Granting the .pharmacy domain to NABP would confer legitimacy on pharmacies sanctioned by NABP, to the detriment of those that are not.

NABP has proposed an unfair standard that would bar online pharmacies that serve US consumers but are located outside of the United States from using the domain (see NABP’s application at Section 18(a) IV*). This would exclude many licensed pharmacies which offer American consumers low-cost medicines of quality.

Whether a pharmacy is located in the United States does not determine whether a pharmacy is licensed and provides medicines of quality.

Consumer access to medicines depends in significant part on price and competition. It would be inappropriate to allow NABP to control such an important gTLD while it maintains exclusionary plans for the domain, which work against the consumer interest in a robust market of quality affordable pharmaceuticals.

The pharmaceutical industry has prioritized trying to shut down legitimate pharmacies selling safe Canadian drugs to U.S. consumers (as currently allowed by the U.S. Food and Drug Administration). But their tactics to achieve these anti-consumer goals involve censorship regimes allowing government seizure of domains, blacklists of sites, or suspended hosting services for legitimate competitors.

NABP supporters have justified their actions by preying on consumer fear of counterfeiters, when their real goals include shutting down sites providing cheaper legitimate drugs. Pfizer joined the assault on the Net in 2011, testifying to Congress that: "The major threat to patients in the U.S., however, is the Internet..." ...

NABP's supporters define "fake pharmacies" as those not registered with VIPPS, rather than only those selling actual counterfeit goods.

Canipre, as a company, offers to track down people who are illegally downloading copyrighted material from record companies and film studios. According to their website, they have issued more than 3,500,000 takedown notices, and their work has led to multimillion dollar damages awards, injunctions, seizure of assets, and even incarceration.

In a recent interview, Canipre's managing director Barry Logan explained that it's about much more than just money—he's hoping to teach the Canadian public a moral lesson:

"[We want to] change social attitudes toward downloading. Many people know it is illegal but they continue to do it... Our collective goal is not to sue everybody… but to change the sense of entitlement that people have, regarding Internet-based theft of property.”

So, just to be clear: Canipre has written "they all know it's wrong and they're still doing it." Referring to copyright theft. On top of an image that they are using without the permission of the copyright holder. On their official website.

Logan claimed that the company used a 3rd party vendor to develop their website and that the vendor had purchased the image from an image bank.

I pointed out to Logan that if that was true, he had basically paid his vendor to rip off other people's creative work. Logan told me that he would contact his web provider and have the image removed. He also told me that he would provide me with the name of the website developer and the name of the image bank where they obtained my photo.

“Before Twitter and social media, these things would have been said in a union hall and on a leaflet,” said COPE Ontario legal representative Glenn Wheeler. “The Charter of Rights provides for free expression, freedom of association. So we think we are in our constitutional rights to offer our version of the way we see things. That’s fair comment.”

Recently, the CPC used footage owned by the Huffington Post and CTV in a television advertising campaign directed at the Liberal Party of Canada. These advertisements are being aired nationally, including in Labrador where a by-election is currently being held. I understand from media reports that the CPC is using this footage without the copyright holders’ permission and presumably without paying the copyright holders to license the material. I understand that the licensing of copyrighted materials ordinarily comes at a cost.

I am raising my concerns with you because the CPC’s unauthorized use of this material, while inconsistent with our country’s copyright laws, may also be non-compliant with the Canada Elections Act (the “Act”). In my view, the unpaid use of copyrighted material is a “non-monetary contribution” to the CPC, as defined in s.2(1) of the Act.

We've seen lots of people try to use copyright for the sole purpose of shutting down criticism before, but this situation is unique because of just how weird Dion's argument is. He's not actually asking for the Conservative party to be penalized for infringing on copyrights, or for the commercials to be blocked because they are infringing — how could he? He's not the copyright holder. Instead, he's claiming that making unauthorized and also unpaid use of the footage constitutes accepting non-monetary campaign contributions from CTV and the Huffington Post, and is asking for an investigation based on election rules.

Firstly, this just makes the Liberal party look insecure. It's hard to believe there is any real concern about this as a campaign funding issue — it's an attempt to shut up critics, plain and simple. More importantly, commentary and criticism are protected under Canada's fair dealing laws just like they are under America's fair use laws, which rips the foundation right out from under this argument. The Conservatives have every right to use the footage in this way without a license, but Dion's request hinges on the idea that they didn't pay for a license when they should have. Even if that were true, the idea that using something without permission counts as a "contribution" from the rightsholder is bizarre on the surface and likely to baffle most people — even if the definitions in the Elections Act make it at least conceivable that such an argument could prevail. In a battle for the people's approval and support, devious policy tactics don't look any better than aggressive attack ads.

Moreover, what exactly does Dion want here anyway? For Elections Canada to start investigating a civil copyright issue that hasn't even been raised by the people with standing to do so? How would that even work? Without an accusation of copyright infringement from CTV or the Huffington Post, there's no basis on which to investigate this. So far, the only word from the two news organizations has been to confirm that they didn't give permission, and that they have "made our concerns known" — they haven't even actually said they think the use was infringing, let alone brought a lawsuit. And if the Conservatives were sued over copyright, and a court found them guilty of infringement and ordered them to pay, would this still be an illegal campaign contribution? Dion's whole argument is petty at best, and utterly paradoxical at worst.

Taken together with earlier moves, this latest ploy by a federal agency seems a part of an wider campaign to shut down public debate in Canada. Few politicians like to be criticized, or have the weaknesses of their plans exposed, but a country where people find it increasingly hard to express their views on government proposals is starting to take a dangerous road.

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Meanwhile, signals are emerging that another major EU free trade deal, the one with Canada, is also going nowhere:

Talks to wrap up a multi-billion-dollar free trade deal between Canada and Europe have stalled, diplomats said, raising concerns the agreement could be put on hold as Brussels switches its attention to a much bigger pact with the United States.

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Earlier Tuesday, Justice Minister Darin King said Rogers was a member of the Facebook group Kathy Dunderdale must GO!!! in which users had posted comments containing death threats against the premier.

"What kind of message is that sending to the people of the province, to our children in the province, when we talk about bullying and harassment and intimidation?" said King.

"I did not join this Facebook group," Rogers told reporters during the recess. Rogers said that she thinks that the government does not understand how Facebook groups work. "I was added to this group without my knowledge, without permission, and by somebody that I do not know," said Rogers.

"I'm not going to be bullied or intimidated into doing something that I don't think is in the best interests of the people in this province," said Dunderdale.

Access Copyright has decided to fight the law - along with governments, educational institutions, teachers, librarians, and taxpayers - on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online, the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are "arbitrary and unsupported" and that "authorize and encourage copying that is not supported by the law."

On Wednesday night, news broke that a 20-year-old “supporter of the student movement,” Jennifer Pawluck was arrested in Montreal for posting a picture to Instagram that she took of a graffiti wheat paste illustration that showed Montreal’s police commander Ian Lafrenière with a bloody bullethole in his forehead. According to the CBC, the image was thrown up on a brick wall in the Hochelaga-Maisonneuve neighborhood. And Jennifer Pawluck—not that this even matters—didn’t even draw the anti-cop graphic in the first place.

Jennifer Pawluck was picked up by Montreal police at her home Wednesday, questioned for several hours and then released on a promise to appear in court.

The picture depicts Montreal police commander Ian Lafrenière with a bullet hole in his head. Lafrenière was a bit of a lightning rod during last year's riots in Montreal due to his position as head of the Communications Division. While the image is violent and could be perceived as threatening, posting a photo of the graffiti on Instagram is hardly "harassment" in and of itself. As the Vice article points out, there have been plenty of other photos of this particular artwork uploaded to Instagram.

The police (unsurprisingly) have been less than forthcoming as to why Pawluck needed to be questioned for "several hours" about this photo. Here's what the department did have to say:

Spokesman Const. Dany Richer said the concern extends beyond just the posting of the photo, but said he could not go into further details.

“There are circumstances that surrounded the publication of this image, circumstances that we can’t reveal because it is still under investigation,” he said.

She has not been formally charged, but is scheduled to appear in court on April 17.

There's another way of putting that, which is: if you secretly conceive of an idea to make Apple a better company, and then secretly buy up a bunch of Apple stock, and then announce to the world “surprise! I have 12% of Apple's stock, and a brilliant idea that starts with a thematically appropriate lowercase i!,” and the stock goes up, and you make a lot of money – isn't that unfair? You got to buy stock at the low, pre-publication-of-your-idea price; the people who sold to you were bamboozled into selling out too low because they didn't know about your great idea. It almost “smacks of insider trading.”

Or something. I may not be doing this theory justice because I think it's silly: that great idea is your idea; why shouldn't you be able to make money off of it? (And why should anyone else?) The money is your incentive to come up with the idea in the first place, and do the hard ego-stroking work of pitching it to CNBC and the target company; if you had to share it with free-riders why would you take on the responsibility? We talked about this a little last year when there were vague rumors that the SEC was buying into it, and that they might require investors to disclose 5% stakes within 1 day of acquiring them (instead of the current 10 days), and include synthetic share ownership in computing the 5%, in order to make it harder for activists to secretly accumulate shares. I have not heard much about that proposal since, though I hesitate to assign any causality.

But last week in another, colder part of town, someone proposed the same thing. Canada, I mean. Canadian securities regulators proposed:

to provide greater transparency about significant holdings of issuers' securities by proposing an early warning reporting threshold of 5% [and disclosure of a 5% stake no later than the opening of trading on the next business day], requiring disclosure of both increases and decreases in ownership of 2% or more of securities, and enhancing the content of the disclosure in the early warning news releases and reports required to be filed. We are also proposing changes so that certain “hidden ownership” [i.e. synthetic ownership³] and “empty voting” arrangements are disclosed.

Current Canadian rules require immediate disclosure of a 10% stake, versus U.S. rules requiring disclosure of a 5% stake within ten days (which in practice allows you to secretly buy quite a bit more than 5% before disclosing – Carl Icahn got to 13% before disclosing his Herbalife stake, though he couldn't help himself from hinting at it beforehand), and neither U.S. nor Canadian rules currently require all derivatives to be included in that 5/10% calculation. So this would be rather a change.

Here's the rationale:

• it may be possible for a shareholder at the 5% level to influence control of an issuer;
• significant shareholding is relevant for proxy-related matters (for example, under corporate legislation, a shareholder can generally requisition a shareholders' meeting if it holds 5% of an issuer's voting securities);
• market participants may be concerned about who has the ability to vote significant blocks as these can affect the outcome of control transactions, the constitution of the issuer's board of directors and the approval of significant proposals or transactions;
• significant accumulations of securities may affect investment decisions;
• the identity and presence of an institutional shareholder may be material to some investors;
• a lower early warning reporting threshold will provide all market participants with greater information about significant shareholders and thereby enhance market transparency;
• a 5% threshold would be consistent with the standard of several major foreign jurisdictions; and
• changes in corporate governance practices have increased the need for issuers to communicate directly with beneficial owners. A lower threshold would provide reporting issuers greater visibility into their shareholder base and a greater ability to engage with significant shareholders earlier. It would also allow shareholders to communicate among themselves earlier.

I've bolded the ones that read particularly like “it's unfair for activists to profit from their ideas and investments if everyone else doesn't get an equal chance.”

So I mostly think that that idea is sort of irreducibly silly – people all the time make money by having ideas and don’t share with everyone else; Mark Zuckerberg didn't even share with the guys who had the idea – but there's also an empirical component to its silliness. The question is: if you're just a passive guy who invests in a bunch of companies, would you rather

• have activists prowling around your stocks, sometimes pushing up the stock price in companies you own and benefiting you, other times buying you out before pushing up the stock price and leaving you feeling like a chump, or
• have “market transparency,” much less risk of selling out to an activist before he goes public, but also much less chance of activism in the stocks you own?⁴

I'm not aware of answers to that precise empirical question but the related question – “do activists actually improve performance in the stocks they target?” – has been asked fairly often, and the answers seem broadly positive. Like, “we find that targets of high frequency activist hedge funds – those that target ten or more firms between fund inception and 2005 – experience better long-term stock and operating performance,” or “abnormal return around the announcement of activism is approximately 7%, with no reversal during the subsequent year,” or “top performing activist-focused funds produced an average return 53.04 percentage points greater than that of the MSCI World Index between 2006 and 2011.” Also the Journal had an article this week about how activists have outperformed the hedge fund index over the last few years, though apparently not the S&P 500, so take that for what it’s worth.

All of which suggests that for the average investor the value of letting activists do stuff secretly might outweigh the value of transparency, though it's not entirely clear. Here's one more data point: the proposed Canadian rule changes probably are in part due to Bill Ackman's proxy fight with Canadian Pacific, in which Ackman secretly accumulated 12.2% of the shares, some synthetically, before announcing his ownership. CP is up 95% since that announcement, making it not the most compelling advertisement for the evils of activist investing.

Activist Fights Draw More Attention [WSJ]
CSA: Proposed Amendments to Early Warning System and Related Take-Over Bid and Insider Reporting Issues [OSC]

1. Nor does step 4, for that matter, unless your idea was “sell the company,” which it often is.

2. Before they were iPrefs they were GO-UPS:

In 2012, Einhorn concluded his Sohn presentation by telling the audience that he’d invented something. It was a novel kind of preferred stock, he said, the characteristics of which could help certain companies unlock billions of dollars in value. He called his creation Greenlight Opportunistic Use of Preferreds, or—in case anyone missed his intent—GO-UPs.

Guys: it’s not a novel kind of preferred stock. It’s just the regular kind of preferred stock. The novelty would be convincing companies to do it.

3. Of interest only to me, probably, but the Canadians require disclosure of hidden ownership via an “equity equivalent derivative” like a total return swap or a contract for difference, but not a “partial-exposure instrument” like an option or a collar. What about Carl Icahn’s ~100% delta option trades? Well, the Canadians are aware of them, and “would generally consider a derivative to substantially replicate the economic consequences of ownership of a specified number of reference securities if a dealer or other market participant that took a short position on the derivative could substantially hedge its obligations under the derivative by holding 90% or more of the specified number of reference securities.” So it’s a delta test rather than a what-is-the-thing-called test.

Questions include: if you were an activist, would you be willing to buy 80%-delta cash-settled call options to beef up your stake secretly? Would you overpay for them? If you were a dealer, would you sell them? Would you overcharge for them? (Yes, right?) How would you hedge them? What vol would you use? Would you overhedge them? (That is, would you sell 80 delta call options and buy 90 deltas of stock figuring that, y’know, Carl Icahn announcing his position is gonna make the stock go up?) If you were a regulator what would you think about all that? Does it “smack of insider trading”? How would you know? What vol would you use? Show your work.

4. A further empirical question is: would this rule change significantly decrease activist investing in Canada? Again sort of unanswered empiricallyas far as I know; you could have a chain of reasoning that is like (1) reducing the stake you can accumulate secretly by 50% reduces your expected profits from activism by ~50% and (2) reducing expected profits from activism by ~50% should reduce expected quantity of activism by ~50%. I suspect both of those claims are exaggerated.

Other posts from Dealbreaker:

• Fed Tells Citigroup To Try Harder When It Comes To Avoiding Aiding And Abetting Criminals
• Short-Term Shareholders Aren’t Looking Out For The Long Term, And Vice Versa
• Banks Want A Chance To Prove Fannie And Freddie Knew They Were Being Lied To

The attempt to dress up this pompous control-freakery as moderate and reasonable -- "through no fault of the public servant" etc. etc. -- would be rather amusing were it not part of a much larger move by Canada's rulers to stifle dissent. Canadian scientists, for example, have been subject to these kind of humiliating restrictions for some time, as the BBC reported last year:

The allegation of "muzzling" came up at a session of the AAAS [American Association for the Advancement of Science] meeting to discuss the impact of a media protocol introduced by the Conservative government shortly after it was elected in 2008.

The protocol requires that all interview requests for scientists employed by the government must first be cleared by officials. A decision as to whether to allow the interview can take several days, which can prevent government scientists commenting on breaking news stories.

Sources say that requests are often refused and when interviews are granted, government media relations officials can and do ask for written questions to be submitted in advance and elect to sit in on the interview.

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During Question Period on Monday, Borg asked Industry Minister Christian Paradis directly if the bill paves the way for ratification of the discredited treaty:

Mr. Speaker, last July the European Parliament rejected the anti-counterfeiting trade agreement over serious concerns about the regressive changes it would impose on intellectual property in the digital age. Yet on Friday, the Conservatives introduced a bill in the House that would pave the way for the ACTA without question. Canadians have concerns about goods being seized or destroyed without any oversight by the courts. Will the minister now be clear with Canadians? Are the Conservatives planning to ratify ACTA, yes or no?

Paradis refused to respond to the ACTA ratification question:

Mr. Speaker, we are very happy to have introduced an anti-counterfeiting bill in the House. Counterfeiting is a growing problem in Canada. Counterfeiting deceives Canadians and is linked to security-related issues. So it was our duty to modernize the legislation to ensure that we can end counterfeiting, so that Canadians are not deceived, and to provide better security.

Borg tried again with a direct link between Bill C-56 and ACTA:

Mr. Speaker, a number of countries have rejected this unacceptable agreement. The anti-counterfeiting trade agreement - ACTA - was drafted behind closed doors and would incriminate the daily users of cultural content. This agreement will turn our border officers into instant copyright experts, without the adequate legal support. Canada must seriously study the problem of counterfeiting. However, the failure of Bill C-30 means that Canadians do not have faith in this Conservative government. Is Bill C-56 not simply a way to support ACTA through the back door?

Paradis ducks the question once again:

Mr. Speaker, let us be clear: Bill C-56 is a way to support and protect Canadian families.

Counterfeiting is a growing problem that must be stopped. Counterfeiting deceives Canadians and poses risks to the safety of Canadians. We must ensure that the legislation is updated and appropriate in order to equip the authorities with effective tools to fight counterfeiting, which is exactly what was introduced on Friday. If the NDP is responsible, I hope they will support us.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Diego Liatis, a Montreal gamer and entrepreneur, told Ars that he still plans on releasing a Counter-Strike: Global Offensive map of Berri-UQAM, the city’s most well-known metro station. He's moving forward—the map is due sometime in March 2013—even if it means a drawn-out lawsuit brought by the local transit authority.

“If you ask me to change the name of the station—forget about it,” Diego Liatis told Ars, starting the sentence in French and switching to English for emphasis. “I understand [copyright law]. But there are limits, such as the name of the station.”

Liatis said he planned on meeting in person with STM representatives later this week. While he is willing to alter the STM logo and a well-known piece of art that hangs above a track, he’s not willing to compromise on the name of the station or its layout.

“Either [the STM] opposes me and we’ll meet in court,” Liatis added. “Or [the agency] will be OK with it.”

The February 11 cease-and-desist letter reminds Liatis that the STM “had warned you that it did not authorize you to use its image nor reproduction of the station in question for this project,” adding that use of its name, acronyms, graphic symbols, and seal are “prohibited by law unless permission is granted by the STM.”

Simon Marin, a LAN ETS spokesperson, told Ars in an e-mail that the university, and by extension its LAN party event (LAN ETS), is "disassociating itself" from Liatis and his map. Marin did not provide any further explanation.

Liatis added that STM's media representative, Amélie Régis, expressed concern to him that releasing the map would allow it to be used by actual terrorists training for an actual attack. Régis also said it would be "insulting" to Montreal's Arab community.

UPDATE Tuesday 5:42pm CT: Régis finally wrote back to Ars, saying that she had never spoken to Liatis, and was "really surprised to read the opposite." Ars has contacted Liatis again to clarify who exactly he spoke with at the STM.

The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

The first is that this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

Encana Corp, Canada's largest natural gas producer, apologized on Thursday because one of its executives cursed after an analyst asked about whether new Canadian investment rules would prohibit its takeover by foreign state-owned entities.

When asked the question by Canaccord Genuity analyst Phil Skolnick, interim CEO Clayton Woitas said: "The answer would be no." Then, in a whispered comment that was clearly audible on a replay of the call, someone can be heard saying, "fucking asshole."

On Thursday, Chirbit founder Ivan Reyes said he has received a takedown request from Encana. Mr. Reyes has declined, citing fair use provisions in copyright law and a site policy directing that such requests be sent to the poster of audio.

Encana, in its request, says:

“Encana is the copyright owner of the Recording. It was expressly stated at the outset of the Conference Call that 'this conference call may not be recorded or rebroadcast without the express consent of Encana Corporation',” the letter states.

“The Recording has been posted without Encana’s consent. The unauthorized use of this Recording clearly constitutes copyright infringement. ... Encana views this matter extremely seriously and requests that you respond to the undersigned on or before the close of business on Friday, February 22, 2013, failing which, Encana will have no other recourse but to take all actions as may be available to it to protect its proprietary rights.”

“I think any individual or organization that has something embarrassing broadcast over the web without proper permissions would make any attempt to have that content eventually removed as, understandably, we do not wish to have that clip living on in perpetuity on the web,” he said.

To be clear, assuming there is no agreement to the contrary, the only aspect of the conversation posted that Encana may be able to claim copyright over is the three words said by its employees. Copyright to the question posed by the third party would belong to that third party unless the person who posed the question assigned it in writing to Encana.

For copyright to exist in a statement, the statement being copyrighted must be an “original… work”. The test for originality in Canada requires the author to exercise skill and judgement, where the skill and judgement exercised must not be so trivial as to be characterized as purely mechanical. While the qualitative test for a statement to be a “work” is low, there is a quantitative minimum that must be met for copyright protection.

The statements made by the Encana executives in this scenario do not qualify for copyright protection as they fail to meet both the criteria for a copyrightable work. The obscenity was not an exercise of skill and judgement. It was an impulsive response to a question that the speaker found insulting. In fact, if the speaker had exercised skill and judgement, it is likely that the he wouldn't have said the obscenity at all.

As Michael Geist points out, far from being good news, that's outrageous:

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

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We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems. We've listened to the concerns of Canadians who have been very clear on this and responding to that.

Third, even with Bill C-30 dead, there is a problem with the current system of voluntary disclosure of customer information by ISPs. The lawful access debate placed the spotlight on the fact that ISPs disclose customer information tens of thousands of times every year without court oversight. The law permits these disclosures, but there are no reporting requirements or accountability mechanisms built into the process. Those are needed and the government should move swiftly to add this to the law, either within Bill C-12 (the PIPEDA reform bill) or Bill C-55, which was introduced yesterday.

Fourth, Bill C-30 may be dead, but lawful access surely is not.  On the same day the government put the bill out its misery, it introduced Bill C-55 on warrantless wiretapping. Although the bill is ostensibly a response to last year's R v. Tse decision from the Supreme Court of Canada, much of the bill is lifted directly from Bill C-30.  Moreover, there will be other ways to revive the more troublesome Internet surveillance provisions. Christopher Parsons points to lawful intercept requirements in the forthcoming spectrum auction, while many others have discussed Bill C-12, which includes provisions that encourage personal information disclosure without court oversight.  Of course, cynics might also point to the 2007 pledge from then-Public Safety Minister Stockwell Day to not introduce mandatory disclosure of personal information without a warrant. That position was dropped soon after Peter Van Loan took over the portfolio. 

The case will not be heard before any ordinary national or even international court, with all that this implies in terms of transparency and fairness, but by a very special kind of tribunal:

The tribunals are comprised of three private sector attorneys, unaccountable to any electorate, who rotate between serving as "judges" and bringing cases for corporations against governments. The tribunals operate behind closed doors, and there are no conflict of interest rules. The tribunalists are paid by the hour and governments are often ordered to pay for a share of tribunal costs even when cases are dismissed. There is no limit to the amount of money tribunals can order governments to pay corporations. There are very limited appeal rights.

The central problem with these investor-state provisions is that they elevate companies to the level of entire countries. Secret, unaccountable and biased tribunals with unlimited powers then enable them to overturn democratic decisions and legislation passed to preserve things like public health or the environment, simply because they would reduce corporate profits. And yet few people are even aware that such investor-state provisions exist, despite their massive impact on the lives of millions. That's a hugely troubling combination for the future.

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a program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of a foreign state;

This provision would effectively legalize spyware in Canada on behalf of these industry groups. The potential scope of coverage is breathtaking: a software program secretly installed by an entertainment software company designed to detect or investigate alleged copyright infringement would be covered by this exception. This exception could potentially cover programs designed to block access to certain websites (preventing the contravention of a law as would have been the case with SOPA), attempts to access wireless networks without authorization, or even keylogger programs tracking unsuspecting users (detection and investigation). Ensuring compliance with the law is important, but envisioning private enforcement through spyware without the involvement of courts, lawful authorities, and due process should be a non-starter.

These claims are not substantiated by the scientific literature and have little acceptance from medical professionals and the scientific community. This activism therefore amounts to nothing more than fear-mongering by misguided special interest groups who are attempting to have these networks removed.

Nevertheless, the media has been all too willing to fan the flames of controversy and has contributed to a growing false uncertainty over the safety of WiFi. As a result many school boards, libraries, and town councils across Canada have been called on by concerned citizens to limit or remove WiFi networks.

I have received multiple reports (here, here,here) today that Amazon is now refusing to allow their Canadian customers to buy Kindle ebooks from Amazon.com.

Over the past couple days several of those readers have reported that many Kindle titles are showing up on Amazon.com as not being available to Canadian customers even though the same titles will show up on Amazon.ca as being available.

So far as I can tell, the only ebooks still available to Canadian Kindle owners are titles distributed via KDP, seriously limiting their ability to make use of their Kindles.

First, while Amazon claims that any purchased ebooks will be available* after a Canadian Kindle owner transfers their account that’s not completely true. The ebooks might be transferred, but I’m told that a customer’s purchase history is not transferred and the wish lists are also abandoned. That’s going to make it a lot harder for some readers to keep track of what they own and what they want to buy.

Oh, and that claim about the Kindle content transferring isn’t exactly true. Amazon.ca doesn’t yet support subscriptions, nor does it offer Kindle Serials. That means this Kindle content will be lost in the transfer process along with any back issues that had been saved. What’s more, Amazon.ca doesn’t offer music and video so transferring an account will prevent customers from accessing media they’ve already purchased.

After speaking to Amazon Kindle support they informed us that this change was not their doing. They said a change like this would have been made by the publisher only. One of the major publishers affected responded back to me saying, “It certainly wasn’t our intentional doing; although it may be a side-effect of our pricing model. I’ll investigate and see what I can do.”

While there is still a significant question as to whether TekSavvy should be taking a more direct role (as well as some pushback on that idea), today's events represent a victory for TekSavvy's customers, who now have someone (CIPPIC) taking up their cause, or at least trying to.

It also looks like the judge understands the complexity, and the gravity, of the situation. Apparently the judge has been asking questions about the specifics of what an IP address represents, the impact of Canada's new copyright legislation, and the overall implications of the case. The judge also suggested that this will not be resolved in a single day.

This case still has a long way to go, but it looks like we may be headed towards a full-scale test case for copyright trolling practices in Canada, with a judge who seeks a clear understanding of the issues at play. That, for now, is a good place to be.

Nobody would expect TekSavvy to personally defend each customer against accusations of infringement, and the company's statements so far seem to hinge on that idea as the reason it's not going to oppose Voltage's request in court. On the surface that might seem reasonable, but in fact it sidesteps the real issue: TekSavvy may not be responsible for its users' defence against infringement lawsuits, but it is responsible for protecting its users' privacy—and there are plenty of serious privacy issues with Voltage's motion that need to be addressed long before we get to the point of determining the actual guilt or innocence of individual users.

This isn't hypothetical. Howard Knopf explains the key legal comparison in this case—a 2004 attempt by BMG to get information on a mere 29 users from much larger ISPs. Not only did the ISPs oppose the motion, they won, and established important precedents in doing so.

Despite Teksavvy’s openness concerning this issue, questions are still bound to arise why Teksavvy is not actually opposing this disclosure motion in 2012, as Shaw and Telus actively and successfully did in 2004, with Bell and Rogers taking a similar if less vigorous position. In this regard, it is interesting to compare Voltage’s material with the BMG et al material filed in 2004 that was rejected by the Federal Court and Federal Court of Appeal at that time as inadequate in a very comparable situation, as a result of which we now have clear and binding appellate case law.

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The law about all of this was clearly laid out by the Federal Court of Appeal in 2005. Here is a very balanced discussion of this presented by myself and one of my worthy opponents in that case, Richard Naiberg. The key criteria for potential success in a disclosure motion such as this is that there must be substantial, admissible, non-hearsay, and reliable evidence in the form of affidavit material and at least a bona fide case.

A key intervener in that case was the Canadian Internet Policy & Public Interest Clinic, which fought hard for the privacy of the Doe defendants. CIPPIC also sent a letter to the court regarding this recent Voltage motion, requesting the adjournment that was granted Monday. That letter focused heavily on the factors established in the BMG case, and when you run through those factors, you begin to see why this is a privacy issue before it's an infringement issue. The court's disclosure test was designed to ensure that customer info isn't released without a solid reason—and perhaps the most important requirement is that there be a bona fide claim, further clarified as a true intent to pursue further action based on the disclosure, and no ulterior motive. When it comes to a shakedown operation like Voltage's, everyone knows that the exact opposite is true, and CIPPIC's letter (pdf) cites the company's past (while explaining precisely what a "copyright troll" is) to make this point:

On the question of bona fides, the plaintiff has identified literally thousands of John Does and Jane Does. BMG v. Doe involved only 29 potential defendants. It is worth asking the plaintiff if it holds a bond fide intent to bring 2000 actions for copyright infringement. As will be noted below, this plaintiff has a track record in the United States of demanding subscriber data of internet service providers for the purposes of demanding exorbitant payments to settle under threat of litigation, with no bona fide intent to prosecute such litigation. In CIPPIC’s view, this scheme does not meet the requirements of the need to show a bona fide claim, but instead is evidence of another purpose.

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the applicant has in the past engaged in similar mass litigation in the United States. The applicant’s business model for such litigation has earned it the label of “copyright troll”. Trolls’ business model involves alleging that consumers are liable for copyright infringement, and demanding compensation under threat of litigation. The compensation demanded invariably grossly exceeds the damages a troll might expect if the troll were to actually litigate and obtain judgement and a damages award. However, such compensation does not typically exceed the cost to a defendant of defending the action. Enough defendants will choose to pay rather than defend to make the scheme profitable to the troll. The troll typically never litigates through to a judgement, since the costs of doing so would render the scheme as a whole less profitable. The troll’s business model, thus, is an arbitrage game, exploiting judicial resources to leverage defendants’ fear and the costs of defending into a revenue stream. And, of course, no part of these revenues finds its way back to the court to offset costs borne by the taxpayer as the judiciary plays its inadvertent role in this scheme. In CIPPIC’s view, such a purpose is improper and bars the applicant from establishing a bona fide claim.

Not only that, as the letter notes, Voltage's motion accuses the users of commercial infringement—a much higher bar carrying much higher potential fines. This accusation seems completely unsupported by the evidence (which amounts to little more than "these IP addresses were connected to BitTorrent swarms") and even less likely to qualify as a bona fide claim.

Since we've been seeing lots and lots and lots of US judges slamming copyright trolling operations and dumping their cases, there's clearly an opportunity here for Canadian courts to smack down this practice before it gets off the ground—or re-assert their earlier smackdown, anyway. But the only way that can happen is if someone actually opposes Voltage's request (CIPPIC's letter was just supporting a delay). TekSavvy is still insisting it won't be them; CIPPIC might seem the logical candidate, and I'm sure they'll do what they can, but it's unclear how much they will be allowed to intervene if none of the directly-involved parties put up a fight. The only other option is the customers themselves, once TekSavvy notifies them—but, of course, the whole point of this scheme in the first place is that most people can't afford to take on a complex legal battle.

So will Voltage waltz right past the clearly-established test for the disclosure of private information? If TekSavvy doesn't do anything, they just might.