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Jay Currie

One Damn Thing After Another

11/15/2004

Battle Stations!

Captain Flynn sends the alert that the busies at Heritage Canada are getting ready to attempt to pass a law which will allow pretty much anyone who claims any sort of copyright in anything to tell your ISP to take down material that they alledge violates their copyright. First, go and read Flynn's summary.

How bad is the proposed law....go read Boing Boing's Cory Doctorow.
But WIPO got it horribly wrong. The approach that WIPO took to regulating the net was to create a set of rules that tried to make the Internet act more like radio, or TV, or photocopiers -- like all the things that it had already made rules for. The WIPO approach treated the ease of copying on the net as a bug, and set out to fix it.

Notice-and-takedown is an area where WIPO got it drastically, terribly wrong....

If you allow users to host stuff, you're responsible for what they host. If they put an infringing file on your server, you're required to know what they've put online, and you'll share in their punishment if you fail to block them from posting infringing material.

Now what is and isn't a copyright infringement isn't anything like a clearcut issue. ISPs aren't equipped to evaluate what's infringing and what isn't -- hell, even Supreme Court judges have a hard time figuring it out. Operating a server doesn't qualify you to understand and evaluate copyright law.

So there's a get-out-of-jail in notice-and-takedown. If you respond to accusations of infringement by taking your customers' materials offline quickly, you won't share in their liability. Now, given the kinds of penalties available to rights-holders for online infringment (in the US, it's $150,000 per infringement!), it's not surprising that most ISPs avail themself of this "safe harbour," removing stuff whenever a complaint comes in.

But a complaint isn't proof -- someone who rings up your ISP and says, "That file infringes on my rights" is like the guy who busts into a restaurant and shouts, "That guy is wearing my hat!" There's no way for an ISP to evaluate whether he's genuinely aggreived, whether he's nursing a grudge, whether he's just a nut. In the US, nuts, grudge-nursers and flakes all use notice-and-takedown to censor the Internet and get material removed.
boing boing
Now there are lots of petitions to sign. Which might help. But the real deal here is to get to the politicians - Liberal, Tory, Bloc and NDP - and point out that this law will simply ensure that Canada ceases to be a country involved with the internet.

What amazes me, and I am just coming up to speed here, is that the major ISPs - Rogers, Shaw, Bell - are not up in arms. This is potentially much more devastating than the P2P music sharing arguments where they fought the good fight and won.

The good news is that this is currently a report of a Commons Committee so there is time to mobilize and defeat this absolutist approach to internet copyright. The better news is that - so far - there is nothing to stop a Canadian from hosting a website or blog in another country. A fact which seems to have escaped the Parliamentary geniuses.