The Jian Ghomeshi trial has started and is being live-tweeted - very ably I might add - by various journalists. Some are more impartial than others. BUT what does live-tweeting have to do with the presumption of innocence?



Everything.

The presumption of innocence is one of the most inconvenient concepts of modern democracy.

It's the reason we have 10 day trials, costing untold amounts of tax-payer dollars. It's the reason we have legal aid. It's the reason judges are paid so much (judges set their own salaries so that they can be independent of government). Then there's the appeals. Cha-ching. Cha-ching. I can just see the dollar signs floating in the air.

Do you know what would be more convenient? Putting people in jail when we're were pretty damn sure they did the thing. We could use Twitter. All those who think Jian Ghomeshi is guilty tweet this:

We'll tally them all up and majority rules. No point going through this pesky trial.

Do you know what else is inconvenient? Democracy and the rule of law.

It would be so much easier if I was in charge. We could do away with the inconvenience of elections and all this fiddle faddle withe the senate. We'd be losing a lot of theatre, but we'd be gaining a matriarch. Think about it... our own royals.

I would be a benevolent dictator of a neoliberal, secular, totalitarian, autocratic, magocracy. I would do the right thing and make all my decisions based on the good of society as a whole.

I wouldn't even take a salary, people. Just feed me and I'll handle it all.



This seems ridiculous, and it is ridiculous. Getting rid of democracy because it's hard is ridiculous. Just like putting someone in jail when we're pretty sure they did the thing is ridiculous - BUT this is basically what you're asking for when you convict someone in the court of public opinion - which these days means Twitter.

I commend journalists like Sarah Boesveld (@sarahboesveld) for their efforts to be impartial - it's hard. The accounts of the first witness make it hard. The first witness says the accused pulled her hair and punched her in the head multiple times. She became emotional on the stand. Anybody with a shred of empathy was feeling something, anything, for what she says she went through. And then to be cross examined by a scary lawyer?

Seriously... look at this lady - her shoes cost more than my house.

Cross-examination is a frightening experience at the best of times, but I imagine being cross-examined by Marie Henein is a different struggle all together. (As a side note, I found Marie Henein's cross-examination today to be effective and surgical, by the account I read. This lawyer is doing her job)

Terrible. Even Ms. Boesveld failed to remain impartial:




Am I victim blaming by reminding everybody that Jian Ghomeshi is merely an accused person at this point?

No.

Am I calling the first witness a liar because I say "her account" and use words like "she said" and "she claims"?

No. 

At this point in the proceedings (ie before the proceedings are over and verdict is rendered), Jian Ghomeshi is an accused. The accounts of the witnesses are claims, not truths. Calling them claims isn't the same as calling them lies. The statements made by the witnesses only become truths (for the purposes of Jian Ghomeshi's innocence or guilt) when the judge makes a ruling.

In this vein, I'm about to say something incredibly unpopular....

Jian Ghomeshi is innocent.

Maybe he won't be at the end of this trial, after all the evidence has been adduced and assessed, but right now, Jian Ghomeshi is innocent.

That's how the presumption of innocence works.

Jian Ghomeshi, just like any other person accused of a crime in any civilized nation, is presumed innocent.

I'm going to make a completely unqualified observation of what I've seen in my Twitter feed: the same people who were so incensed by the conviction of Steven Avery (Making a Murderer) are the same people who are crying out on Twitter for Ghomeshi blood. They're also the same people who rung their hands with frustration at the Canadian government's inaction on the issue of Omar Khadr's release and celebrated Omar's freedom.



Are we really so foolish that we don't see the connection?

Why did we binge watch Making a Murderer? Because we were angry? - of course we were, and we were smug about it too. "How could they do that to that innocent man? - OH! The injustice"... and in Canada we had the pleasure of saying, "Something like this would never happen  in Canada." Bullshit. Donald Marshall, Jr. - enough said.

The moral outrage we experienced at Steven Avery's conviction was a direct result of the complete disregard for the presumption of innocence shown by the Manitowoc County Police Department and the state prosecutor. The prosecutor and the police have a responsibility to make their case, which means they don't presume the accused is innocent (obviously), but the process they follow relies on the presumption of innocence. The prosecutor had the burden to prove Steven Avery was guilty - beyond any reasonable doubt.

Making a Murderer reacquainted us all with the visceral emotions caused by experiencing an injustice - we should all feel this emotion more often.

Where does this emotion come from and why is it so intense?

I'll answer that with another question: What if it was me?

Pause on that.

Pause on the enormity of R v. You.

Are the claims against Jian Ghomeshi valid? That's not for me to say - it's not for you to say. This isn't about us. It's about the law. It's about the credibility of the witnesses, the consistency of their evidence, and the strength of the Crown's case.

People on Twitter aren't judges. Good thing too, otherwise mob-justice would have already been dispensed. People on Twitter aren't required to presume Jian Ghomeshi, or anybody for that matter, innocent. However, Twitterers (or Tweeters or Twits... whatever) need to recall the importance of the presumption of innocence as a democratic principle. It goes like this:

** This is one part of a five part series I did for CBC Mainstreet Cape Breton on Intellectual Property Law. The audio is available here - the following is the script of the audio recording - ENJOY**


One Elsa,
Two Elsas,
Three Elsas.
Halloween this year was a parade of little Elsas.
The blue dress, the white braid, the…. snow suit over top.
If you measure the success of a Disney movie by Halloween costumes – it’s clear Disney’s Frozen was a runaway success.

Let’s say like many other super-fans I dressed up as Elsa for Halloween.
Since the cold doesn’t bother me anyway, I went out trick-or-treating dressed in a blue dress with a sheer blue cape.


Photo credit: Josh Hallett
[Unfortunately, this is not a photo of me - I dressed up as Prof. McGonagall this year - see Twitter for how awesome it was]

Can Disney sue me?

It depends.

We’ve talked about copyright, it’s the exclusive right of the creator to produce, reproduce, perform, and otherwise use their creation for their lifetime – plus 50 years.

Disney holds the copyright in Frozen. They own the rights to the movie.
If I copy the movie without their permission – I’ve infringed copyright.
If I copy any substantial part of the movie without their permission – I’ve infringed copyright.

What about Elsa?

Well, she’s a character in a movie – a work - and therefore protected by copyright.
She’s also protected by trademark.

Trademarks may be one or a combination of words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others in the marketplace.

In other words, trademark does not protect the product itself – it protects the brand.



For example, Coco-cola has a logo and a name – both form part of their brand and both are protected by trademark because the public ... us ... has formed an association btw the product and the reputation of the pop manufacturer. The goal of trademark is to prevent confusion in mind of consumer regarding the source of the wares. Trademark prevents another company from using the Coco-cola logo on their pop to pass that pop off as a genuine Coco-cola product.

[Interesting side-note: check out one of the original trademark registrations for Coca-Cola HERE]

Logos and names are protected by trademark, so is packaging.
The shape of the coke bottle is protected by trademark.

For Frozen, Disney would argue Elsa’s face; her distinctive blue dress; and her long, white braid – or a combination of these elements – form the subject of a trademark. Disney would argue: anyone seeing these three elements combined would think of the movie, Frozen, and Disney.

For my Halloween costume – that would be the point.

Some people take dressing up in costume more seriously than others.

Photo Credit: Bart

Hal-Con is the Halifax incarnation of Comic-Con: a sci-fi, fantasy, and gaming convention where participants are welcome to dress up as their favourite character. The costumes are hand-made and they are very well done. The Elsas are more Elsa than the real Elsa … and there is always a Darth Vader.

These costumes fit under a wider umbrella of “User Generated Content” – content created by fans that branches off from the original creative work.

Another form of User Generated Content is Fan Fiction.



Fan Fiction is fiction about characters or settings from an original work of fiction, created by fans of that work.

For example, JK Rowling’s Harry Potter series has been spun off by fans into a massive collection of fan fiction – covering everything from Hermione’s future career as the Minister of Magic to a pre-qual of Harry Potter’s parents.

Some artists (and JK Rowling is one of them) have embraced the fan fiction. In fact, Rowling continues to publish snippets of the back-stories of characters from the books – almost like she’s publishing her own fan fiction.

BUT - What if the author of the work doesn’t like what the fan has produced? For example, a large body of fan fiction focused on alternative worlds where Harry Potter falls in love with Draco Malfoy and the two are married. JK Rowling isn’t opposed to same sex marriage, but if she were, she would be more likely to challenge this use of her characters.

A character of a book or a movie is a part of that book or movie. Characters are normally the link between the copyrighted work and the fan fiction. Characters are protected by copyright if they are sufficiently distinctive, thorough, and complete. This rule allows authors to protect their characters from being appropriated and used in other works.

This test for whether a character is copyrightable was set by Anne of Green Gables… by which I mean Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc. where the court held that good old Anne, the character, was protected by copyright.

BUT not all characters are copyrightable. The rule does not protect generic, stock characters.

BUT where is the line drawn?

There are nearly 200 Simpson’s Characters – is each one of them protected?



All I know is that each one of them has a Wikipedia page. [My personal favourite is Lionel Hutz]

Harry Potter is probably copyrighted, but what about the other minor characters in the Harry Potter series?

Severus Snape?

Lily Potter?

How minor does a character have to be not to be copyrighted?

Setting posses another problem.

Is Hogwarts enough of the part of the story to be protected by copyright?

What about the Forbidden Forest?

These are all open questions and I may be letting my nerd flag fly a bit too much.

User Generated Content isn’t limited to book and movie characters – things really start to get interesting when creative fans get their hands on music.



A mashup is a song created by combining pieces of two or more pre-existing sound recordings into one new sound recording. Mashups usually come in the form of an A vs. B format – Just imagine Stevie Wonder and Metallica had a baby. The goal is to create something catchy and unique from two popular songs.

This wasn’t possible ten years ago. Music has moved from physical media to digital media and digital tools allowing users to modify, mix, and mash-up creations are more available and less expensive. The Internet also facilitates sharing music – mash-up artists become "internet famous” in mash-up communities and on the broader web.

The problem is, most mash-ups are created without the permission of the copyright owner and a significant number of mash-ups created and distributed in Canada today infringe copyright.

It can also be argued that many mash-ups violate moral rights.  In the context of copyright, moral rights are the artists’ right to the integrity of the work. This right, in part, protects works from distortions, mutilations, or modifications that are prejudicial to the honour or reputation of the author.
Mashup artists cut, slice, and plaster lyrics onto walls of sound built from pieces of various musical works. The original songs are usually from different musical genres – so different they may never be played on the same radio station.

If Justin Bieber doesn’t like the fact one of his songs was combined with a Slipknot song – he can claim his moral rights to his song have been infringed.



...

Let’s face it, its more likely Slipknot would complain.


Whether you’re dressing up like Elsa or mixing Guns and Roses with Thomas the Tank Engine, it’s likely that you’re coming close to infringing copyright or trademark.

Can you defend yourself?

Yes.

First, there’s the defence of Fair Dealing.

If you’ve reproduced or copied a work for the purpose of research, private study, education, parody, or satire you haven’t infringed copyright. A work can also be copied for the purpose of criticism, review, or news reporting, as long as you provide the source.

For example, Weird Al Yankovic makes a handsome living writing and performing parodies of popular songs. Although Weird Al has been challenged on several occasions [...] – his “Word Crimes” – a parody of Robin Thicke’s song “Blurred Lines” - is my personal favourite.

BUT - Does the Fair Dealing defence apply to mash-ups?

Maybe.

The question hasn’t really been addressed by the courts – it’s an open question.

If a fan uploads their mash-up to YouTube, they can’t really say it’s for “private study”. If they then make money from the views of their mash-up the fair dealing defence is less likely to protect them.

In 2012 the Copyright Modernization Act added another defence:

“Non-commercial User-generated Content”

Also known as the “mash-up exception”. This defence allows fans to create a new work from the existing copyrighted work as long as they’ve created the new work for non-commercial purposes. The fan should also give the source of the work they’re using.

A problem with this is we don’t really know what “commercial use” means in this context. If I upload a video to YouTube and get enough views – I can make some serious money – this means the mash-up exception wouldn’t apply to me.

There’s another problem: this is a Canadian exception.


It’s not in place in the US.

This poses a problem because the internet doesn’t observe geographic boundaries. If the Trans Pacific Partnership is ratified, copyright holders in the US can compel the Canadian government to require users to remove infringing content. This means mash-ups. Suddenly, the mash-up exception doesn’t look that great.

Whether it’s costume, Fan Fiction, or mash-up – fans are finding unique ways to express their love of creative works. Some artists recognize the positive impact of fan creations. Increased record sales, media attention, and revived popularity are all good reasons for artists to tacitly allow their fans to infringe copyright.

Other artists give their fans the right to use their work through a Creative Commons Licence. As long as the fans play by the rules of the licence – they can create their own work. This is a private response – as opposed to a legislative response.

Canada made steps toward dealing with User Generate Content with the mash-up exception, but we may be taking a step backward with TPP.

For fans, this trend is troubling.

The question was, can Disney sue me, a fan, for dressing up as Elsa?



They can sue me.

Would they win?

Maybe.

If I looked enough like Elsa – if I resembled her enough to make people think I was the Elsa from the Disney movie – I would be infringing their trademark.

If I looked enough like Elsa – I might also infringe Disney’s copyright – because she’s a central character in their movie.

Fair Dealing might protect me because my use of the costume is not commercial, but that’s something I’d have to prove. Ultimately, my hope would be that Disney saw the value in having a parade of little Elsas and simply – let it go.

** This is one part of a five part series I did for CBC Mainstreet Cape Breton on Intellectual Property Law. The audio is available here - the following is the script of the audio recording - ENJOY**



The average Canadian watches 22 hrs of television per week.

This used to mean we were glued to an ever-glowing box, connected to a cable, connected to the cable company - but this is changing. Canadians are cutting the cable cord at rate seven times faster than last year.

There are lots of “cord-cutters” - BUT there are also “cord-nevers” – those just leaving the nest who may never connect to their cable company (even if they can afford it).

How are these people getting their TV?

The internet.

Two ways.

There’s – what I’m going to call – the "legitimate sources": Netflix, CraveTV, HBO, and other internet based video streaming services. You pay for these services with either your money, if they’re ad free, or your time, if you watch a short ad before viewing.




But if Netflix doesn’t have all the shows you like and you’re not willing to have six different charges show up on your credit card every month for streaming services – you’re probably a “pirate”.



I don’t mean “pirate” in the "yo-ho and a bottle of rum sense".
I mean “pirate” in the sense of downloading video from the internet.

The most common way people download video is through BitTorrent (otherwise known as “peer-to-peer sharing”). BitTorrent websites connect users (who wish to download a file) with other users (who have a whole file).

How does it work?

User A wants the most recent episode of Game of Thrones.
User B has a copy of the episode.
Rather than connect user A with user B,
BitTorrent connects user A with multiple users who all have a copy of the episode and coordinates them all to make the file download as quickly as possible.
User A copies pieces of a whole file from multiple users.
This means that when you’re using a BitTorrent website, you may only be downloading part of a file from each individual user.

It’s like going to the market to get ingredients to make soup.
You, the shopper, are the downloader.
The vendors are the other users you want to download from.
You go to multiple vendors.

One has the carrots.

Another has the onions.

Another the celery.

Each piece comes together to form the whole of what you want to eat.

BitTorrent websites are like the directory of the market. The directory tells you where to get what, but it doesn’t actually sell it to you.

It’s also possible to stream torrents.

It works the same, except you only download the part of the file you’re about to watch. You’re not collecting the individual parts together as a whole. Once you’ve watched the part you’ve downloaded, it’s gone. The fragments you’ve downloaded go away as you finish watching them. You don’t keep a copy on your computer, but you still copy it.

When you download all or part of a song, you’ve copied it.
If you’ve done so without the artist’s permission (which is usually the case with torrenting) you’ve probably infringed copyright.

What is copyright?
Let’s use Adele as an example.



Adele - makes the song “Hello”.

In making the song she has created the work - without having to register or do any voodoo, Adele holds the copyright in the work. This means she has the exclusive right to sell, licence, copy, and distribute the work. The Copyright Act gives Adele this right for her lifetime + 50 years

For the purposes of our example, Adele created “Hello” this year.
Adele is 27 years old.
If she lives until she’s 87 – “Hello” will be protected by Canadian copyright law until 2125 – 110 years into the future.
This is the term of copyright protection.

This may seem like a long time,
BUT, Intellectual Property protection is all about the trade-off between incentives to create and the spread of ideas.

When we ask how long the term of copyright protection should be the question isn’t:

Is the artists already rich?

The question is:

Would Adele have created the song without the promise of the exclusive right to sing it and sell it?

Scratch that.

The question is:

Would a yet to be discovered Adele have created the song without the promise of this exclusive right?

The exclusive right is what makes a creator money. If their song is popular, other people want to record it and perform it. They pay the artist for this privilege to avoid copyright infringement.

When we hear the word “copyright” we tend to think of music – but copyright protects all kinds of expression.

Including television shows and movies.

As we cut the cord, downloaded television and movies are becoming a bigger and bigger part of our viewing lives.

Can’t get it on Netflix?

Don’t want to pay $15 for HBO’s streaming service?

Download it… and get caught.

What happens when you get caught?
In Canada we recently created a scheme to deal with the wide-spread copyright infringement facilitated by the internet. It’s called the “Notice-and-Notice” scheme.

How does it work?

User A used a torrenting site to copy the movie Frozen.



Disney owns the rights to Frozen.
By monitoring the torrenting site, Disney knows the internet protocol (“IP”) address that downloaded Frozen.

Your IP address identifies your computer and locates it so you can connect to the internet.

Disney knows someone using your IP address downloaded “Frozen”, but Disney doesn’t know YOU downloaded “Frozen”. Only your Internet Service Provider, your ISP, can connect the anonymous IP address with the flesh and blood YOU.

Rather than have the ISP tell Disney who you are, the Notice and Notice Scheme requires the ISP to send a letter from Disney to you threatening action for copyright infringement.



The goal of the notice-and-notice scheme was to balance (1) the interests of copyright holders, (2) the privacy rights of Internet users, and (3) legal obligations of Internet providers.

This system was also meant to be educational and raise awareness about what copyright infringement is. There are reports that it’s working – infringement is down.

But some copyright owners aren’t satisfied with the system because the notice-and-notice scheme does not require content takedowns.

Content takedowns are part of the system in the US.



Let’s say a full version of Frozen made it on to YouTube.

In the US, Disney tells YouTube that someone is infringing their copyright and YouTube has X number of days to remove the content. YouTube is not liable for the infringement until the time expires.

These content takedowns are particularly troubling because they occur without a judge finding actual copyright infringement.

This brings us to TPP - the Trans-Pacific Partnership.

This was a deal finalized on October 5th - it hasn’t yet been signed but there’s every indication Trudeau intends to sign it. Among other things, TPP involves "harmonizing" copyright laws in the 12 Pacific Rim countries — including Canada, the United States, Australia and Japan.

Although TPP maintains the Notice-and-Notice scheme, it snuck in a U.S. style notice-and-takedown system. Canada agreed to induce ISPs to “remove or disable” access to content if the ISP becomes aware of a court order that the content infringes copyright. This could include orders from other countries – even if copyright infringement wouldn’t have been found under Canadian law.

TPP hasn’t been ratified yet, but if it is it will create other problems.

TPP will extend the Copyright Term in Canada by 20 years. Changing it to Life of the creator + 70 years. This means Adele’s song, “Hello” won’t enter the public domain until 2145 (a work enters the public domain after it’s copyright protection has expired).

TPP’s changes will not only mean it takes longer for works to enter the public domain.
The changes will also cause works that are now in the public domain to be clawed back into the private sphere.

Why extend the copyright term?

It’s all about Mickey Mouse.



In the late 1990’s, Disney lobbied heavily in the US to extend the term of copyright from the standard (life of the artist + 50 years) to the current +70 term. They did this, in part, to delay the entry of the earliest Mickey Mouse movies into the public domain. Their goal was to protect their exclusive right over some of their most lovable, and profitable, characters.

Ultimately, Disney’s lobbying efforts were successful and similar efforts are constantly in the works to further extend the copyright term.

The same arguments used in extending the copyright term for Mickey Mouse were used to justify the extended copyright term in TPP.

With so many people cutting the cord, copyright infringement is becoming more commonplace.

Can rights holders, like Disney, really expect to keep extending the term of copyright given the trend toward infringement of copyright?

Disney may argue they have to in order to make up for profits lost because of the increase in copyright infringement made possible by the internet. Disney said the same thing about VHS tapes and DVDs.

I guess the more important question is:

If we’re all cutting the cord – and we’re all supplementing our TV libraries by downloading shows…

Can Disney stop us all?

** this is a follow-up post from my talk at B-Sides Cape Breton where I discussed the practical impacts of the Notice-and-Notice Scheme for Copyright infringement in Canada - the complete slide-deck is available here **

B-Sides Cape Breton was fantastic. So many good questions. So... much... sass.

Thank you for having me, B-Sides CB. Also... B-Sides attendees, I made you a gift.



Down to business...

To frame the B-Sides CB talk I asked a simple question:

The Copyright Modernization Act put in place a Notice-and-Notice system allowing Copyright owners to contact an infringing party via their Internet Service Provider (ISP).

Do I have to respond to Copyright infringement notice from my ISP?

First - a crash course in Copyright.

Taylor Swift, makes the song “Shake it Off” (whether the song is any good or not is irrelevant - music criticism is not my forte).


By using her skill and judgment to make the song, Taylor Swift has created the work. Without having to register or do any voodoo, Ms. Swift holds the copyright in the work. This means she has the exclusive license to sell, licence, copy, and distribute the work. The Copyright Act gives Taylor Swift this right for her lifetime + 50 years. That's a long time.

Why so long?
This is where everything gets a little philosophical. Everybody has to eat. In order for Taylor Swift to eat so she can create music, she needs to be able to turn that music into food (money).

I turn my skill into money by advising people and writing angry letters; Taylor turns her skill into money by being a talented musician / all-round gorgeous gal.

The argument is that Taylor Swift needs the incentive of copyright protection - the force of law providing her with exclusive rights to produce, reproduce, sell, licence what she creates. The story goes, if she didn't have this protection, she'd be less able/willing to create her music... and then the world would be without Taylor Swift.

Imagine that world.

Maybe it’s because I’ve seen too many zombie movies, but I always like to identify a patient zero when it comes to trends. Voltage Pictures owns the rights in “The Hurt Locker” - and they’ve been very aggressive in enforcing their rights in Canada - because this movie was so popular its the subject of many infringement claims.




They’re protecting their stuff - you’re trying to bust in to steal their stuff.



Under the notice-and-notice system, copyright owners are entitled to send infringement notices to Internet providers, who are legally required to forward the notifications to their subscribers.
The notices must include details on the sender, the copyright works and the alleged infringement.
If the Internet provider fails to forward the notification, it must explain why or face the prospect of damages that run as high as $10,000.
Internet providers must also retain information on the subscriber for six months (or 12 months if court proceedings are launched).

What's in these emails?

I can’t show you the notices I’ve reviewed for clients, but here's the gist of what they contain:

They allege infringement (downloading/copying music they own)
They threaten to sue you for $150,000
They identify the song
They offer to settle for $20 per infringement
They tell you litigation is expensive
They give you a website where you can view the settlement and pay it.
They tell you all the information they have on you.

What do you do when you get one of these emails?

Let’s do a little case study.

You’re a BellAliant customer. They’re your ISP. You received an email from BellAliant containing a notice forwarded from a representative of a copyright owner alleging various instances of copyright infringement associated with your download of a Taylor Swift song, “Shake it Off”. The letter says you downloaded “Shake it Off” from your IP Address; specifically, these notices alleged you illegally copied the song using the peer-to-peer sharing service, Pirate Bay. The emails say you are in violation of the “Canada Copyright Act” and that you may be liable for civil sanctions up to $5,000. The emails provide a link to a website (www.copyrightsettlements.com) where you can access their settlement proposal and pay the settlement online;

Do you simply “Shake it Off”?





Sorry, I couldn’t help myself.

This is the real question. After the notice-and-notice system came into effect the internet lit up with the kind of advice the internet loves to give…

• TekSavvy is legally required to forward notice
• The copyright owner does not know identity of the user
• TekSavvy won’t provide the user's information without a court order
• TekSavvy can’t verify contents or sender (i.e. this could be dubious/sketchy)
• The Notice-and-Notice letter is NOT a legal ruling
• TekSavvy must retain records associated with the letter for at least 6 months
• Links to the Copyright Act and other laws
• Links to TekSavvy's privacy policy

• ISP is legally required to forward notice
• The copyright owner does not know identity of the user
• ISP won’t provide the user's information without a court order
• ISP can’t verify contents or sender (i.e. this could be dubious/sketchy)
• The Notice-and-Notice letter is NOT a legal ruling
• ISP must retain records associated with the letter for at least 6 months
• Links to the Copyright Act and other laws
• Links to ISP's privacy policy

• Identify the IP address associated with the infringement
• Identify the work (song/movie)
• When the work was downloaded
• Through which medium it was downloaded (Pirate Bay)
• Identify the owner of the copyright (rights holder)

Full disc encryption. Fully encrypted back-ups. Back-ups for my back-ups. Am I a criminal? No - I'm a responsible lawyer who understands technology (at least on a cursory level) and is vicious about maintaining the confidentiality of her clients.

The internet is a weird mix of bedroom and public park. People use the internet for intensely personal things, but they also use it for the most public of their activities. My messages/emails/etc. It's difficult to determine whether someone's activities online are bedroom or public park. I've suggested in the past that encryption is the act of shutting the door - of establishing a higher reasonable expectation of privacy.

Courts use this idea of a reasonable expectation of privacy to determine whether or not search/seziure of that person's dwelling/stuff violated the Charter. It's on a continuum. You can have a reasonable expectation of privacy in your hotel room, but you have a higher reasonable expectation of privacy in your home, and an even higher reasonable expectation of privacy in a drawer in your home. It always makes me think of Russian dolls.


The cute little one has the highest reasonable expectation of privacy. Look at her. All smug... ehem.

The Supreme Court of Canada recognized in R. v. Spencer (2014) that a person has a reasonable expectation of privacy in their anonymity online. In that case, it was held that an Internet Service Provider (ISP) cannot be compelled to provide the identity of the user of a certain IP address.

In R. v. Ley and Wiwchar (2014) a BC judge held that the accused had a reasonable expectation of privacy in his Blackberry messages due, in part, to the fact they were encrypted. The judge also commented on the fact that courts have consistently held a person does not abandon their reasonable expectation of privacy simply by stepping out the door.

Reasonably expectation of privacy online. Encryption increases reasonable expectation of privacy. All of a sudden, I'm looking like the littlest doll. But there are those who seek to interrupt this trend by making the act of encryption itself illegal or requiring service providers to install backdoors to allow for decryption where a court order exists.

Legislation proposed in the UK would make social media and online messaging services including Snapchat, Facebook Messenger and iMessage illegal in the country.

The Investigatory Powers Bill, or the so called Snoopers’ Charter, would allow security services like the Government Communications Headquarters, or GCHQ, and MI5, or Military Intelligence Section 5, to access instant messages sent between people to and from the country. In an aim to combat terrorism and other crimes, the legislation would give the government right to ban instant messaging apps that use end-to-end encryption (that's iMessage, people!). The legislation would also require service providers to retain data (messages) for at least 12 months.

With the greatest respect to Canada's sexier-sounding (and slightly neurotic) sister - this proposed legislation is absolute lunacy.

The lunacy continues in the US where the FBI obtained a court order demanding that Apple decrypt iMessages.

Now. I have American friends. They confuse me. They are as casual with guns as they are with television remotes and they eat potatoes out of boxes (Seriously, what the heck is up with that?). BUT, if I had a top ten list of things I love about Americans the top two would be ....

(1) They ask you how you want your burger done. As a person who likes her steak basically still moving this is a welcome novelty whenever I go south of the border. Although I haven't ever been brave enough to get a rare burger.

(2) They are absolutely wild about freedom of expression. First Amendment rights are as absolute as rights get. I love it. I love Americans. I've said it before and I'll say it again. Americans are awesome in this regard.

I also love Apple. In this instance, Apple told the FBI that it cannot comply with the court order to decrypt because they did not build in a way around their encryption systems.

Y. E. S.


Aside from being amused by scrappy companies who aren't afraid to go toe to toe with the Gov, why is this important?

In my last post I mentioned that I trade in confidentiality. I meant it. Privacy is paramount to my clients, but also to the democratic function lawyers serve. What about the democratic function of other citizens? A citizen's vote isn't their only way to express their political opinion (see... ya know... the INTERNET, etc.). What happens when a citizen cannot be open/frank online?

Truth: I love to sing in the kitchen while I bake things. I sing a lot less loudly when my husband is around - not because I don't trust him or because I'm a bad singer (I am), but because there is something liberating about solitude, about being on ones own and knowing that one is on ones own.

I'm not the only one who has thought this.


Not all citizens have the social liberty to express themselves in a public forum, but they still have valid opinions/ideas. They should be able to express those ideas behind the only shield we have left - anonymity. Anonymity, like solitude, is liberating.

Encryption is anonymity and it serves a vital democratic function. Period.

When citizens can no longer move or act without an absolute guarantee at least some of their actions won't be surveilled by their government they no longer have a right to privacy, but a revokable privilege in it.

Word on the internet is that people who were trying to cheat on their spouses, using the internet, have fallen victim to the internet.

How do I feel about this? - Disillusioned.

Not about people cheating.  Please.  You don't have to be a lawyer to know this, but people CHEAT. You don't have to practice family law to know this wisdom.

In the case of cheaters, generally, it's not a question of if. It's a question of when? with who? how often? for how long? ... and in my case: who cares?

If my husband cheated on me, I'd be sad (read: angry and litigious), but, aside from the usual 5 minutes of coffee shop chit chat, it would be forgotten by all (except me... I hold grudges forever).

Cheaters are of little consequence to me. Instead, this whole Ashley Madison affair (oh, puns!) has caused me to be disillusioned with hackers.

In my brief time on this planet I've met some people who were involved in the "under-belly" or "dark side" of the internet. The majority of those I've met have a playful and healthy problem with authority. They often push the limits of legality (by which I mean they usually break the law), but their activities rarely involve people getting hurt or having their lives ruined. Worse case, the hackers I know have caused some difficulty for a civil servant somewhere in another country. I'm being vague on purpose.

My personal experience with hackers, combined with the more famous socially conscious hacks have caused me to view hackers like this...


Don't let it go to your head, hackers. I also sometimes view you as Dennis the Menace.

 As a nerdy little girl, I liked Batman because he was a problematic "good guy" - Superman always seemed very one-dimensional and was born with the super-power equivalent of a silver spoon in his mouth, but I digress - this is a debate for another time. Just like with Batman, I understood hackers in terms of dichotomy. Bad hackers. Good hackers. All was black and white.

Now my world is shattered. *slight melodrama* 

I knew this day would come. I just didn't think it would involve a bunch of unsatisfied, middle-aged housewives who hate their husband named Carl.

When Ashley Madison was hacked and the data dumps began (and were confirmed), people relished in the titillating information. Who went on that site anyway? What kind of weird, kinky stuff were they into? The whole fiasco has been a real tabloid-esque type deal.

I have no problem with this and must admit I was entertained.

Except then people started mentioning the word hack-tivism. "They (the people who had their private information exposed) deserved it"... the story instantly gained a moral / cautionary tale element. As though the hackers who released the Ashley Madison data were somehow justified in doing so.

Ashley Madison's original CTO, Raja Bahatia, has commented on the moral element of this story. He said,

“This event is not an act of hacktivism, it is an act of criminality. It is an illegal action against the individual members of AshleyMadison.com, as well as any freethinking people who choose to engage in fully lawful online activities [...] We know that there are people out there who know one or more of these individuals, and we invite them to come forward. While we are confident that the authorities will identify and prosecute each of them to the fullest extent of the law, we also know there are individuals out there who can help to make this happen faster.”

This is not the equivalent of a "we prosecute shoplifters sign" in a change room. I expect that Ashley Madison will do everything in their power to make good on these threats. They have to. They deal in flesh and confidentiality.

Kind of like lawyers... minus the flesh part.... I feel dirty now.

I am inclined to agree with Bahatia's characterization. This is straight up criminal activity.

But... but... look at this face:



Now that is a saintly headshot.

Some hackers have used their skills to expose government secrets the citizenry has a right to know. Do governments look over their shoulders now? Maybe... and "maybe" is better than NO.

Is Edward Snowden a criminal? Yes. Sigh. Just like Batman would be charged with assault, battery, destruction of property, and all manner of weapons charges.

Does the end justify the means?

This is an open question with Snowden.

Now. I don't want to lump all hackers into one group. That is untrue and unfair. Instead, I'll direct this post/rant to the hackers responsible for the Ashley Madison fiasco. I'll call you "Hackers".

I have to level with you, Hackers. You've used your incredible power for something tawdry and, worse, kind of mundane. As if it was news that people cheat. As if it was news that they use the internet to do it.

Excuse my sarcasm when I say,


                 *Gasp*
                 
                 How shocking!

                 Look, I've dropped my monocle in my water glass and have clutched my purls!


Hackers, you've used the single most important democratizing instrument since the Gutenburg Press to release a big ol' list of cheaters.

                Good for you.

You're like the brilliant doctor who could cure cancer and then became a Private Eye instead because of your very odd obsession with Veronica Mars (forgive me... Veronica and I had a Netflix reunion not long ago).



I'm disappointed in you, Hackers. 

Maybe you were trying to show that nobody is safe, thereby further frightening the government into being honest with its citizens (unlikely).

Maybe you were trying to beat it over our heads that companies can and do maintain data they promise they've deleted and that user agreements usually allow this (pfft... nobody reads those things!).

Maybe you were trying to punish Ashley Madison for their $20 fee for a "full-delete" that didn't actually delete anything.

Maybe you were bored and wanted to make some money.

It doesn't matter. Hackers, you're a cheap gossip who has told everybody you know what you know. Just on a bigger scale.

Have you hurt the company? Yes.

Have you hurt the cheaters? Yes.

With great power comes great responsibility.

I expect cheaters to cheat. I expected more from you, Hackers.




(also... please don't make me your hobby)