January 31: global intellectual property governance

On January 31st, Professor Margaret Chon of the University of Seattle will be speaking on the subject of global intellectual property governance, in the context of the WIPO’s Development Agenda. The event, which is co-sponsored by the Centre for Innovation Law and the Law and Development Society, will take place at the University of Toronto Faculty of Law.

Full details are below: Read the rest of this entry »

The implications of anti-spam legislation

Michael Fekete spoke today at the University of Toronto Faculty of Law, discussing the implications of anti-spam legislation for legitimate business promotions in Canada. The Canadian legislation, which has yet to come into effect, will have significant implications for businesses of all sizes. Read the rest of this entry »

Network Neutrality

The internet has always been hailed as the way of the future, facilitating free speech and economic growth like never before. Its openness has never been questioned. Or has it? Comcast’s, not unexpected, takeover of NBC last week marked the latest checkpoint in the escalating open internet debate. While the merger is certain to transform the entertainment industry landscape, there are also deeper issues brewing. What is at stake can be summed up in a relatively new concept called “network neutrality”.

In simple terms, network neutrality is the principle that access to the internet should be granted impartially, without regard to content, destination or source. Net neutrality is sometimes referred to as the “First Amendment of the Internet.” Comcast Corporation is the US’ largest cable and internet service provider, while NBC Universal is one of the country’s largest and oldest content companies. With a content provider and content deliverer merging, together, they have the potential to restrict the internet people have access to. The internet deliverer, Comcast, can decide to give preference to certain content, NBC’s, charging users a fee to access said content. The fear is that, without network neutrality, there is the potential for deliverers to steer their customers towards certain content providers, or for certain content providers to be available exclusively through certain deliverers.   Imagine if you could only access NBC content if you subscribed to Comcast.   If this were to happen, they would essentially be segmenting the internet.

Of course, last week’s merger did not come without conditions to mitigate against such harms to the market. US’ Department of Justice and the Federal Communications Commission (FCC) both adopted network neutrality protections, prohibiting Comcast from favoring the distribution of NBC programming online, as well as conditions preventing Comcast from completely refusing to sell NBC content to competing internet media distributors, like Netflix, and run them out of business.

The FCC’s fight in enforcing network neutrality is broader in scope than merger conditions. They first introduced net neutrality rules in October 2009. The rules essentially banned internet service providers (ISP’s) from discriminating against specific applications and required them to be transparent about their network management. Following a backlash by ISP’s over the FCC’s alleged lack of authority over regulating broadband, and a bit of legal gymnastics, the Commission approved of another set of rules in December 2010. The new regulation provides three high-level rules: transparency, no blocking, and no unreasonable discrimination. Yet with the landmark network neutrality rules less than a month old, Verizon Communications filed the first legal challenge just last week with a federal appeals court. As one of the most vocal opponents of network neutrality, Verizon is arguing that the FCC, again, does not have the authority to enact the new rules.

Some common arguments for network neutrality include the claim that cable companies should not be allowed to screen, interrupt or filter internet content without a court order, that net neutrality ensures that the internet remains a free and open technology, and that it creates a level playing field for innovation and competition.

Common arguments against network neutrality include: if ISP’s have the ability to charge for fast internet service, this would encourage telecommunication and cable companies to invest in fiber optic networks. As well, inappropriate legislation could inhibit ISP’s from preventing email spam and Denial of Service attacks.

Clearly, this issue will not be resolved any time soon, if at all. The idea that something like Gmail can be made available only from one ISP, say Rogers, is admittedly alarming. And ISP’s have always had the technical ability to block users from certain parts of the internet. With the ongoing network neutrality debate, and its ongoing legislative struggles, it is yet to be determined how far that muscle can be flexed. Hopefully, not too far.

Click here for an infographic for further background on the debate.

Do Corporations have Personal Privacy Rights?

In a case involving the US telecommunications giant AT&T, the US Supreme Court considered whether or not a corporation could have personal privacy rights. AT&T had tried to block the release of documents it had given to the Federal Communications Commission, basing the attempt on an exemption in the Freedom of Information Act which protects information “could reasonably be expected to constitute an unwarranted invasion of personal privacy”. Read the rest of this entry »

Canada’s Inadequate Drug Patent Protection?

The Canadian Intellectual Property Council is urging Canada to toughen its patent protection for drug makers if it does not want to lose out on lucrative pharmaceutical investment and jobs to the U.S. and Europe.  According to its recent report, the life of a patent in Canada, once the drug is on the market, is significantly shorter than in any other G7 country.  The CIPC urges Ottawa to give patented drug makers up to five years of “restored” patent life to offset regulatory delays, exclusive use of drug trial data for an additional two years and legal tools to fight patent challenges launched by generic manufacturers.

Strengthening patent protection would not be without its problems too.  New drug prices will go up for consumers, insurers and provincial health plans.  The Canadian Generic Pharmaceutical Association (CGPA) claims that if the patent changes sought by the industry are realized, it would cost Canadians up to $3billion a year in higher drug costs. Canada’s generic drug industry, along with several provincial governments, would also not see such legislation enacted without a fight.

But are drug regulations and innovation necessarily mutually exclusive?  Ariel Katz, Associate Professor at University of Toronto would claim that they are not.   In fact, he argues that a regulatory framework is not only not solely a burden on the industry, but that it also provides them a valuable service.  His full article can be accessed here.

WikiLeaks, Twitter and communications privacy law

Although we may be tired of reading the word “WikiLeaks”, the United States government’s reaction to Julian Assange’s revelations has brought issues of privacy law in communications to the forefront. According to the Associated Press, the U.S. Department of Justice obtained a court order from a district court in Alexandria, Virginia, on December 14th, asking Twitter, Inc. to disclose information connected to four accounts: the official WikiLeaks Twitter account, and the personal accounts of three WikiLeaks supporters. The court order also asks for any information Twitter may have on Julian Assange, the founder of WikiLeaks, and Private Bradley Manning, who is currently in U.S. custody, suspected of leaking classified information to WikiLeaks. The court order was unsealed on January 5th at the request of Twitter; WikiLeaks posted on its official Twitter account that it assumes information from Google and Facebook were similarly subpoenaed, although this has not been confirmed. Assange has complained that the government’s conduct amounts to harassment.

Unsurprisingly, WikiLeaks is only one of many organizations and individuals that have found their Twitter accounts the subject of recent subpoenas. A recent New York Times article has indicated that U.S. law enforcement agencies request information from companies such as Google, Twitter, Facebook, and Verizon more and more. As social networking sites and online data storage have become more popular with consumers, they have also become more popular with law enforcement agencies seeking information. Fortunately for such agencies, but unfortunately for consumers who value their privacy, the main law regarding communications privacy in the U.S., the Electronic Communications Privacy Act (ECPA), was enacted in 1986, when email and cellphones were not used nearly as widely as today, and social networking sites were more than ten years in the future. Experts have suggested that the legislation originates from U.S. case law which says that individuals have no expectation of privacy from the government once you’ve given personal information to a third party. According to some consumer privacy advocates, the legislation is so outdated that it gives more protection to a letter in a filing cabinet than it does to emails on a server. The law makes it relatively easy for law enforcement agencies to gain access to information stored on a server; for example, if emails are more than 180 days old, agencies do not generally need a warrant to access them. This is further complicated by the fact that the legislation has been interpreted inconsistently by judges.

Due to the fact that court orders requesting information are often sealed, it is difficult for individuals to know whether or not they have been the subject of any requests. While most companies do not reveal the existence of requests to users, Twitter’s policy has been praised by privacy advocates. Twitter will “notify users of requests for their information prior to disclosure unless we are prohibited from doing so by statute or court order.” Google, Facebook, and many organizations that often find themselves faced with court orders for user information, do not have policies of informing users of requests for their data before disclosure.

While even the most vocal supporters of consumer privacy agree that user information is extremely valuable to law enforcement agencies involved in a wide variety of investigations, from terrorism to Internet pornography, many find it intolerable that protection of online data is so much weaker than that of data stored in paper form at homes or offices. Under ECPA, law enforcement agencies need only a subpoena from a prosecutor to access an individual’s online data. In order to set up a wiretap, agencies need a court order, and in order to access documents, they must obtain a search warrant from a judge. With online storage and transmission of data becoming more frequent and hard copy storage and snail mail transmission less so, it seems inconsistent that privacy in our main modes of communication in 2011 is granted far less protection than our main modes of communication 50 or even 100 years ago. Does it make sense for the privacy of consumer and user information to be afforded less protection merely because of the way in which it is stored or sent? Should legal protection be different for a conversation held over the phone and a series of emails? Furthermore, do legislators truly intend that older and newer modes of communication be treated so differently for the purposes of law enforcement?

With public and media attention focused on ECPA, some legislators, including Senator Patrick Leahy, a Vermont Democrat, have begun to advocate reform of online privacy policies. While acknowledging that Americans’ privacy has been increasingly encroached in the last decade, Leahy has stressed the need for balance between individual privacy rights and law enforcement objectives. With federal law enforcement issues planning to ask for regulations that would make it easier for them to set up legal wiretaps of Internet communications, it remains to be seen whether such reforms will result in improved protections for communications privacy.

Marilyn Monroe IP Rights Purchased

Authentic Brands Group LLC (ABG), a leading intellectual property corporation led by Toronto-based Jamie Salter, recently announced their acquisition of the intellectual property rights of Marilyn Monroe. The purchase was made in conjunction with National Entertainment Collectibles Inc., a global media and entertainment company. A press release by ABG stated that “Marilyn Monroe’s legacy will not only live, but it will be greatly enhanced by ABG’s and NECA’s unparalleled track record in building brands… ABG is a leader in celebrity business ventures.” The Munroe estate was previously administered by Anna Strasberg, wife of the late Lee Strasberg, who will continue her involvement as a minority partner.
While there is some discomfort in the idea of companies being able to purchase merchandising rights of celerities who are no longer around to actually endorse anything, there is no denying the lucatriveness of the business. The Michael Jackson estate has made $275 million since his death two summers ago. Elvis Presley’s estate earned $60 million in 2010 alone, according to Forbes magazine.

California Supreme Court rules that police can search arrestee’s cell phone

In 2007, Gregory Diaz was arrested for attempting to sell drugs to a police informant. When he arrived at the police station his cell phone was seized and his text messages searched. The California Supreme Court recently held that the search was constitutional, comparing the messages in the cell phone to heroin tablets in a cigarette case. The dissenting opinion worried that this would give the police “carte blanche…to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone”.

VLC and the Apple App Store

On Friday, Apple removed the open source VLC media player from the App Store. It is believed (though not known for sure) that this happened as the result of a copyright complaint made two months ago by a developer named Rémi Denis-Courmont. A professor told my class last week that if we ever wanted to get in trouble, we just had to give an opinion on open source software. Despite that warning, here is why I think that Apple’s distribution of VLC does not violate its license.

About VLC

VLC is an alternative media player that plays a wide range of video formats and is available for all desktop operating systems. It is developed by the VideoLAN team and the source code is freely available through their website. A third party developer (Applidium) used this source code to develop a mobile version of VLC. As was required by the GPL (see below), they made the source code for their modifications available on their own website.

About the GPL

VLC is released under the GNU Public License (GPL) version 2. The GPL is a “copyleft” licenses. It provides everyone who receives a copy of the software with the right to use, modify and redistribute the software however they see fit. However, anyone who redistributes the software (or a derivative) must do so under the same license. Because of this, the GPL is often referred to as a viral license; the use of any GPL code in a software project attaches the license to the entire project. GPL software does not need to be free of charge, but it often is because the license gives away the right to control copying and redistribution after sale.

The GPL also forbids anyone who redistributes the software or a derivative work from attaching any additional restrictions:

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein….

VLC, GPL, and the App Store

The App Store Terms and Conditions (“Terms”) impose restrictions that affect how apps may be copied and redistributed. The Terms govern your use of the App Store distribution services (“Services”) and set out Product Usage Rules. The Product Usage Rules set out how a Product downloaded from the Services may be used and warn you that any other use may be copyright infringement. The Free Software Foundation (which created the GPL) has stated two reasons why the GPL (v2) is incompatible with the App Store Terms and Conditions: (1) you are required to accept the Terms, (2) the Product Usage Rules limit your use of the downloaded app. I believe, however, that this mischaracterizes the Terms in two ways.

First, the App Store Terms of Use apply to your use of the App Store distribution service and the iTunes software on your computer. The requirement that you accept the terms occurs prior to distribution and is akin to requiring that someone pay for the initial distribution; it is not a restriction on the right to copy, distribute or modify the program. Once you have a copy of the Product, you have all the rights in the GPL because the Terms state that your use of the Product is subject to the license agreement entered into by the developer and the user (and the Product Usage Rules). What you may not have is the technical ability to exercise these rights. However, the GPL does not require a distributor or a third-party (Apple) to help the user exercise their rights. In other words, Apple cannot attach a license to VLC prohibiting the user from modifying it and loading it onto their phone, but it is fine that iTunes doesn’t provide that functionality. Legal and technical restrictions on equipment and software other than the GPL-licensed Product may have a practical effect on your ability to exercise your rights without violating the license agreement.

Second, the Product Usage Rules are permissive, not restrictive. This was not true when the FSF posted their opinion. Currently, though, the Product Usage Rules permit users to download and sync Products for personal use on all their iOS devices. They do not prohibit you from copying the Product to another person’s device or modifying it if the Product license permits that. In their current form, the Product Usage Rules set a minimum set of rights that a Product must allow. For example, they prevent a Product from being distributed with a license that only covers a single device.

The App Store Terms are a divisive issue in the very idealogical open source community. However, I do not think that distributing a GPL app via the App Store and in accordance with their Terms is a violation of the GPL version 2. Version 3 of the GPL contains special provisions requiring that the developer provide sufficient “installation information” to allow a user to run modified versions of the software. It may not be possible for an app licensed under GPLv3 to be distributed via the App Store due to the practical restrictions discussed above.

For all its popularity in open source software, the GPL has not been the subject of much litigation. It is drafted in very general terms so that it may be applied to many different projects. Thus it is very hard to predict how a court case would turn out. It’s not surprising that Apple doesn’t want to take any chances.

Increase in Patents Issued to Apple

According to the Wall Street Journal, Apple, which has become an increasingly important force in the world of technology, was issued almost twice as many patents in 2010 than in 2009. The company was issued 563 patents in 2010, 289 in 2009 and 186 in 2008. This makes Apple #46 in IFI Claims Patent Services’ list of the top 50 patent assignees in 2010. The patents awarded to Apple this year include the multi-touch screen on the iPhone, which can detect multiple touches that occur at the same time in different locations. Some of these patents had application dates as far back as 2004 and 2005.

Despite this increase, Apple is still far behind long-time patent leaders, including the top 3 patent assignees, IBM (with 5896 patents in 2010), Samsung (4551) and Microsoft (3094). IBM also broke the 5000-patent mark for the first time in 2010. Full rankings include other longtime technology leaders, such as Panasonic, Toshiba, Sony, Intel, HP and LG.