that without this expressly stated exception, even ISPs would be liable for infringement, and it's very difficult to say that they play any active role in a copying process that simply passes through their network.
Finally, I'd like to point out that even if we disregard this specific issue of control of the copying process, a file sharer would _still_ be liable under the act. My colleague Ryan Black first pointed this out: every mp3 on a sharer's hard drive was either downloaded by him or ripped from another source. All of those copies, then, are protected under s. 80 only so long as they are for private use only. The moment one of those mp3s is used to make another copy for another person (regardless of who technically made the copy), it is no longer for private use only. Therefore, each mp3 on a hard drive that is downloaded by someone else becomes an infringing copy itself, because s. 80 no longer protects it.
I appreciate your opinion, and tip my hat to you for pointing out practicalities of copyright infringement lawsuits against Canadians.
It was beyond the scope of our analysis to consider those issues. We're concerned, in this article at least, purely with a legal analysis of liability of file-sharers.
So, I think the term "flawed" is not particuarly accurate. That aside, we appreciate your enlightening perspective, Robert.
I submitted an article two weeks ago explaining why this article is an erroneous analysis of s.80 of the Copyright Act, and it got rejected. And then this happens. Listen, Canadians, don't go using your p2p apps and thinking you are immune from lawsuit, you are liable for copyright infringment if you share files.
To wit: a fellow law student and I have written an analysis of s. 80 of the Copyright Act and we've concluded that one can download music safely under the Private Copying provision, but no one can share or upload files without infringing on copyright.
In a nutshell, Private Copying allows anyone to make a copy of a song purely for their own use. As you probably know, when you share files and someone downloads from you, what actually happens is that their computer makes a request and your computer actually sends the file to them. Thus, you're copying for someone else's use and infringing. It doesn't matter if you didn't realize that's what happens, either... intent is not required for infringement.
The upside is that you can accept copies from other people (ie. download) all you want. Although there might be an issue of contributory infringement to worry about... I won't go into analyzing that, since so far the record companies are only suing uploaders.
I've recently confirmed this analysis with an IP law professor at my university, so I'm pretty damn sure of it. So, please, let all your awesome readers know the truth. Downloading cool, uploading/sharing not. I guess the situation still better than nothing.
Crash courses in bio for coders? Sounds cool, but how about the same thing for geneticists and biochemists, who want to learn to code? Here's a question: what do yo uthink would be more difficult, giving coders a quick, intensive lesson in biology to get them up to snuff for the sort of thing we're discussing, or trying to teach someone like me (a non-coding geneticist) how to code appropriately, as quickly as possible?
Slashdot Mirror
For the last time, you are wrong.
The right to copy belongs solely to the copyright holder. There is no caveat on that right except fair use. The right to make one copy, for you, for someone else, for throwing in the garbage, for anything, is a right solely vested in the copyright holder.
There is no law against distribution. If there were, there would be no First Sale doctrine, because only the copyright holder would be able to sell or give away a copyrighted work. Anyone who possesses a copyrighted work can sell it or give it away (in general). If copyright was distroright, then you would never be able to sell your books or your cds to anyone, or even give them away. But that would be stupid. You simply cannot make a duplicate of a copyrighted work, for any purpose.
Unless it falls under fair use.
Truly private copying, like putting songs from a CD I own on an MP3 player that I own is what I'd like to stick around, but from the what I'm reading it looks like they're not out to make the copyright holder omnipotent.... Distributing copyrighted material without consequences was on borrowed time anyway.
I agree with your sentiments. The problem is that the private copying levy scheme is somewhat "broken." The Federal Court of Appeal just said that the Copyright Board cannot apply the levy to portable music devices, because that's outside the scope of the Act. So now that the levy can't be expanded to these new means of music storage, something will _have_ to change. There's just no predicting at all what will happen to the private copying exception. It may disappear entirely, but it will probably radically change in some way.
And I have to imagine that it will expressly not apply to downloading from the net, but you are right, that was on borrowed time. The exception for downloading, if it actually exists, is a fluke of the wording of that section of the Act, anyway. It was never intended.
The way I see it, though, it's not as if we, the average person, ever needed legal permission to privately copy things for ourselves anyway. People alwayd made mix tapes and cds. It was infringement, but unenforceable infringement, and that's the way it always will be. The private copying levy was just a way to lift money from all of our pockets for something that, culturally speaking at least, was never wrong.
Despite the cheery headline, there are still some lamentable changes being proposed. Chiefly, protection for TPMs (Technological Protections Measures, or DRM) in the same vein as the DMCA are being sought, because, you know, they worked so well in chilling innovation and fostering anti-competitive practices in the USA. Reverse-engineering and circumvention of protection measures will be illegal, unless not for the purpose of facilitating infringement, but that's the kind of purpose that can only be determined after a lengthy trial...
And the "notice and takedown" provison is being avoided, but a "notice and notice" provision is being sought, which is slightly less problematic (it does not require immediate removal of the allegedly infringing material) but there are still provisions being sought that require an ISP to facilitate the process of finding and suing potential infringers.
The gov't clearly wants to restrict the definition of "publicly available" material on the internet, and expand the licensing agreement between educational institutions and content providers (read: more money flows from students to copyright holders). If you are a private individual and not a student, there is to date no mention of how you might legally copy information available on the internet.
And finally, there is no indication yet on the direction the gov't wants to go with our oft-cherised "private copying" right, which currently may or may not apply to downloading music onto your computer. (No, it is not clearly legal in Canada, despite what newspapers and other slashdot posters say. It's just very hard to identify and sue infringers.)
So, there is all that to consider.
A reasonable proposal, I would have to say, but one impossible to implement in the Anglo, Canadian, or American systems because of their foundation on individual rights. Such a severe restriction on an individual's, _or his representative's_, ability to address the people who are presiding over him would never, ever fly. Any law declaring that restriction would die a very quick death.
Well done, and good job showing just how useful that book can be. :)
Incorrect usages, like myths, do not gain legitimacy through popularity. They remain wrong, however common.
I don't disagree that the IOC exercises an iron grip of control. I kindly suggest you take criticism and correction with a bit of aplomb, and learn from the experience. It's up to you, really.
Fascism is a political system which espouses the State as the focus of the system, above individuals. It is authoritarian, but so are a lot of things.
I do not think that word means what you think it means.
I appreciate what you're saying, xtal. It would seem nice, fair, and equitable if your proposition was true. But there's no requirement under the law for this kind of compensation.
The test for reasonability is clear in the case law, and it has two main prongs: length of time and specific knowledge restricted (as I said above, a contract can bar using specific knowledge, but not usually general expertise).
While what you propose might be nice, it's not a part of the legal test in Canada or the UK.
That doesn't mean that such clauses are not legally enforceable in Canada, or in the UK. There's a solid foundation of case law supporting the validity of non-competition clauses in both countries. Put very simply, the restrictions must be for a reasonably limited time, and must restrict using the specific knowledge gained from the former employer, but typically not restrict a person from using their general expertise in the area of research/development.
The fact that your former employer dropped the suit could mean a lot of things, such as: they didn't think it was worth following through, even if they thought they could win; or, they realized there was a good chance a judge would find your non-competition clause to be unreasonable.
But that doesn't mean it can't be done at all. These kinds of contracts do exist and may be legally enforceable.
In Canada this falls under the fuzzy area of law known as Confidential Business Information, which is kind of a mishmash of contract law and common low, adhoc, intellectual property law. The courts have generally imposed a fuzzy requirement of "reasonableness" on so-called Do Not Compete clauses in contracts, meaning that
(a) the length of time that one cannot work for a competitor must be reasonable, and
(b) the employee can only be blocked from doing very similar work, or work that would involve using the specific information that his former employer held in secret. This becomes a question of whether the employee will be using his or her general expertise of the discipline involved, or his or her specific knowledge of her ex-employer's research and development.
As I said, it's a fuzzy determination.
I'm sorry, Chess, but you're referring to the same case as Saucepan, and the judge did not rule that uploading is legal. He expressed that it was similar to placing a photocopying machine in a library, yes, in an allusion to a recent Supreme Court of Canada case (CCH vs. Law Society of Upper Canada) but this opinion was purely obiter dicta, meaning that it does not have binding force. This case was tossed by the judge on evidentiary merits, or the lack thereof, so no new legal precedent has been set.
At present, the law still suggests that uploading is a violation of copyright with no exemption under the Private Copying provision.
Point 1 redux Also, the federal privacy act, PIPEDA. But since you said "FOIP", I just assumed you were Albertan and so I only mentioned the provincial act, PIPA.
Point 1 FOIP only regulates government bodies. You're thinking of the Personal Information Protection Act or PIPA.
Point 2 No. The legislation is very specifically worded. You are only exempted from infringement when you make copies for yourself. Any kind of uploading would be considered infringement. The Copyright Board of Canada agrees with this interpretation. The tariff was never designed to address file-sharing. In addition, file-sharing does not require you to buy blank CDs.
Point 3 The Record Industry should die a horrible, horrible death.
Point 4 Music recroding execs are primarily interested in ways they can sell music online, while maintaining control over the end product, and without diminishing their revenue. To us, it may be a sort of holy grail, but it won't be implemented in a way that benefits us, the consumer, all that much. At least, that's what seems to be happening so far.
In many countries around the world, including Canada, there is a requirement of "use" of the patent for it to remain valid. If use it not shown, another party may apply to have the patent struck out. I don't know if this is included in American law, but considering that it's a requirement of TRIPs (Trade Related matters on Intellectual Property), a binding agreement of the WTO, I imagine it would have to be part of US law by now. And yet I never hear about that particular requirement... and I don't know why, since I am not a patent lawyer or agent.
I direct you a legal analysis of the situation. Long story short: downloading is probably legal, uploading is not, and this includes sharing through P2P apps.
Something which is not discussed in that analysis is that it is technically difficult for collective societies to sue uploaders in Canada as opposed to in the US, because privacy law more firmly protects the identities of ISP customers.
Copyright infringement cases concerning FTP servers have created a strong likelihood of #1 being the case. FTP operators have attempted to avail themselves of the argument that they are not in control of the server when a person sends it a request and takes what they wish from the server, and courts have consistently denied this argument.
At the end of the day, the sharer is still the one who installed the p2p app and ran the program. They actively made the files available to the public, and that is one reason they would be liable. At critical points in the process, the sharer was in care and control of the computer.
Exceptions have been made for copyright infringement for ISPs under Canadian law. The exception is specific only to ISPs, and is very narrow. The rationale is that they are entirely passive transmitters of data. A file sharer would not be a passive transmitter of copyrighted data, because the copies originate from them. The Copyright Board has made it clear that if the data originates from a source, that source is not a passive transmitter and not exempted from infringement. Keep in mind that without this expressly stated exception, even ISPs would be liable for infringement, and it's very difficult to say that they play any active role in a copying process that simply passes through their network.
Finally, I'd like to point out that even if we disregard this specific issue of control of the copying process, a file sharer would _still_ be liable under the act. My colleague Ryan Black first pointed this out: every mp3 on a sharer's hard drive was either downloaded by him or ripped from another source. All of those copies, then, are protected under s. 80 only so long as they are for private use only. The moment one of those mp3s is used to make another copy for another person (regardless of who technically made the copy), it is no longer for private use only. Therefore, each mp3 on a hard drive that is downloaded by someone else becomes an infringing copy itself, because s. 80 no longer protects it.
I appreciate your opinion, and tip my hat to you for pointing out practicalities of copyright infringement lawsuits against Canadians.
It was beyond the scope of our analysis to consider those issues. We're concerned, in this article at least, purely with a legal analysis of liability of file-sharers.
So, I think the term "flawed" is not particuarly accurate. That aside, we appreciate your enlightening perspective, Robert.
I submitted an article two weeks ago explaining why this article is an erroneous analysis of s.80 of the Copyright Act, and it got rejected. And then this happens. Listen, Canadians, don't go using your p2p apps and thinking you are immune from lawsuit, you are liable for copyright infringment if you share files.
8 /2 2/1655233&mode=thread
To wit: a fellow law student and I have written an
analysis of s. 80 of the Copyright Act and we've
concluded that one can download music safely under the
Private Copying provision, but no one can share or
upload files without infringing on copyright.
In a nutshell, Private Copying allows anyone to make a
copy of a song purely for their own use. As you
probably know, when you share files and someone
downloads from you, what actually happens is that
their computer makes a request and your computer
actually sends the file to them. Thus, you're copying
for someone else's use and infringing. It doesn't
matter if you didn't realize that's what happens,
either... intent is not required for infringement.
The upside is that you can accept copies from other
people (ie. download) all you want. Although there
might be an issue of contributory infringement to
worry about... I won't go into analyzing that, since
so far the record companies are only suing uploaders.
The article can be found here:
http://grep.law.harvard.edu/article.pl?sid=03/0
I've recently confirmed this analysis with an IP law
professor at my university, so I'm pretty damn sure of
it. So, please, let all your awesome readers know the
truth. Downloading cool, uploading/sharing not. I
guess the situation still better than nothing.
File downloading is legal, sharing or uploading is not. It's that simple. See my analysis at greplaw for more info.
Crash courses in bio for coders? Sounds cool, but how about the same thing for geneticists and biochemists, who want to learn to code? Here's a question: what do yo uthink would be more difficult, giving coders a quick, intensive lesson in biology to get them up to snuff for the sort of thing we're discussing, or trying to teach someone like me (a non-coding geneticist) how to code appropriately, as quickly as possible?