Michael Geist's year in tech law A-Z [ip][sp]]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject:        The Year in Tech Law from A to Z
Date:   Mon, 20 Dec 2004 11:26:13 -0500
From:   Michael Geist <mgeist () pobox com>
To:     Declan McCullagh <declan () well com>
References:     <419EAB38.3090905 () well com>



Declan,

Of possible interest to Politech -- my weekly Toronto Star column covers
the year in technology law from a Canadian perspective.  The column
highlights several leading cases and policy initiatives including
copyright and privacy decisions as well as other noteworthy developments
involving domain names, VoIP, spam, and patents.  Column at

<http://geistatozyearinreview.notlong.com/>

MG

Banner year for digital decisions

Michael Geist
Toronto Star

This past year saw several landmark developments in Canadian technology
law. The Supreme Court of Canada released a trio of important rulings,
federal policy makers grappled with difficult issues such as copyright
and spam, and the Canadian Radio-television and Telecommunications
Commission (CRTC) held hearings to consider the optimal regulatory
approach to emerging technologies such as satellite radio and Internet
telephony. Collectively developments from A to Z are certain to have a
profound impact on Canadian law and policy for many years to come.

 *A is for Abika.com,* a U.S. company that collects and uses Canadians'
personal information. The company was the subject of a complaint to
Jennifer Stoddart, the Privacy Commissioner of Canada, who set some
troubling limits on the scope of Canada's privacy law by ruling that she
was unable to investigate the matter since Abika.com does not have a
physical presence in Canada.

*B is for Bangoura v. Washington Post,* a controversial Internet
jurisdiction decision released by the Ontario courts in February. The
court ruled that Cheickh Bangoura, a former African U.N. official, could
proceed with a defamation suit against the Washington Post concerning an
article first published in 1997. The case, which is currently under
appeal, raised fears of a chill on free speech among media companies
worldwide.

*C is for the Canadian Football League's* Ottawa Renegades, who were the
target of Canada's first spam complaint launched with the Privacy
Commissioner of Canada (in the interests of full disclosure, I was the
complainant). The Commissioner ruled that the football team's practice
of sending unsolicited commercial e-mail to e-mail addresses harvested
from a publicly-available Web site violated Canada's privacy legislation.

*D is for Diners Club International,* which emerged victorious in one of
the strangest domain name dispute resolution decisions in recent memory.
A Canadian domain name dispute resolution panel ordered two domain names
- diners-club.ca and dinerscard.ca - transferred to the credit card
issuer despite the absence of evidence that the domains were registered
in bad faith, a condition mandated by the Canadian dispute resolution
policy.

*E is for Mathew Englander,* who successfully challenged Telus' privacy
practices in connection with its unlisted phone number policy. Although
unsuccessful with both the Privacy Commissioner of Canada and the
Federal Court of Canada's trial division, Englander proved his skeptics
wrong when the Federal Court of Appeal ruled in November that certain
aspects of Telus' consent process failed to comply with Canada's privacy
law.

F is for the Broadcast Flag, a U.S. requirement that all televisions,
videotape recorders, and computers with digital-TV tuner cards
distributed after July 2005 be wired to control copying of over-the-air
digital television signals. In August, a Canadian official indicated
that Canada was considering following the U.S. approach, despite
significant copyright and technological innovation concerns.

*G is for the Globe and Mail*, the newspaper embroiled in a longstanding
copyright dispute with Heather Robertson, a freelance author. The
Ontario Court of Appeal ruled in Robertson's favour in October,
concluding that the use of Robertson's work within the Globe's databases
fell outside of its copyright.

*H is for the Canadian Heritage Parliamentary Committee*, which issued a
series of copyright reform recommendations in May. The recommendations
generated considerable controversy as the Canadian education community
noted that if Industry Minister David Emerson and Canadian Heritage
Minister Liza Frulla adopted the proposals, millions of dollars would be
siphoned out of Canadian schools. Consumer groups, scientists, and
privacy advocates also expressed fears that implementation of the
reforms would harm personal privacy, research and innovation, as well as
consumer rights.

*I is for iTunes*, the online music service that finally launched in
Canada following months of anticipation. While the Canadian Recording
Industry Association (CRIA) once claimed that the commercial services
would not enter the Canadian market without copyright reforms, Canadian
consumers can now choose from several commercial services, including
Puretracks, Napster.ca, and iTunes, as well as download for private
copying purposes from peer-to-peer services.

 *J is for Judy Marsales*, an Ontario MPP who introduced the province's
first anti-spam bill. Marsales' proposal was one of several anti-spam
measures proposed in Canadian legislatures in 2004.

*K is for Konrad von Finckenstein*, the federal court judge who stunned
the Canadian music industry in March by rejecting their demand that
Internet service providers identify 29 alleged file sharers. Von
Finckenstein concluded that the industry had failed to tender sufficient
evidence tying the alleged infringements to the 29 individuals. He
further raised doubts about whether the industry had demonstrated
copyright infringement under Canadian law.

 *L is for the Law Society of Upper Canada*, which won the most
important copyright case of the year. In March, the Supreme Court of
Canada ruled that the LSUC had not infringed the copyright of several
legal publishers by providing photocopy facilities and services at its
Great Library in Toronto. In doing so, the court provided a strong
affirmation of the need for balance in copyright law and for respect of
user rights to maintain that balance.

*M is for Monsanto Canada,* which emerged victorious in its patent
dispute with Saskatchewan farmer Percy Schmeiser. The Supreme Court of
Canada ruled in May that the company held a valid patent for its
genetically modified seed, though it limited the potential recoverable
damages in the dispute.

*N is for the No-call list*, which the federal government introduced in
December. The proposed legislation mirrors regulations found in the U.S.
that allow consumers to register their phone number on a do-not-call
list. The U.S. list now contains more than 66 million phone numbers.

*O is for Outsourcing* and the controversy surrounding the privacy
implications of the USA Patriot Act. Faced with growing public concern
about the protection of their personal information, the British Columbia
government introduced legislative amendments in the fall designed to
block foreign access to certain personal health information of its
residents. Notwithstanding the outsourcing community's objections that
the legislation would be bad for business, the issue quickly attracted
attention from privacy officials across the country.

*P is for Internet Pharmacies* and the increasing pressure placed on the
Canadian industry. While the pharmaceutical industry stoked fears of
drug supply shortages in Canada, several U.S. states took steps to
encourage the availability of Canadian-sourced pharmaceuticals.

*Q is for Quebec Court of Appeal Justice Danielle Cote* who surprised
the Canadian broadcasting community by overturning the section of the
Canadian Radiocommunication Act that bans the importation of satellite
TV signals except through a domestic dealer. The court ruled that the
Act violates freedom of expression provisions found in the Canadian
Charter of Rights. The government is appealing the decision.

*R is for Ringtones*, which now constitute 10 per cent of the global
music market. SOCAN, a leading copyright collective, applied for a new
tariff of 10 cents per ringtone to compensate songwriters, a proposal
opposed by CRIA. The Copyright Board of Canada has scheduled hearings on
the proposed tariff for February 2005.

*S is for Bill S-9*, a photography copyright reform bill introduced by
Senator Joseph Day in October. The bill moved quickly to a Senate
committee but soon after stalled, beset by concerns from groups that the
changes would harm consumer rights.

 *T is for the Tariff 22 decision*, the Supreme Court of Canada's July
ruling focusing on the liability of Internet service providers for music
downloading that occurs on their networks. The court sided with the
ISPs, ruling that they qualify for exemption under the Copyright Act
when they act as intermediaries in the transfer of data.

*U is for unsolicited commercial e-mail*, better known as spam. The
federal government unveiled its anti-spam action plan in May. The plan
included the establishment of a national anti-spam task force (I am a
member of the task force), which considered legislative, technical, and
educational solutions to the spam problem.

*V is for Voice-over-Internet telephony*, which took centre stage during
a three-day hearing before the CRTC in September. A ruling on the
regulatory framework for the fast-growing VoIP market is expected in
early 2005.

*W is for Weir v. Vaquero Energy*, an Alberta Internet defamation case
that raised the prospect for significant damages for online libel. The
court ruled that defamation online was particularly troubling, and
surprisingly awarded the plaintiff both general and punitive damages.

 *X is for XM radio*, one of several new prospective satellite radio
providers. The CRTC conducted hearings on the entry of satellite radio
into the Canadian market in the fall, with Canadian artists expressing
support for the opportunity to have their music reach a broader audience.

*Y is for Yahoo*, which launched a major spam lawsuit against the
Kitchener-based Head family. Yahoo filed the suit in the United States,
relying on provisions found in the U.S. CAN-Spam Act. The company
accused family members of sending 94 million spam e-mails, in violation
of U.S. anti-spam legislation. After Yahoo reached a settlement with the
family, Microsoft and Amazon.com soon followed with similar suits of
their own.
*Z is for Zyapex* and Dyapex Diet Patches, products that were the
subject of a false claims investigation by the Canadian Competition
Bureau. In December the Bureau settled the complaint by extracting
conditions from the patch promoters that included a ban on using spam to
market the products.

--

**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca
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