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Going from being an addict to being straight is one of the hardest things to do, and in the end, it seems it was too much for Amy.

In January, Amy Winehouse’s husband, Blake Fielder-Civil said he was afraid Amy would be be dead before the summer unless she did something about her addictions.

Rehab Lyrics:

They tried to make me go to rehab but I said ‘no, no, no’
Yes I’ve been black but when I come back you’ll know know know
I ain’t got the time and if my daddy thinks I’m fine
He’s tried to make me go to rehab but I won’t go go go

I’d rather be at home with ray
I ain’t got seventy days
Cause there’s nothing
There’s nothing you can teach me
That I can’t learn from Mr Hathaway

I didn’t get a lot in class
But I know it don’t come in a shot glass

They tried to make me go to rehab but I said ‘no, no, no’
Yes I’ve been black but when I come back you’ll know know know
I ain’t got the time and if my daddy thinks I’m fine
He’s tried to make me go to rehab but I won’t go go go

The man said ‘why do you think you here’
I said ‘I got no idea
I’m gonna, I’m gonna lose my baby
so I always keep a bottle near’
He said ‘I just think you’re depressed,
this me, yeah baby, and the rest’

They tried to make me go to rehab but I said ‘no, no, no’
Yes I’ve been black but when I come back you’ll know know know

I don’t ever wanna drink again
I just ooh I just need a friend
I’m not gonna spend ten weeks
have everyone think I’m on the mend

It’s not just my pride
It’s just ’til these tears have dried

They tried to make me go to rehab but I said ‘no, no, no’
Yes I’ve been black but when I come back you’ll know know know
I ain’t got the time and if my daddy thinks I’m fine
He’s tried to make me go to rehab but I won’t go go go

Jon Newton – p2pnet

Then, in November, 2005, I wrote “But still very, very cool, nothing much has changed.” At the time, very few mainstream artist agreed with me. However, as far as I’m concerned it’s still all about sharing. And caring.

Anyhow, MIDI (Musical Instrument Digital Interface) has been online forever and these days, “virtually anyone can take a midi file and using a program such as Garage Band or Reason create a near studio quality rendition of their favorite song,” says -1-Lone_Eagle on slashdot.

“This opens up an interesting discussion, is a remixed midi file an original creation? Or is it simply a copied work with the rights belonging to the original author? Is it Piracy? What do you think?”

“So what do you think?…  At last, a singer with brains!”

That was my friend and p2pnet host Cliff Haerden at multibox.be over in Belgium. In a recent email, he was talking about Joss Stone, pointing to Dumpen Maar featuring a video of Stone singing the praises of sharing.

I did a story on it three years ago, but her message stands:

Interviewer: What do you think about piracy, about mp3, about the internet, about music?

Stone: I think it’s great.

Interviewer: Great?

Stone: Yeh. I love it. I think it’s brilliant, and I’ll tell you why. Music should be shared. I believe this is how music turned into like some crazy business. Now, the only part about music that I dislike is the business that’s attached to it. Now, if music is free, there’s no business. There is , however, “So I like it. I think that we should share it.There is, however, a Big Music organisation wholly dedicated to screwing, bluing and Tatooing as many music lovers as it can identify Led by functionaries Mitch Bainwol, and Cary Sherman (http://www.p2pnet.net/story/51072) Purporting to represent artists, it’s called the Recording Industry Association of America its entire raison d’être is to screw, as many music lovers as it can identify.

It’s OK. “If one person buys it, it’s totally cool. Burn it up. Share it with your friends. I don’t care. I don’t care how you hear it as long as you hear it; as long as you come to my show and have a great time and listen to the live show. It’s totally cool.

Interviewer: I think you are the first singer telling this story to me.

Stone: Yeh, because most people are, um, (”brainwashed”, from someone sitting beside her) yeah, they’ve been brainwashed – definitely, a perfect word for it.

Sharing is caring.

A while back, with UK singer Billy Bragg, I tried to start a site dedicated to putting artists and their fans together for their mutual benefit. It was called a2f2a — short for artists-to-fans-to-artists. It ultimately disintegrated, although what’s left of it is still online. What started it was the Featured Artists Coalition / Lily Allen Three Strikes and you’re Off the Net debacle, with Allen in the starring role, closely followed by the FAC.

“File sharing’s not okay for British music,” Allen had blogged in a post picked up by the mainstream media and trumpeted around the world. “We need to find new ways to help consumers access and buy music legally, but saying file sharing’s fine is not helping anyone — and definitely not helping British music,” she’d declared. “I want to get people working together to use new digital opportunities to encourage new artists.”

I’d posted that I’d definitely agree with the last part. It’s one of the reasons Billy and I started a2f2a.com. The other is, contrary to corporate music industry statements, online music fans would love to pay artists, as long as they know the money is going to them.

Now Stone, a UK soul singer who played Anne of Cleves, Henry VIII’s wife # 4 in The Tudors (right) series, has thrown herself into the file sharing menage telling the Press Association >>>

“She’s [Lily Allen] not going to win [the] fight [over downloads]. None of us will win that fight. So let’s just accept it and see it as something that can be beautiful and might change music for the better. It might sort the weeds from the flowers.”

Meanwhile, back then, Canadian singer Joni Mitchell declared >>>

“I’ve been screwed from the beginning. The deal that I got was just atrocious. I mean, it was like slave labor. And I’ve never really had a good deal in the business. I hope it all goes down the crapper. It’s top-heavy, it’s wasteful. It’s an insane business.”

Now, this is all calculated music. It’s calculated for sales, it’s sonically calculated, it’s rudely calculated. I’m ashamed to be a part of the music business. You know, I just think it’s a cesspool.”

She was referring to the corporate part, of course.

As to the rest, the online P2P sharing communities aren’t going away.

In another post check out Justin Frankel’s NinJam. It doesn’t support MIDI yet, but Frankel says it will.

Jon Newton – p2pnet

p2pnet view P2P | Freedom | Entertainment |

The Senate Judiciary Committee is scheduled to mark up tomorrow (Thursday) S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011. In advance of that session, 13 groups today sent a letter to Judiciary Committee Chairman Patrick Leahy (D-VT) and senior committee Republican Charles Grassley (R-IA) outlining their concerns about the bill.

Primary among the objections are:

1) The bill continues to allow Internet Service Providers to interfere with Doman Name look up services (DNS). “We continue to believe that such a provision would be ineffective and runs contrary to the US government’s commitment to advancing a single, global Internet,” the groups said.

2) The inclusion of “information local tools,” as subject to the bill’s provisions, “makes nearly every actor on the Internet potentially subject to enforcement orders under the bill, raising new policy questions regarding government interference with online activity and speech.”

The text of the letter is here.

Art Brodsky – Communications Director
http://www.publicknowledge.org

(202) 861-0020 ext 103 (o) • (301) 908-7715 (c)
1818 N St., NW Suite 410, Washington, D.C. 20036

Thanks for that, Art!

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Even still, this is based on the flawed premise that ”making available” is some new infringement of copyright. The target selection for domain seizures can be empirically validated by the actual list of domains seized. This is the cost-efficient manner in which these dinosaurs are plundering arts, culture, privacy and freedom of speech. Extending copyright, retroactively expanding copyright, influencing copyright legislation and in some cases, simply writing the law for them.

See: New Zealand, Canada, Ireland, United Kingdom, France, Sweden, India, Spain and Australia.

Doesn’t that bother you? Amerikan corporate plutocracy is telling YOUR government what information you can access, and when, where, and how you can have access to it. Sure, there is infringing material mixed in, but if you think like the MAFIAA, then everything can be used to infringe. Let’s ban the harddrive, it could potentially be used to store copyright infringing material. The very nature of computer hardware is designed to make digital copies, either from scratch, or copied, and copied, and copied, and copied. The very essence of the digital age is distribution of knowledge in the form of text, voice, music and video.

Attempts to make “streaming”, as they are trying to define actual downloading, a felony can only be defined as a ridiculous stretch of authority. Firstly, there is no such thing as “streaming”. If you copy 10 files, each 100mb, from one drive to another, and can open the first copied file while the other 9 are being transferred, then that is streaming. This is why they are seizing the domains they are seizing. They cannot make a legal argument that merely linking to infringing material is in itself infringing, this again is “making available” and not an actual infringement. The MAFIAA knows millions and millions of internet users are violating their copyrights, they have no choice but to go after the intermediaries using unlawful means to set a “behavioral” precedent. “If nobody complains, they must be guilty”, is the impression they want. Hence, no adversarial hearings prior to the seizures. How dare anyone have a conflicting opinion on what is and is not infringing that is not in jack-boot lock-step compliance with MAFIAA bullshit! This also enforces the “view” that “streaming” is “making available” is a copyright infringement.

The reason the MAFIAA like their buzz-words is because they can make the leap of faith from streaming to broadcasting, which is a copyright violation. The biggest logic flaw in all of their arguments has been the lack of ability to actually show any proof that something was copied. Sure they can scrape IPs from a bittorrent stream, but have they proven in fact, the entire copyrighted material was even completely transferred? Have they proven the copied file was in fact an exact replication of the original in question? I won’t even bring up forensics and chain of custody when IFPI can simply walk into an ISP in Europe and demand harddrives from another of the ISP customers without due cause or legal backing. This, my comrades, is theft.

Rarely does a judge in the US courts question the validity of proof offered by the MAFIAA in litigation. The old “trust us, it must be happening, it’s just too haaaaaarrrrrdd to actually prove, your honor”. This is why the MAFIAA is going after the intermediaries. To attempt to make a “social” stigma stick, rather than a legal one. 3rd parties are easier to find, can be crushed in litigation, and more importantly, can be eliminated from the pool of competition.

What a great thing that is copyright. A monopolistic suspension of your actual rights for a copy privilege. Copyright is not a right, it is a Constitutional privilege originally designed to protect printers in the 18th century by suspending your inalienable rights for a government granted monopoly. This made sense when it took 1 week to print several books, not including binding and distribution. Today, I can write a book and distribute it the same day with infinite copies. So, if it used to take a long time to create and distribute, which is what I am under the impression the monopoly was created for, then how does extending copyright work? You can make works available faster, cheaper and in infinite supply, therefore copyright should be more restricted not extended. How does that improve the preservation of arts or culture?

Oh, piracy is killing the industry. Oh, we just had another record-breaking year of eye-popping profits, during a recession, war, global unrest and unemployment higher than since the great depression and Truman. It’s all about the grips, and wardrobe, the caterers, van drivers, make-up artists, SAG, SWG and all the other little guys that are losing their jobs because of piracy. You don’t really expect humanity to believe that shit do you? Everyone on that list got paid, you (MAFIAA) paid them, they are either salary and/or commission based, and were paid for whatever video/show/movie they worked. Then you got paid by the market placement in said video/show/movie by the highest bidder. Then you hocked your other crappy movies in unstoppable advertisements on purchased media. You got paid when the show aired on TV in broadcast/syndication/advertisement rights/kickbacks.

Movies used to be rated for 30 days years ago, nowadays movies are compared by “opening day” box office sales. So, after overinflating the price of a movie like Drive Angry with Nicholas Cage to the tune of 40 million usd, opening day was 36 million usd, and I am quite sure you made up the difference of 4 million after another day or so. This is a neat business model. Make a fucking shitty movie, slap a big name on it, give him 20 million for a couple of weeks work, have a local high school do the special effects for you, and bam, you get to pocket, what, 20-50 million? And that is not even counting DVD sales, when that window comes, and then the BluRay window, oh, and I forgot, the mandatory 30-day rental window.

The decision to switch from 30 days to opening day was simple. In the 21st Century, people can get information at the speed of light now. Shitty movies are ousted as shitty much more efficiently than in days of old. Box office sales for shitty movies drop dramatically once the word gets out, so instead of having the top 10 movies over 30 days, which would probably be a listing of movies well over 30 days old, have the top 10 movies opening weekend. Now that makes for a pretty chart. Hollywood’s answer? Fuck em, let’s make all movies shitty, then the chart will look even better. We can bang out a good one like Avatar or The Black Knight with an innovative storyline/script/RtB but only in the summer, when all the kids are out of school and are bugging their parents to take them to the theaters.

With decades and decades of customer abuse under your belts, the DRM, the rootlets, destruction of hackers you should have hired, the release windows, shitty 3D, legal shenanigans, bribes, creative accounting, overpaid CEOs, serious lack of legal alternatives and general assholedness towards consumers, I have to beg the question..

Who is the real pirate?

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The litigation has resulted in an agreement, sealed of course, between the RIAA and LimeWire, et al. The RIAA doesn’t want a precedent set that could potentially eliminate the ability to pursue the CEO of whatever new innovation comes along that the RIAA doesn’t like. MP3Tunes, OINK, IsoHUNT and others know what it feels like to innovate, and then be crushed by the legal might of dinosaur industry leaders who refuse to adapt their business model.

One interesting point that Mike Masnick of TechDirt constantly makes that is incredibly relevant is this; Has anti-piracy efforts improved sales? Very succinct and direct approach to this particular metric. ROI some businesses call it, return on investment. First there was Ireland rolling over like the French in WWII, spying on its’ internet customers at the behest of the MAFIAA, then HADOPI in France. Obviously this was forced on the French due to a celebrity polishing Sarkozy’s helmet, and not because it was even relevant, effective, useful or wanted by the French people. In fact, I think there were a few polls and demonstrations against it. And now look at what a shining light of proactive anti-piracy effectiveness in action. Sony spent more on R&D for BluRay DRM than they did on the security servers hosting the PlayStation Network. Think about that for a second, and you will realize where their priorities lie.

So, LimeWire lost. Another incentive for distributed technology. DNS is now under attack from DHS/ICE, which is not even in their mandate, and with the UN requesting the US release control over ICANN, public outcry about violations of constitutional rights, seizing domains that have been legally defined in a court of law in that country as, well, legal, not to omit placing defamatory accusations that over 80,000 sub-domain web sites were seized due to being CP related. Even if this even lasted minutes, instead of days, it should constitute actionable litigation against the US GOV.

Again, another reason to migrate to OpenDNS or other alternative that does not censor. The NSA said it best when they warned that the more you invade the privacy of others, the more measures they will take to inhibit your efforts. The more pressure that is put on centralized systems, will invariably force innovation away from it and more towards decentralized systems that cannot be affected. The internet sees censorship as a roadblock and simply routes around it.

And finally, TorrentFreak has a great article about bittorrent traffic increase reported by Sandvine, a Canadian-based broadband management company, amazingly NOT owned by the MAFIAA. It shows how impressive your 8-year litigation against LimeWire produced such an immense increase in physical and digital sales… oh wait, no it didn’t!  They all moved to bittorrent. And when it takes you 8 more years to litigate away bittorrent, there will be something else already waiting. Congratulations RIAA, one less mole, superb use of resources, and an incredible boost to your coven on artists. Oh wait!… the artists’ get nothing? The 105 million will go back into investing additional anti-piracy efforts and the artists get nothing?

Impressive, most impressive.

You know, mp3Tunes and GrooveShark started with less than 105 million. I bet you could have built a great Last.FM for that kinda money. Until then I will use AudioHijack and streamed free music in iTunes, and pay for ‘other’ services, like bandwidth, to access the buffet, instead of your little expensive continental breakfast.

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First off, the Copyright Review Board just recently made several exemptions, one which included the “jailbreaking” of iPhones by end users. Point in fact, declaring the device a purchased product, covered under first sale doctrine, and legal ownership of said device. When I was younger, my VCR broke, it was a minor issue, one of the rubber belts just broke. So I got several rubber bands and replaced the belt and the VCR worked fine. I also own a vehicle that I decided to run different tires and rims on it, other than what came from the factory when I purchased the vehicle.

How are these ownerships different? I own a PS3, actually, I went and bought one right after I heard about George Hotz and the ability of making Home Brew (copies of games authenticated with Geohot’s firmware, and if there was a significant interest in the file sharing world. What I found was incredibly easy. I got Geohot’s firmware file from usenet, watched the YouTube tutorial using a VPN, went thru it step by step, and had FTP access to the PS3’s HDD in less than an hour. But I am getting off-topic.

I don’t understand why I can change my own oil, add a better graphics card to my computer, and yet be unable to modify the operating system and hardware of a PS3 that I PURCHASED! This whole charade was kicked off when SONY found out the likes of the United States Air Force were using rooms of PS3s running Linux and linked in parallel creating supercomputer capabilities for fractions of the costs, and they wanted a cut.

Hilariously, in compliance with the “please upgrade” annoyance from SONY, the USAF promptly brought their supercomputer to a screeching halt, as the upgrade removed the functionality that supported the otherOS option of the PS3.

SONY apparently had plans to “enable” the functionality again, for a price, of course. Simple upgrade, thats all, nothing more, oh, and a big fat check, thanks. It’s amazing to see SONY put profits before human lives. How severe was the effect on the military upon removing this option? Were aircraft tracking systems in Alaska for the early warning systems affected?

SONY’s entire argument is that you are only licensed to use the equipment and may not circumvent the digital locks to re-enable functionality that was removed after you purchased it. It would be like the dealership coming to my house and removing the brakes from my brand new car, because it’s an “option”.

What they really don’t want is what I am seeing now in the file sharing world. An absolute abundance of games for the PS3, including zero day releases. They are large files, but the industry doesn’t understand anything about the internet and how it works. The music industry is in a big tizzy over their music being shared, awww, boo hoo, that is small potatoes, tiny files. The movie industry doesn’t realize that they are even worse off than they think. Movies in HD 720p high quality are only about 5Gb, an easy 15 minute download. PS3 games are even larger, closer to 16Gb and takes about an hour.

I bought it, its mine SONY. I learned how to FTP anything on or off of it, including installing Linux on a partition. I would not consider myself the only one that despises your anti-consumer tactics SONY.

Thanks George.

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The basic overview was that Jeffrey Clair for the U.S. Council, and Paul Clement, a prior solicitor general (can you say revolving door?) voiced their arguments based on Williams that allows them to circumvent violating the 7th Amendment concerning Statutory Damages Provision to excess. Mr Clair argued that Remittitur was not even an option that should be heard by the court, and that the excessive damages do not create a Constitutional issue.

Mr Clement, however, was much more colorful in framing the debate around the devastation the recording industry has suffered, and apparently it is all Joel’s fault. He completely side stepped the issue of performance rights violations and focused on the distribution angle. “It’s taking copyrighted work and putting it in the public domain”, he stated. He wrongly advised the court that ALL file sharing technology forces you to share a folder, thus making available.

One of the judges called him on this by asking, “is making available equate to distribution?” He quickly moved the argument over to Joel’s behavior being reprehensible and “we [RIAA] are devastated by file sharing distribution”, making it sound like the entire music industry’s woes are due to Joel downloading 30 songs. “We have technology that could prove distribution, your honor, but the defendant admitted his guilt, so that is proof enough”, “we can prove it, we just don’t know how many times the work in question was distributed”, he continued.

If you can prove it, then why can you not know how many times, and for which work was infringed upon? I would say you can’t. The EFF got to speak, a Ms Jule Aarons, who seemed scared shitless, again affirmed the defenses taken by Joel and others. Because Joel endured a civil trial, there was no jury, only during the damages portion of his trial was there a jury, and the EFF was not allowed to participate in education of the jury. Joel’s motion for fair use was denied, he was not allowed any witness, there was no proof provided by the plantiffs, and the EFF brief to the jury was denied because the plaintiffs argued that would be considered nullification.

Nesson spoke, what a beatnik, anyway, he started his 3 minutes quoting some obscure, irrelevant book, and then goes on to accuse the RIAA of “[they] articulate the statute as expansively as possible in their own interests”. That in 1909 Statutory Damages were introduced for commercial infringement ONLY, there was even a menu of specific infringements and specific damages for each. Even after the amendment in 1976, they changed the ranges of damages, removed the menu, and still maintained the target was commercial infringement, and not to bankrupt consumers. He compared willful file sharing to willful jaywalking.

It was good to actually sit thru the hearing and listen to these bright minds spew mindless drivel arguing that screwing over our customers with astronomical damage awards is just fine, nothing new here. The level of audacity heard in the plaintiffs voices is unmistakable. I believe the Constitution is clear on this, and that the Statutory Damages Provision was implicitly designed for commercial infringement.

File sharing is copyright infringement, nothing more, a civil offense. It is not theft, it is not even a lost sale. The rhetorical propaganda, outright lies of damages, and the abundance of self worth has done nothing to help an industry in the spirals of death. As more and more real research is done on the affects of file sharing, less and less of it is being heard, considered, or even reviewed during any copyright legislation.

So the question remains, will Joel be responsible for $675,000 in damages the greedy RIAA are demanding, or will he owe $67,500 that Judge Gertner imposed, or will the 1st Circuit Court reduce it to $30, which is what Joel believes he owes.

Stay Tuned…

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“And nothing happened?”

Today, April 1, was supposed to be is C Day when the Conficker C worm was supposed to wreak havoc online.

But nothing happened.

Conficker C?

pffffffffft

p2pnet – Conficker C. To fear? Or not to fear?, March 31, 2009

restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.

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“Officials have invited roughly 70 stakeholder groups to discuss an international intellectual property treaty that the U.S. regards as a national security secret and about which the only public substantive information has come from a series of unofficial leaks.”

ACTA, in other words.

Now, “I thought it be useful to develop an ACTA timeline so that the progression of the still-secret treaty can be more easily understood,” says Geist, going on »»»

This lengthy post builds on a range of articles, blog postings, official documents released under Access to Information, and well-publicized leaks.  While the starting point is October 2007, when there was a coordinated announcement from participating countries, David Harris has an insightful post tracing ACTA lobbying to 2004 and the first Global Congress on Combating Counterfeiting.  Further, I’ve uncovered Canadian documents as early as January 2007 that discuss ACTA.

Assuming October 2007, however, the chronology looks something like this:

October 2007 – The United States, European Union, Japan, South Korea, Mexico, New Zealand, Switzerland, and Canada announce plans to negotiate ACTA.

November 2007 – April 2008 – Governments conduct initial consultations on ACTA.  Australia consults in November 2007 on whether to participate.  The U.S. consults in February 2008.  Canada consults in April 2008.

The results of the Canadian consultation are not released to the public but an Access to Information request uncovers a report on the results that note that “individual Canadian citizens were generally critical of Canada`s role in the formal negotiation of ACTA.” Individual responses cited the lack of transparency associated with the process, the absence of evidence that a new treaty is needed, the exclusion of developing countries from the negotiations, and the concern that ACTA might undermine Canadian law.

March 2008 – Negotiating countries hold preliminary meeting on ACTA.  The outline of ACTA is confirmed with six main chapters: (1) Initial Provisions and Definitions; (2) Enforcement of Intellectual Property Rights; (3) International Cooperation; (4) Enforcement Practices; (5) Institutional Arrangements; and (6) Final Provisions.  The Enforcement of Intellectual Property Rights chapter has four sections: civil enforcement, border measures, criminal enforcement, and the Internet.

Meanwhile, RIAA submits recommended ACTA provisions to the USTR.

June 2008 – First round of negotiations held in Geneva on June 3rd and 4th.  Canadian speaking notes for the meeting are available here.  Participating countries are Australia, Canada, the EC, European Union Presidency (Slovenia), Japan, South Korea, Mexico, Morocco, New Zealand, United Arab Emirates, and the U.S.  The meeting is chaired by the USTR and hosted at the U.S. Mission in Geneva.

Canada submits two “non-papers” on Institutional arrangements (Chapter 4 of ACTA) and procedural matters. The institutional arrangements paper call for the creation of an “ACTA Oversight Council” that would meet each year to discuss implementations, best practices, and assist other governments who are considering joining ACTA.

The U.S. and Japan provide draft language for the Border Measures section.  The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder.  Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders.  Those same officers would have the power to levy penalties if the goods are infringing.  Moreover, the U.S. would like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.  A delegation also raises the prospect of a provision addressing disclosure of information:

With a view to establishing whether an intellectual property right has been infringed under national law and in accordance with national provisions on the protection of personal data, commercial and industrial secrecy and professional and administrative confidentiality, the competent authorities have detained infringing goods, shall inform the right holder of the names and addresses of the consignor, importer, exporter, or consignee, and provide to the right holder a description of the goods, the quantity of the goods, and, if known, the country of origin and name and addresses of producers of the goods.

Many countries suggest amendments including de minimum rules and the removal of certain clauses.  Moreover, the EU has proposed a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature.  It provides:

Where a traveler`s personal baggage goods of a non-commercial nature within the limits of the duty-free allowance and there are no material indication to suggest the goods are part of commercial traffic, each Party may consider to leave such goods or part of such goods outside the scope of this section.

July 2008 – Second round of negotiations held in Washington, DC on July 29 – 31st.  Participating countries are Australia, Canada, the EC, European Union Presidency (France), Japan, South Korea, Mexico, Morocco, New Zealand, Switzerland, Singapore, and the U.S.  (official press release here). Discussions focus on border measures (second time), civil enforcement (first time), as well as non-papers on institutional issues and international cooperation.

The U.S. and Japan supply draft text of the civil enforcement provisions.  They call for the availability of civil judicial procedures for the enforcement of any intellectual property right, though some countries would like this limited to copyright and trademark.  Parties to the treaty would be required to implement procedures that include the availability of statutory damages for copyright and trademark infringement (some countries would like this to be optional, while the U.S. would like the damages provisions expanded to patent infringement) as well as court costs.  The statutory damages provisions include:

1. Each Party shall provide that in civil judicial proceedings, its judicial authorities on application of the injured party shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights to pay the right holder damages adequate to compensate for the actual prejudice the right holder has suffered as a result of the infringement, taking into account all appropriate aspects, inter alia, the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price, unfair profits and elements other than economic factors or other legitimate measure of value submitted by the right holder.

2. As an alternative to paragraph 1, each Party may establish or maintain a system that provides:
(a) pre-established damages, or
(b) presumptions for determining the amount of damages,

sufficient to compensate [Option US: fully] the right holder for the harm caused by the infringement.

Additional required remedies include orders to destroy the infringing goods without compensation.  The proposals also call for significant mandated information disclosure, including ordering alleged infringers to disclose information regarding any person or third parties involved in any aspect of the infringement (some countries want this deleted and others are seeking to preserve privacy protections).  That provision states:

Each Party shall provide that in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to order the infringer to provide, for the purpose of collecting evidence, any information [Option J: in the form as prescribed in its applicable laws and regulations] that the infringer possesses or controls, [Option J: ,where appropriate,] to the right holder or to the judicial authorities. Such information may include information regarding any person or persons involved in any aspect of the infringement and regarding the means of production or distribution channel of such goods or services, including the identification of third persons involved in the production and distribution of the infringing goods or services or in their channels of distribution.

October 2008 – Third round of negotiations held in Tokyo, Japan on October 8th and 9th (the meeting was scheduled to last 2 1/2 days but wrapped up early)(official press release here).  Participating countries are Australia, EU, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, the U.S., Japan, and Canada.  Countries agree that it is too ambitious to have two more meetings in 2008 and settle for a single, longer meeting later in the year.

Day one focuses on criminal enforcement.  The U.S. and Japan supply draft text of the criminal enforcement provisions.  The proposal would extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain.  The treaty would require each country to establish a laundry list of penalties – including imprisonment – sufficient to deter future acts of infringement (specific language is “include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with a policy of removing the monetary incentive of the infringer.”)

Moreover, trafficking in fake packaging for movies or music would become a criminal act as would unauthorized camcording.   The fake packaging provision provides:

Each Party shall provide for criminal procedures and penalties to be applied, even absent willful trademark counterfeiting or copyright or related rights piracy, at least in cases of knowing trafficking in:
(a)    counterfeit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
(i)    a phonogram,
(ii)     a copy of a computer program or other literary work,
(iii)    a copy of a motion picture or other audiovisual work,
(iv)    documentation or packaging for such items; and
(b)     counterfeit documentation or packaging for items of the type described in subparagraph (a); and
(c)    illicit labels affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany items of the type described in subparagraph (a).

The anti-camcording language says:

Each Party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright or related rights in a motion picture or other audiovisual work, knowingly uses an audiovisual recording device to transmit or make a copy of or transmits to the public the motion picture or other audiovisual work, or any part thereof, from a performance of the motion picture or other audiovisual work in a motion picture exhibition facility open to the public.

Day two focuses on the civil enforcement provisions (for the second time).

November 2008 – Canadian government re-launches ACTA consultation, treating it as ongoing.  Marie-Lucie Morin, then the Deputy Minister of International Trade (and now National Security Advisor to Prime Minister Stephen Harper), warns Minister Stockwell Day that “should there be no consensus among the ACTA partners to make the ACTA text public, the Department will need to develop options to address Canadian stakeholders concerns about the lack of transparency in the ACTA process.”

December 2008 – Fourth round of negotiations held in Paris, France on December 15 – 18th (official press release here). Participating countries are Australia, Canada, the EC, the EU Presidency (France), Japan, South Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the U.S.  Canada supplies the draft text for the Institutional Arrangements chapter, which is the lead issue for discussion on day one.  Later in day one, parties continue negotiation on criminal enforcement (first raised in Tokyo in October).  Day two includes further discussion on criminal enforcement in the morning and institutional cooperation and enforcement practices in the afternoon.

Day three focuses on Internet issues. The U.S. provides a “non-paper” on the Internet issues section with each delegation to answer questions on the state of their domestic law.  The paper discusses Internet copyright provisions, liability for Internet service providers, and legal protection for digital locks and raises questions about damage awards, liability for hosting or storing content, and the extent to which the anti-circumvention provisions mirror the U.S. approach.

February 2009 – U.S. seeks delay in March 2009 negotiation session to allow for transition at the USTR.

March 2009 – The European Parliament passes a resolution calling for the public availability of all ACTA materials. The U.S. government denies requests for access to ACTA documents on national security grounds but promises to review its approach.

To be continued …

Michael Geist – Battle over ACTA Heats Up, March 30, 2009
ACTA – Europe wants greater ACTA transparency, March 12, 2009

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It’s Official Salaried Twitter Tweetist, alternatively known as Ghost Twitterer

Twitter appears to be on the end of its first libel action — singer Courtney Love in the middle of it, says The Independent.

“Ms Love’s angry ‘tweets’ against her former fashion designer, Dawn Simorangkir, have landed her in court,” it says.

According to a libel claim lodged by Simorangkir, Love carried out an,”obsessive and delusional crusade” of “malicious libel against her on Twitter, adding insult on MySpace and other websites,” says the story.

Simorangkir also claims “numerous tweets posted by Love on Twitter accuse her of being a ‘nasty, lying, hosebag thief’,” among many other accusations.

Now Simorangkir is seeking punitive damages, “arguing that the comments have destroyed her reputation and her business,”says the story, adding official documents state, “Whether caused by drug-induced psychosis, a warped understanding of reality, or the belief that money and fame allow her to disregard the law, Love has embarked on what is nothing short of an obsessive and delusional crusade to destroy Simorangkir’s reputation and her livelihood.”

Adds the Independent, “Many celebrities, including President Obama, now use ghost-writers to update tweets.”

Now you know.

The Independent –  Love’s online spat sparks first Twitter libel suit, March 29, 2009

The Big 4 labels, Warner Music, Universal, EMO and Sony BMG, “have all signed up to the service, which will be free to Chinese users, but will not be available elsewhere,” says the story.

The only thing Google fights for is Google, ditto the Big 4, fast going down the tubes as they desperately try to sue their own customers into becoming compliant consumers of corporate ‘product,’ at the same time attempting to recruit ISPs around the world as Big 4 hit squads.

”Google is aiming to take on local search engine competitors such as Baidu, which have the dominant share of search revenue in China,” says the story, continuing:

“Baidu, and other search engines, have grown rapidly on the back of specialised pages that help users to find and download unlicensed music. Kai-Fu Lee, president of Google Greater China, said that music downloads were ‘the key missing piece’ to Google’s service in China, and claimed that a lack of music search was the most common reason that Chinese users gave for preferring other search sites. Google will team up with Top100.cn, a popular Chinese site, to provide the new service.”

First China, and then …

Are you paying attention, RealNetworks and Apple?

Stay tuned.

»»»

Times Online – Google fights for Chinese internet users with free music service, March 30, 2009

It also spent $44 million in advertising with MTVN, said paidContent earlier in the month.

With that in the background RealNetworks, its RealPlayer for years plagued by revelations of one critical security problem after another, said it didn’t think it’d be sued by Hollywood’s MPAA for marketing DVD copying software, says Wired.

“Today was L-for-Launch Day for RealNetworks` RealDVD, created to allow Windows users rip entire DVDs,” posted p2pnet in September, 2oo8, going on that the EFF’s Fred von Lohmann had pointed out industry DVDs are encrypted with CSS and if you decrypt them without permission, Hollywood lawyers, “may come a-callin”.

He was dead on: the company was accused of deliberately destroying evidence that would’ve been relevant in the   subsequent copyright infringement case.

Real Denied the allegations, but the MPAA demanded a court order for RealNetworks, “to preserve relevant documents from now on,” although the damage had already been done and Real’s actions had “irreparably impaired the integrity of the judicial process,” said Ars Technica, quoting the MPAA.

Now, “We didn’t think litigation was probable,” Wired has Leo Cunningham, a RealNetworks lawyer, telling US District judge Marilyn Hall Patel during a brief hearing.

The assertion was made, “because, under rules of evidence, companies must retain records if they believe they are going to be sued,” says the story,  going on:

“‘The MPAA claims RealNetworks destroyed a host of documents relating to RealDVD’s production — well before the MPAA sued it in September.”

MPAA lawyer Bart Williams told Patel it was obvious the MPAA would sue RealNetworks, says Wired, going on:

“He said RealNetworks should have known as such, even from the time of the product’s initial development two years ago.

” ‘This was not some theoretically possibility,’ Williams said. He also said, ‘They knew there would be a lawsuit’.”

apologised -RealNetworks – `give us another shot, February 24, 2009`
paidContent -  RealNetworks Details Promotion Costs For Rhapsody North America, March 2, 2009
Wired – RealNetworks: ‘We Didn’t Think’ MPAA Would Sue Over DVD Copying Software, March 23, 2009
L-for-Launch Day – RealNetworks DVD ripper, September 8, 2008
p2pnet -  MPAA sues RealNetwork, September 30, 2008
pointed out – Want to Back up your DVD? Here`s how , September 16, 2008
Ars Technica -  MPAA: RealNetworks hamstrings lawsuit by destroying evidence, March 5, 200

But, he says, it’s we, the public, who have to deal with the negative consequences and in some parts of the world, that means waiting for extra weeks, or even months, before a movie premieres.

“Movie theaters nowadays are becoming more secure than some airports,” says the post, going on »»»

Employees are equipped with night-vision goggles and instructed to closely monitor movie goers. Metal detectors are installed, the public has to hand over all recording devices and in some instances even their candy.

Despite all these efforts, desperately poor-quality camcorded films that are hardly worth watching still leak onto the Internet – so more has to be done.

Quite common by now are the watermarking techniques used by the studios to track down the origin of cams. Through these watermarks the theaters where the movies are recorded can be identified, and every now and then an arrest is made. Recent technological advances even make it possible to get a fairly accurate estimation of the location of the camcorder equipment using audio watermarks. These audio watermarks have not been implemented yet since they require a lot of extra paperwork in order to work well.

In a recent blog post John August, the director of hit movie The Nines, discusses some of the anti-piracy tools the movie studios are using to decrease or deter camcording in theaters. August himself has a fairly balanced view on illegal downloading.

In a previous interview with TorrentFreak he said that he wouldn`t think bad of people who downloaded his movie using BitTorrent. In talks with other studio insiders, however, he discovered something that made our jaws drop.

We`ve mentioned many times before that when a movie hits the theater, or a DVD or TV show debuts in one country before it does in another, this is a major incentive for people to turn to BitTorrent. People don`t like waiting for something that other people already have, especially if the solution to that is just a few clicks away.

However, instead of putting time and effort into making their content premiere globally, the studios are purposely delaying movie releases in some countries because a lot of cam releases originate there.

So, instead of working towards solving the problem, the studios are actually encouraging piracy by restricting access to millions of potential customers. Like many others, August himself acknowledges that delayed premiere dates in some locations might actually encourage people to pirate movies and TV-shows.

But, “Instead of adding restrictions and thereby alienating their customers, the movie and TV studios should focus on dropping the release windows for their content,” says TorrentFreak, adding:

“It may have been possible to keep people and countries apart pre-Internet, but not any more.

“People worldwide are closer together today than ever before – and only getting closer.”

TorrentFreak – Fear of Movie Piracy Delays Theater Releases, March 20, 2009

http://www.assemblee-nationale.fr/13/projets/pl1240.asp (in French).

Says Philippe Axel  »»»

The French governement wants to disconnect websurfers after three emails warnings and the debates starts at the National Assembly (final  vote). The proposition of law called “Creation et Internet” has the goal  to create a new administration called “Hadopi” with the ability to cut an internet connection for few months.Musical and films industry hopes  that 10 000 warning emails a day will stop P2P sharing. It’s not a  joke.It’s very serious.

The movement “La Quadrature du Net” issues:

A call to all freedom-cherishing citizens to a “black-out” of their sites, blogs, profiles, avatars,… As has been done in New Zealand, the only other country with France where the “graduated response” would have been imposed by law, and was finally pushed back: to protest against  this stupid law and its “white list” of authorized websites, the French  Web must act and dress in black.”

http://www.laquadrature.net/en/french-net-blackout-against-graduated-response

You can see an example on my blog: http://www.philaxel.com. Many french profiles pictures in facebook are now in black.

Thanks to consider that all europe and USA waits for the result of this debate and vote to do simply the same…

In the maintime, la quadrature add this very important information:

“Rapporteurs for the European Parliament on the directives of the  Telecoms Package, have just released their draft reports for the second  reading. Some improvements were made, like the reintroduction of amendments 138 & 166. About Net discrimination, the worst was avoided, but there is still a blatant lack for clarification and concrete guarantees that Telecom operators won’t be allowed full control over the m Internet.

http://www.laquadrature.net/en/telecoms-package-a-little-extra-effort-required

Cheers
Philippe Axel
http://www.philaxel.com

[NOTE: I'm afraid I'm feeling too cruddy to do much today so I'm simply going to post headings with notes and links and ask anyone who's interested to perhaps post more data under individual items, if they feel so inclined. Cheers! And thanks - Jon.]

March, 2009

In the white corner are Fredrik Neij (TiAMO), Gottfrid Svartholm (Anakata) Warg, Peter Sunde (Brokep) Carl Lundström who together run The Pirate Bay.

In the black corner are Warner Bros, MGM, EMI, Colombia Pictures, 20th Century Fox, Sony BMG and Universal.

TorrentFreak, over in The Netherlands, is running excellent day-by-day coverage with enigmax providing the copy.

Yesterday, all the attention was on Fredrik Neij and today, it’s Peter Sunde’s turn.

Failed Swedish prosecutor HÃ¥kan Roswall started off by asking Peter if he ever had dealings with The Pirate Bay’s (TPB) computer systems, says enigmax, reporting Peter said he did, “but in a limited fashion”.

The TorrentFreak post continues »»»

Roswall then inquired about Peter’s involvement in TPB’s advertising deals, in particular one with ad company Random Media which Peter signed up to as a ‘Founder’ of the site. Peter said that this was connected with new website project which would draw funds from TPB’s adverttising revenue.

Roswall then brought up Piratbyran – the Swedish Bureau of Piracy – and asked Peter if this organization is critical of copyright. “Not critical directly,” Peter replied. “There are many differing views.”

Roswall then turned to Peter’s stance toward copyright. “This is a difficult question to answer,” Peter said. “I like things that are not protected by copyright, this is a non-issue.”

Peter was asked if he knew of TPB’s “legal” page. He said he was aware of it. Roswall, presumably trying to speak the same ‘language’ as the somewhat techie defendants, got tied up a little;

“When did you meet [Gottfrid] for the first time IRL?” asked the Prosecutor. “We do not use the expression IRL,” said Peter, we use AFK. “IRL?” questioned the judge. “In Real Life,” the Prosecutor explained to the judge.

“We do not use that expression,” Peter noted. “Everything is in real life. We use AFK – Away From Keyboard.” “Well,” said Roswall. “It seems I am a little bit out of date.”

One of the themes so far is how the Prosecutor is struggling to come to terms with the somewhat chaotic structure of the TPB’s operations. Trying to pin down Peter’s role, he asked about his position as TPB spokesman – Peter said he took the unofficial position since no-one else in the team wanted to do it. A request from a journalist or someone else for a comment on something came in, said Peter, and he simply took it in hand.

Then the attention turned to Peter’s relationship with advertiser Oded Daniel and whether or not Peter has handled money from him. “Have you never wondered why you got these earnings reports? Isn’t this type of thing a little beyond your role of spokesman?” asked Roswall.

“I think it is his [Oded Daniel's] way of trying to motivate people. He sends so much weird email, I don’t read half of it. He could have been using me to get more contact with Fredrik and Gottfrid,” said Peter. The Prosecutor continued to struggle with the apparent lack of a formal decision-making structure at TPB, continually referring to TPB as a “company”.

It was revealed that Peter and Gottfrid met Oded Daniel in 2005/2006. Carl Lundström and Peter Sunde met just a handful of times.

“Is it true you went to Israel to meet Oded in 2006?” said Roswall. “Yes,” responded Peter.

“Why did you go to meet him?” questioned Roswall. “Because he asked me to go there as his guest,” said Peter. “Did you not go there to go to the beach?” “Yes, I did, very often.”

Roswall then questioned Peter on many emails back and forth from Oded Daniel to TPB, many centered on the proposed TPB YouTube-like side-project for streaming video called VideoBay. Referring to development of the search capability on TPB, the Prosecutor appeared to be suggesting that Peter worked on TPB on technical issues in a response to mails from Oded Daniel, but Peter said that others carried out the work.

At one stage Peter said he came up with the idea of selling statistics from TPB, believing people would be interested to read them in newspapers etc. When Roswall asked Peter if he ever expected to receive money from TPB, the answer was “no”.

After the break, it was IFPI’s Peter Danowsky turn to start questioning Peter, beginning with his education. Peter says he dropped out of school but later learned English and computer programming from the Internet. Danowsky then turned his attention to ad-company Random Media, again referring to emails from TPB.

Then, in a repeat of yesterday’s performance, the Prosecution started again to introduce more evidence that had not been cleared pre-trial. Danowsky continued to present new evidence in the form of some newspaper articles to try to contradict what Peter had said.

According to multiple reports, not only was the defense annoyed at the Prosecution’s unacceptable actions, but the judge was too. The judge reprimanded Danowsky and the defense told him to cut out this American-style trial strategy. The Court then adjourned for 10 minutes to discuss the situation.

Upon restart, the judge said the decision is that any new material the Prosecution is planning to bring up needs to be submitted before the questioning has started, as is proper. The Prosecution then claimed to hand over all their surprise material they were holding and the Court took another break so that Peter could read through everything. This was later confirmed to be 9 new documents.

After the break Danowsky’s questioning of Peter resumed. “Did you hold a lecture called “How to dismantle a billion dollar industry?” “Yes I did,” replied Peter.

Danowsky started to quote some of Peter’s comments from his blog at Brokep.com. Peter says that everything he writes on his blog isn’t about TPB even if prosecutors would like it to be the case.

Pressed further on his opinions on copyright, Peter asked Danowsky, “That is a political issue. Is this a political trial or a legal trial?” Danowsky continued, ignoring the question but Peter pulled him back. “I want an answer from the lawyer Danowsky. Is this a political trial? Can I get a reply?”

“How can copyright law be a political issue?” said Danowsky, but had no follow up questions. Peter was surprised, “No follow-ups? Ok, let me elaborate ” and he went on at length about the context of Danowsky’s various questions.

Danowsky asked Peter about a time when he said that rights holders had acted illegally. Peter said this was a reference to Warner Brothers that had attacked file-sharing sites with hacking, aka anti-p2p activity.

Danowsky asked Peter what the purpose of TPB was. “It is to enable users to share their material with others,” said Peter. “Even though it is copyrighted?” questioned Danowsky. “That can sometimes be the sad consequences,” Peter replied.

After a brief appearance by defense lawyer Wadsted, the court stopped for lunch.

On return, Peter Altin questioned his client, Peter Sunde. He asked him if he was responsible for TPB or if he felt responsible due to his comments for the site. On both, the reply was negative.

Altin put it to Peter that he could’ve made lots of money from TPB. “No, I don’t have a million sitting around somewhere. That would be nice, though.”

When Altin asked about the amount of copyright material tracked by TPB, Peter explained that he carried out a survey of a random 1000 torrents from the tracker and 80% of the content linked by the site was not copyrighted, noting that there is much more illegal material on YouTube.

Then Altin’s interview with Carl Lundström began. He told the court how he met Fredrik at an event called Dreamhack in Jönköping, Sweden during 2004. The Court heard that Lundström always believed that TPB operated within the law but they needed resources. This situation led to him signing an agreement with Fredrik that they could have two computers at Rix Telecom in Gothenburg, along with him being a technician there. The deal would allow TPB to develop with a little financial support from Lundström, and then when the site grew and became a success, TPB would stay with Rix and pay their way as a regular customer.

Next it was Roswall’s turn to interview Lundström. Lundström admitted that he knew that there was piracy connected with TPB, and that he understood that TPB is a “file-sharing site, a torrent site”.

Speaking of the advertising he took responsibility for the plan believing it was a way the site could pay for itself in the future. He went on to say that he had no idea of any political motivations of the site and what interested him was the desire of the other defendants to make the biggest BitTorrent site in the world. “And I liked that,” he said.

“I can understand that,” replied Roswall.

Then followed discussion about the equipment given to TPB by Lundström. The cost of the equipment was 18,000 kronor and the bill was paid by Lundström. Lundström made clear that he didn’t want to become a partner, but that he did continue to be interested in the project, and that he gave some advise to the TPB team a few times.

• The Pirate Bay trial, live and online - Day One 
• The Pirate Bay vs Them: Day Two - Distributed Hash Tables 
• The Pirate Bay vs Them: Day Three - ‘Small change’ 
• The Pirate Bay vs Them: Day Four - Neij’s turn 

Stay tuned.

February , 2009

“Richard Dearden acted for the appellant and Ronald Caza acted for the Respondent,” he says, going on »»»

There were several interveners’ counsel.

It involved Dano Cusson, a former OPP constable, who became famous and then infamous right after 9/11 when he went to ground zero with his dog to assist in the search for survivors. The Ottawa Citizen raised questions as to whether Cusson had misrepresented himself as an RCMP officer, whether he and his dog were trained for such K-9 rescue work, and whether he may have actually hampered the rescue effort, etc. Cusson won $100,000 for libel at trial. The Ottawa Citizen lawyer today repeatedly referred to Cusson’s dog as a pet.

The Ottawa Citizen lost at trial and on appeal, but scored a huge victory on appeal by getting recognition in principle of the “responsible journalism” defence, albeit with a ruling that it couldn’t be applied in the circumstances and on the record of this case because “the standard of responsible journalism was simply not litigated at this trial.” The Citizen appealed. The issue of whether there is an adequate record for the SCC to decide these weighty issues in this instance is clearly important and contentious.

Big questions coming out of this include how far Canada will go towards the more liberalized standard for journalists now in effect in Australia, New Zealand, UK and – of course – the USA where the NY Times v. Sullivan “absence of malice” standard has ruled for more than 40 years. An important new decision that was the talk of the town today from the House of Lords (Jameel) was rendered after the trial and before the appeal in this instance, although the previous House of Lords decision (Reynolds) on which Jameel was based came before this litigation was commenced. The Reynolds/Jameel defence is known as the responsible journalism defence. It doesn’t go quite as far as NY Times v. Sullivan but goes significantly farther than Canadian courts have gone before. It basically gives the right to be wrong to a journalist acting responsibly in reporting a matter of public interest.

Of course, NY Times v. Sullivan goes even farther and held that holds that a public official cannot recover damages for defamatory statements relating to his or her official conduct without proof of actual malice, namely, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. It is often said that without that 1964 decision Woodward and Bernstein would never have been able report their Watergate Story and Nixon would never have had to face the consequences of the cover up. However, for better or worse, NY Times v. Sullivan doesn’t seem likely to be the law in Canada just yet – the Supremes flat out rejected it only fourteen years ago in the Hill v. Scientology case.

Public interest on one extreme would include questions such as whether a Member of Parliament had been bribed. At another extreme, counsel seemed to agree the affairs of soccer players’ wives are not matters of public interest.

Can statements on matters of public interest that may turn out to be incorrect be published to the world at large as long as a “responsible” standard was involved? If so, does this defence replace or complement the ancient and honoured but much more limited defence of qualified privilege?

And a burning question for lots of bloggers, which repeatedly arose today, is whether the Court should allow any new defence to be available to anyone, and not just a “journalist” (whatever that means any more) working for a traditional media outlet. Interestingly, all of the appellants who represented vested media interests and are urging a significant liberalization of the law of libel the refrained from limiting the potential new defence they seek to traditional “accredited” type journalists.

Another interesting question to watch will be the Supreme’s take on why the law has evolved as it has in the UK, which may have less to do with the evolution of the common law and much more to do with the incorporation the European Convention for the Protection of Human Rights and Fundamental Freedoms into U.K. law. The result so far seems fairly clear. On the one hand, the “responsible” journalism” defence has opened up and liberalized the law of defamation in the UK. But on the other hand, the newly constitutionalized right of privacy under the Convention has enabled a very public figures such as Max Mosley to successful sue for the the publication of very embarrassing but perfectly true private information. It is doubtful that Mosley would succeed in such a claim in Ontario, at least. Freedom of expression for the press is not necessarily that clear in the UK today. Cusson’s counsel emphasized that there was no evidentiary basis to change the common law or to render a Charter based decsion and that European law was not persuasive.

Interestingly, British Columbia now has a Privacy Act that might - note the emphasis – provide some relief to a plaintiff in a Max Mosley situation. It has some interesting cross references to defamation law. Ontario has no such statute. So we could, in principle, see a situation in which the same article would be illegal in the Vancouver Sun but legal in the Toronto Star – with both clearly visible online throughout Canada. Privacy is not a right guaranteed by the Canadian Charter, unlike it is now in Europe.

We may also see situations where different provinces may yield different results in defamation that is published on the internet. Clear and decisive reasoning from the Supremes would go a long way towards resolving such potential conflict of laws problems that could seriously impede communication and freedom of expression in Canada. There still remains of the problem of internatioanl conflicts and a treaty may someday be necessary to solve the libel tourism problem

We will be surely be living in interesting times in respect of defamation and privacy laws in the years ahead. Some principles change slowly if ever. But sometimes the law lurches forward for better or worse. The SCC is now faced with a classic double dilemma of deciding whether the law of defamation needs to be changed in Canada, and if so, whether that change can come from the Courts throught the common law (and what about Quebec where the Civil Code prevails?) or can only come from the legislatures?

From an advocacy standpoint, it was interesting to note the unusual (for a Supreme Court case) reliance on “facts” by the Appellant (the Ottawa Citizen), including the use in reply of a large mounted stand up poster of then Constable Cusson in an RCMP uniform. This had been put in the record just a few days before the hearing.

Here’s a good summary by Kirk Makin, veteran Supremes watcher.

And in a wonderful new development, the Court has begun webcasting. This is a very appropriate case to launch this practice. Congratulations to my old friend Daniel Henry, a great lawyer at the CBC, who appeared today for CBC and who has been fighting the good fight for cameras in the courtroom for about 30 years. Above all, congratulations to the Supremes themselves for making this happen – along with many other innovations and benchmarks for the rest of the judicial system.

Libel law is very complicated. It always was. Now, it is intersecting in interesting ways in Canada with the Charter and the internet. This case is difficult to call. We should know the answer – which may not be unanimous – in about six months, if the Supremes are true to form.

PS:  And in a clearly related development, the Supremes today granted leave to appeal in Grant v Toronto Star, a libel case involving a wealthy businessman and friend of Premiere Mike Harris and contributor to the Ontario Conservative Party. According to the SCC summary:

On the date of a public meeting called by the Minister of Natural Resources with respect to the proposal, the Toronto Star published a front page article regarding the proposed golf course expansion. Inter alia, the article quoted a cottager, who said, Everyone thinks it`s a done deal because of Grant`s influence but most of all his Mike Harris ties. Grant sued the newspaper for libel, claiming that the newspaper suggested that he had used political influence to circumvent the concerns of local citizens and to bypass the normal approval process.

Grant won at trial, lost on appeal and now has been granted leave to appeal by the SCC on an expedited basis,” says Knopf, adding:

“He was an intervener in the Cusson case on Cusson’s side. Clearly, the Court has connected these two cases as sometimes happens and the judgments will likely appear back to back.”

Howard Knopf – Excess Copyright
[Knopf is an Ottawa-based copyright lawyer who's been lead counsel on legal challenges both at the Copyright Board and in the Courts against the excesses of the music industry establishment. He's regularly quoted in the mainstream media and acted against the CRIA in the file sharing litigation, and continues to act against the CPCC, in which the CRIA is still a major stakeholder, on the levy front.]

[Also see Canadian media want old libel laws updated, February 19]

This paper reports the results of a summer 2008 survey designed to address the campus costs of compliance with the new P2P filesharing mandates in reauthorized Higher Education Act (HEA) that was signed into law on August 14, 2008.  The report is based data from 321 colleges and universities and focuses on P2P compliance costs as reflected in expenditures (e.g., content and software licenses)  and also the time that campus personnel spend on P2P filesharing issues.

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Music Social Network Imeem In Play; Hires Bank; Laying Off 25 Percent – paidContent

Online music-focused social network Imeem is on the block, according to our sources, and has hired investment banker Montgomery and Co. to lead the sale. Coincidentally, we have also learned that the company is announcing some layoffs internally today—as much as 25 percent of its around 80-strong workforce. These layoffs are mainly on the technical back end and services side. The company has done its on-demand streaming music deals with all four majors, and has also been working with a slew of indies. As it has built out its platform (it recently relaunched its site/service), and done most of the biz dev deals, the focus now is on growing audience and monetizing the platform…it won`t be needing as much technical expertise going ahead, the sources say, and hence the layoffs. Of course, Imeem is a Sequoia-portfolio company, which means it is all but obligated to heed to the VC firm`s recent call of cost and employee cuts.

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Kevin Cogill, The Guns N Roses Pirate Pleads Not Guilty – PiracyIsACrime

Kevin Cogill, a man who admitted in writing two times to the fbi that he in fact pirated, and distributed the unreleased guns n roses album titled ‘Chinese Democracy has plead not guilty in court earlier today. Cogill was arrested in August at his Los Angeles home and released on bail the same day. He faces three years in federal prison if convicted, and five years if the court finds he posted the songs for commercial gain. Kevin, who has support from many online who are helping pay for his defense fund (ref link removed), is now  able to fight in what most thought would be a quick ending to a `open and shut` case. Originally Kevin was being represented by the federal public defender`s office but now has retained his own attorney, David Kaloyanides.

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Virtual games, real addiction – Globe and Mail

Angelika Crisp would wake in the middle of the night to hear her son, Brandon, speaking into his headset as he feverishly played Call of Duty 4: Modern Warfare, a popular online video game. She and her husband, Steve, are sure Brandon had become addicted to the game and link its appeal to the 15-year-old’s disappearance from their Barrie, Ont., home on Oct. 13. “He is obsessed with Call of Duty – it has been a constant battle for the last two years,” she told The Globe and Mail this week. Last night, investigators ramped up their national search for the youth and considered the possibility he is trying to survive in the wilderness. The kind of obsessive online behaviour reported by Brandon’s parents is what prompted clinicians at the Centre for Addiction and Mental Health in Toronto to launch Canada’s first holistic clinic specifically designed to treat adolescents addicted to gambling, the Internet and video games. The Adolescent Clinical Education Service, dubbed ACES by clinical head Bruce Ballon, was launched last month and seeks to propel youth addiction treatment into the 21st century by acknowledging that video games and the Internet can be just another escape route for young people battling mental health issues such as social anxiety, depression or low self-esteem.

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`Shocking` 61% of all Upstream Internet Traffic is P2P – TorrentFreak

Sandvine, best known for manufacturing the hardware that slowed down BitTorrent users on Comcast, has released an Internet traffic trends report today. The report shows that, on average, P2P traffic is responsible for more than half of the upstream traffic, but mostly the report seems an attempt to sell their traffic shaping products.

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Experts predict botnets will spread to mobile devices in 2009 – Heise Online

Security experts from the renowned Georgia Institute of Technology expect to see botnets spread to mobile devices in 2009. The “Emerging Cyber Threats Report for 2009″ from the annual summit, attended by various research and business specialists and organised by Georgia Tech Information Security Center (GTISC), concludes that bot-driven DDoS attacks on mobile phone networks are likely to occur from next year. In addition, criminals will also take aim at data stored on mobiles and smartphones. In Japan users are already using mobile devices for making payments at vending machines and to pay for public transport.

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[OT] Operating inside a Beating Heart – Technology Review

Fixing the heart is hard. Certain procedures have to be performed on a stationary organ, so the heart is stopped and the patient put on a cardiopulmonary bypass machine. But stopping the heart increases the risk of brain damage. Now researchers at Harvard University and Children’s Hospital Boston are testing a robotic system that could help surgeons perform a common valve repair while the heart beats on. The system uses 3-D ultrasound images to predict and compensate for the motion of the heart so that the surgeon can work on a patient’s mitral valve as it moves.

p2pnet news view Freedom | P2P:- In our first story on the fact the Cult Scientology owns (or thinks it does) its very own street in Los Angeles, it, “gets the street closed down every weekend,” we said.

“Unphkinghbelieveable. But true.”

A second story wondered what L Ron Hubbard Way actually looks like, and what they get up to and:

“Friday morning from 6am until Saturday night at 11pm for the past two years Samantha Franklin, along with her neighbors, have endured a nightmare of street and sidewalk closures for parties, complete with hostile security guards, stages, bright lighting and loud music, plus vendors crowding her residential street,” said Brandon Walsh’s September 21 San Francisco Bay Area Independent Media Center story.

It went on:

“Together with Lisa Derrick, Samantha has been trying to get LA City Council to do something about the cult`s regular hostile weekend occupation of what`s supposed to be a public street.

“Construction for the events begins days in advance, starting sometimes before 7 am and going on past 10 pm at night, said Walsh in Residents Oppose Scientology`s Year-Round Weekend Closures of L. Ron Hubbard Way.”

Meanwhile, the amorphous Anonymous continues to plague CoS with no signs of going away.

They say a picture is worth a thousand words, so what’s this animation, pointed out by a p2pnet reader, worth?

Cheers!

Jon Newton – p2pnet

Los Angeles Times – , September , 2008

Married to singer and broadcaster Murray McLauchlan, Denise Donlon replaces Jennifer McGuire, who stepped down in May, says the CBC.

“Denise is without question one of the broadcasting industry’s most talented and dynamic organizational leaders,” Richard Stursberg, executive vice- president of CBC English Services, said in a statement.

Donlon, 52, was born in Toronto and began working as a host and producer at MuchMusic in 1985 and was president of Sony from 2000 to 2004, says the story.

Sony BMG is a member of the Big 4 corporate music cartel who are using their various so-called trade organisation such as the CRIA (Canadian Recording Industry Association of America)  to try to gain exclusive control how and by whom music is distributed online.

CBC – Denise Donlon named to top job at CBC Radio, September 17, 2008