FairPlay Canada, the CRTC and OpenMedia: Who Got the “Big Win” on Pirate Site-Blocking?

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The CRTC’s decision on October 2 to deny FairPlay Canada’s application to implement a proposed website-blocking regime to address copyright piracy has not ended the issue although it has brought this phase of the process to a conclusion. The CRTC determined that it did not have jurisdiction under the Telecommunications Act to implement the proposal. This being the case, it denied the application without considering its merits. However, in its ruling the CRTC stated;

“The Commission acknowledges that there is evidence that copyright piracy results in harm to the Canadian broadcasting system and to the economy in general.”

The decision continued;

“However, there are other avenues to examine the means of minimizing or addressing the impact of copyright piracy, including the ongoing parliamentary review of the Copyright Act and the expert panel review of the Telecommunications Act and the Broadcasting Act.”

In other words, as prominent IP lawyer Barry Sookman put it, the CRTC “punted” the issue to Parliament. This will be the next forum for dealing with this issue and no doubt the same line up of supporters and opponents will engage in the debate on whether and how to block offshore pirate websites.

Recall that the FairPlay Coalition was established back in January of this year with several major unions, the public broadcaster CBC, five of the six largest national telecommunications providers, specialized TV providers, a major sports entertainment company, the country’s largest film festival, several major cinema exhibition chains, independent cinema operators, independent film producers and a combination of English-language, French-language and ethnic media coming together to petition the CRTC to take action on the growing problem of offshore streaming piracy. It has subsequently grown to more than 30 members with all national telecom providers now supporting the proposal (the lone holdout had been TELUS which filed a letter of support at the end of March). The proposal was to establish a transparent and representative adjudicative body, to be called the Independent Piracy Review Agency, to review the conduct of sites brought to its attention by stakeholders, and then to recommend to the CRTC (which the Coalition claimed had the legal authority) to order ISPs in Canada to block access to sites that were “blatantly, overwhelmingly or structurally engaged in piracy”. This would be similar to regimes that disable access to content-theft offshore websites that have been successfully established in a number of countries around the world, including notably the U.K. and Australia. As I noted at the time, the bringing together of such a disparate group of Canadian cultural industry stakeholders in support of a common goal like combatting online streaming piracy was a case of “hanging together or hanging separately”.

After FairPlay Canada filed its case, the CRTC received over 150,000 interventions. Over 140,000 of these (all opposing the proposal) were generated by just three civil society organizations, with Open Media being the most prolific having spammed the CRTC with its online petition 83,000 times. This is similar to Open Media’s tactics with respect to the updating of copyright legislation in Canada and the terms of the IP chapter of the new NAFTA agreement (now called the USMCA). In fact, Open Media is now taking credit for the CRTC decision to deny the application bragging that;

“This is a big win for the open Internet, and a true demonstration of democracy in action…..The campaign against website blocking, led by OpenMedia, Sum of Us, and LeadNow, included a national Day of Action on February 28, which saw over 50,000 submissions into the CRTC’s consultation page, tens of thousands of tweets sent to FairPlay coalition members, and significant media coverage.”

As David Lowery of the Trichordist has ably documented and demonstrated, Open Media allows anyone, Canadian resident or not, to pose as a resident of Canada (by simply entering a postal code) and then to send repeated submissions to Parliament, MPs, the CRTC or whoever their target audience may be by a simple click of a mouse, using the browser back-button to resend…and resend….and resend.

Open Media’s “big win” was actually a jurisdictional decision where the CRTC did not consider the merits of the FairPlay Canada application (because it determined that it did not have jurisdiction) while acknowledging the damage that piracy is causing to the Canadian broadcasting system and economy.

Be that as it may, don’t expect facts and logic to get in the way of Open Media’s ongoing campaign against disabling pirate websites, including the CRTC’s suggestion that site blocking be dealt with during the review of the Copyright Act. These masters of spamming and astroturfing don’t really rely on facts but instead prefer to “frame” issues to substitute “morals, values and identity” for facts, logic and reason. That means using hyperbole, scare-mongering and misleading information instead of arguing the issues on their merits.

What will happen now? Amending legislation and using the courts to achieve the goal of blocking pirate sites was always one alternative. In its response to interventions on its original application, FairPlay examined the possibility of using legal alternatives and concluded that under current Canadian law it would take over two years (750 days) and cost around $260,000 to obtain a single blocking order! That is clearly ridiculous, and if the CRTC won’t assert its jurisdiction and permit the establishment of a piracy review agency (which would have allowed an effective, transparent and streamlined decision-making process), then legislative amendments are going to be required (as happened in Australia) to make the court route a more realistic alternative.

In testimony to the Parliamentary committee that is taking evidence in preparation for possible revisions to the Copyright Act, three of Canada’s major ISPs (Bell, Rogers and Shaw) have all called for new measures to combat streaming piracy and facilitate pirate site blocking. Proposals range from amending the Copyright Act’s civil remedies to clarify the Federal Court’s authority to block access to websites found to be infringing, to making it a criminal violation for a commercial operation to profit from content theft and to provide injunctive relief against all intermediaries that form part of the online infrastructure distributing stolen content by recommending a new provision specifically empowering courts to order intermediaries to be part of the solution rather than part of the problem. This would apply to intermediaries such as ISPs, web hosts, domain name registrars, search engines, payment processors, and advertising networks. It would mean in practice that a new section of the Copyright Act would allow a court to issue an order directly to, for example, a web host to take down an identified dedicated piracy site, a search engine to delist it, a payment processor to stop collecting money for it, or a registrar to revoke its domain name.

It is clear that if the CRTC doesn’t want to handle this hot potato, Parliament and the courts will have to do it. Will this stop the criticisms of the anti-copyright crowd, including the prolific Michael Geist who has churned out more than 25 blogs on the subject of why the FairPlay Canada proposal is a bad idea? I doubt it, but among his criticisms is the fact that the proposed independent agency to identify pirate sites was outside the court system. According to Dr. Geist;

“One of the most obvious problems – indeed one that is fatal – is the absence of court orders for website blocking”

Maybe he will get his wish, and the system will be implemented by court order. If that happens, as I noted in an earlier blog, look for a new range of anti-copyright protection arguments to be invented.

At the end of this long road, hopefully Canada will join the twenty or so other economically and culturally advanced countries that have already implemented site-blocking solutions in one form or another. That would indeed be a “big win” for the content industries in Canada, for Canadian creators and for Canada’s economy.

© Hugh Stephens 2018. All Rights Reserved.

The new NAFTA (USMCA): What it means for Copyright Industries in Canada

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The first stage of the long saga of NAFTA renewal is over. Agreement in principle was achieved at the 11th hour on September 30 when Canada joined the previously agreed US-Mexico Agreement, just prior to the US Administration’s deadline imposed because it needed to notify Congress of the text of the Agreement by October 1. It has been relabelled as the US-Mexico-Canada Agreement (USMCA) since, in the US at least, NAFTA is a dirty word despite the fact that much of the agreement preserves what was in the original NAFTA Accord. Continue reading “The new NAFTA (USMCA): What it means for Copyright Industries in Canada”

The Ius Imaginum of Ancient Rome: Was it the first Copyright Law?

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As any student of copyright knows, we can trace copyright law back to the Statute of Anne in 1709, (entered into force on April 10, 1710 as the Copyright Act of 1710), when the British Parliament passed the first legislation to protect the rights of British book publishers. The initial period of protection was 14 years. According to “commonly accepted wisdom” (i.e. Wikipedia), this was the first statute to provide for copyright regulated by the government and the courts, rather than by private parties. From there, copyright law evolved into the national and international regime that we know today, including its inclusion in the US constitution as Article 1.Section 8. Clause 8., giving to Congress the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Is the Statute of Anne the first legislation to protect copyright as the expression and reproduction of ideas and images? I always thought so. After all, that was what Wikipedia said so it must be true! Continue reading “The Ius Imaginum of Ancient Rome: Was it the first Copyright Law?”

Opening the Book on Open Media

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In last week’s blog I talked about the role of Open Media in trying to undermine the democratic process and manipulate political opinion by orchestrating widespread anti-copyright astroturfing campaigns in Canada and elsewhere. It’s not just the damage to democracy from the hijacking of the normal political process that gets under my skin, it is the barefaced hypocrisy of a group that claims to be a champion of freedom of expression.  Continue reading “Opening the Book on Open Media”

Did Google Astroturf Group Fail to Report Copyright Lobbying to Canadian Authorities?

I recommend this blog from David Lowery’s The Trichordist to readers of my blog.

The Trichordist

A few weeks ago this blog on the website of Michael Geist caught my eye.  Michael Geist is anti-copyright activist/professor at University of Ottowa and I generally try to keep up with his writings.  In this blog he claimed that lobbyist data showed groups representing artists and other copyright holders represented the vast majority of registered copyright lobbying meetings with Canadian officials.  Registered is the key word here. Bookmark that and we’ll come back to it in a minute.

While Geist might be technically right I don’t really get the point of the blog. What is so outrageous? It should be no surprise that artists and rights holders in Canada are actively lobbying their government on copyright. The 2012 Copyright Modernization Act, Notice and Notice, and lax enforcement of online piracy have been a disaster for Canada’s creators. So-called “copyright reforms” have further decreased revenues for many artists with academic authors particularly

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Clicktivism is taking over the Canadian copyright debate

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How a supposed grass-roots movement has used the latest technology to give the impression of huge local groundswells of public opinion against protections for intellectual property.

Open Media is at it again. This Vancouver-based self-described advocate of Internet freedom, an organization that claims to believe in “participatory democracy” and “freedom of expression,” has been busy manipulating public opinion and trying to influence lawmakers in various countries, including Canada, with spurious astroturfing campaigns against copyright protection.

It has been caught red-handed more than once engaging in these activities and is unapologetic, even bragging about its successes on its website using euphemisms such as “crowdsourcing” and the “engagement pyramid” to justify its actions.

What is astroturfing? This is now the term of choice to describe the use of technology to create the pretence of widespread public support, or protest. It is usually used in the negative sense, to create the impression of a “groundswell” of public opinion against a particular measure that is under public discussion.

According to the Office of the Lobbying Commissioner in Ottawa, Open Media is “a national, non-partisan, non-profit organization working to advance and support an open and innovative communications system in Canada.” But that’s not the whole story. Open Media is part owner of NewMode.net, a for-hire entity which facilitates and mounts large-scale online campaigns designed to give the impression to the target audience (e.g., Members of the European Parliament [MEPs]; Canada’s Standing Committee on Industry, Science and Technology which is reviewing Canada’s copyright laws; Members of the US Congress) that there is a rising grassroots movement, in this case against copyright protection. New Mode describes itself thusly:

“We founded one of the world’s largest and most successful online campaigning organizations, OpenMedia, and led campaigns for progressive advocacy organizations and politicians. Our founders saw the power of community-driven campaigns first-hand.

Now, we’re putting the powerful tools used by the world’s leading campaigns into more campaigners’ pockets.

New/Mode was born to help progressive organizations activate grassroots power and win more change.”

In a recent case of Open Media astroturfing, meticulously documented by blogger David Lowery in The Trichordist, New Mode/Open Media was behind much of the misinformation spread by anti-copyright elements in Europe against the EU’s proposed Article 13. Article 13 was one element of proposed revisions to EU copyright law that would require websites who primarily host content posted by users to take “effective and proportionate” measures to prevent unauthorised postings of copyrighted content or be liable for their users’ actions. As a result of an online lobbying campaign led by Pirate Party MEP Julia Reda and facilitated by New Mode/Open Media, which focused on the claim that Internet companies would become “censorship machines,” in early July EU lawmakers narrowly rejected the proposal. The good news is that after further discussion and amendments, it was passed resoundingly on September 12, a victory for content creators. However, further steps are still required before it becomes law and major astroturfing can be expected as opponents rally against the most recent vote.

Some of this astroturfing will undoubtedly be facilitated and directed by Open Media. As outlined by Lowery, Open Media offers the following services: one-click calling (put in any postal code that you want and masquerade as a constituent, even if you are a non-resident), one-click email, one-click faxing, “storm social” (tweetstorms), automated letters to the editor (of local newspapers in any country-take your pick), cloned websites (to create the impression of many grassroots organizations), and so on. You can get the “full toolkit” for just $529 per month. And in case you had forgotten what you were protesting against, it’s all laid out in “Suggested Talking Points.” As Lowery puts it, it’s “fake grassroots.”

Open Media has been engaging in these tactics for a while, all the time wrapping itself in the cloak of Internet freedoms. It has been behind campaigns against the Trans-Pacific Partnership (TPP) and now NAFTA. As I documented last year, it camouflaged itself as an American organization to mount a campaign against proposals to strengthen US copyright law. Open Media has been an active campaigner against the proposal launched by a coalition of Canadian cultural industries, (known as FairPlay Canada) ranging from the CBC to Canadian Asian media, major Canadian ISPs such as Bell and Rogers, cinema chains and TV production companies and others, to establish a mechanism to recommend to the CRTC that offshore websites blatantly and overwhelmingly based on pirated, copyright infringing content be blocked in Canada. Just in case those visiting the Open Media website cannot remember precisely why they are protesting a proposal that aims to limit illegal activity, Open Media has provided the following inflammatory and inaccurate talking points:

“This proposal would result in sweeping Internet censorship, penalize everyday online activities, and threaten Canada’s Net Neutrality rules that keep the Internet a level playing field for all. This is simply unacceptable, and not the Canada that I want to live in….This proposal is downright dangerous. It’s a slippery slope to censorship. To start blocking one type of content opens the door for all kinds of other requests to block content — some of which may be legal, but just unpopular…This goes against free expression, Net Neutrality, and the open Internet as a whole — it even has the potential to violate the Charter of Rights and Freedoms.”

All one had to do was sign the petition and click, allowing Open Media to generate several thousand “submissions” to the CRTC on this topic. MLI Munk Senior Fellow Richard Owens, one of Canada’s leading experts on IP law, identified this phenomenon clearly in his own submission to the CRTC on the FairPlay Canada proposal, dissecting the false information provided by Open Media and showing how 25 percent of the submissions received by the CRTC could be traced directly to Open Media’s website and Reddit feeds, all based on incorrect and misleading information.

It is not just that Open Media is actively engaged in subverting the political process, a fact that has now been documented by outlets such as the Times of London, Daily Mail and others, but that their self-proclaimed motivation is to undermine decision-making based on facts, reason and logic, “framing” the issues to substitute “morals, values, and identity.” In other words use emotive and hyperbolic slogans to overcome the facts. If you don’t believe me, have a look at this slide deck on how to mount an astroturfing campaign previously available on Open Media’s website. Who needs facts, reason and logic? Bring on the slogans!

What happens when it’s time for these hordes of supposedly passionate defenders of “online rights” to show themselves? They usually number in the dozens, not tens of thousands. In the case of the “Day of Action” against the EU Copyright Directive organized last month in cities across Europe, turnout ranged from a total no-show in some cities to a maximum of 100 people in Berlin, the supposed centre of the protests. Compare this to the over 6 million emails received by European lawmakers protesting the EU Copyright Directive, and you get some idea of the power of bots.

This is not just happening in Europe. It is happening in real time in Canada, powered by Open Media. The most recent iteration occurred just recently when Open Media was behind a swarm of more than 22,000 emails sent to the office of Foreign Affairs Minister Chrystia Freeland proclaiming that NAFTA would be a “disaster for Canada’s digital rights.” Using the usual hyperbole, Open Media’s online campaign, which urged people to send an email to Ms. Freeland (with just one click), claimed that the terms of the just-released US-Mexico agreement would “hurt the middle class and working families, cost our economy hundreds of millions, and greatly restrict our freedom to express ourselves online.”

Open Media claimed that the proposal includes a notice-and-takedown regime (true for Mexico, but not necessarily for Canada which negotiated a different outcome in the TPP) and extends copyright terms to 75 years. The latter was an inaccurate representation of what was published (see further analysis of what was proposed here), although extending the term of copyright protection in Canada would be of benefit to Canadian creators. Not content to be flinging around inaccurate information, the Open Media pitch added the ominous phrase, “and that’s only what they’re telling us. Even more disastrous measures could be hidden in the secret details.”

As Blacklock’s Reporter has revealed, last week’s email swarm almost equalled all the other traffic on this issue received by Global Affairs since June. Worryingly, as David Lowery recently demonstrated, the Open Media website allowed one to masquerade as a Canadian resident and submit comments over, and over, and over again, with just a click of the back button. Laura Tribe, Open Media’s Executive Director admitted to Blacklock’s Reporter that it was possible for one person from any location to send multiple emails to the Minister’s office (while pretending to be Canadian), but she noted that the feature had now been disabled. Long overdue I would say.

It’s time to call out the tactics of spamming government and swamping the consultation process with automated simplistic messages. And it’s time to ‎put facts, reason and logic – instead of inflammatory slogans, misinformation and crass manipulation of public input – back at the centre of policy debates when it comes to Internet governance.

© Hugh Stephens 2018. All Rights Reserved. This commentary was originally published in Inside Policy.

 

NAFTA and the Cultural Exception

photo credit: http://www.cbc.ca

As we enter another frantic week of NAFTA negotiations between Canada and the US designed to keep Canada in a trilateral accord after Mexico and US concluded their own bilateral agreement in late August, the old chestnut of culture has once again resurfaced. For Canada “culture” in trade terms means the ability to maintain discriminatory provisions in the areas of ownership, subsidies and regulation in order to protect Canadian “cultural industries”. Cultural industry is a flexible term but in trade terms generally refers to broadcasting and publishing–although clearly culture goes well beyond these industries. Continue reading “NAFTA and the Cultural Exception”