Monday, June 23, 2008

the advance of reason

Many folks sent me this link today -- thanks to all, especially Sandy, who was first. Sandy, you win a beer.

This article by Simon Doyle in the Hill Times shows how those most invested in copyright reform are being cautious and judicious, and taking their time to study Bill C-61 before re-engaging with government to express their likes and dislikes, and to suggest potential amendments.

It's a lot less exciting than endless speculation on our apparent rapid descent into fascism, but it's so damn Canadian it fills me with pride. I particularly like how consumer advocates are included under the umbrella label, "lobby groups." How can this term be a stand-in for "evil emissaries" if it applies to everyone?

And I hope regular readers of this blog have noticed the appearance of a new feature. I've joined iCopyright, a new copyright tagging service promoted in Canada by the good people at Access Copyright. It's still being tested, and is in early stages, but it does look to be a seamless and simple system for all involved in the use and commerce of online intellectual property -- certainly the written kind. Gone is the excuse, "but there was no indication that I couldn't just use it for my own purposes." I mean, that excuse was never valid, but with iCopyright's clickable licensing interface, respect for online intellectual property has never been easier.



[Get Copyright Permissions]Copyright 2008, John Degen. To reproduce or distribute, visit: johndegen.icopyright.com

24 comments:

Infringer said...

Interesting John. But did you review the terms with your lawyer first? They really are rather complicated, especially this part from your terms of use on the iCopyright site:

"This Agreement shall be construed in accordance with the laws of the intellectual property laws of the United States of America and otherwise in accordance with the laws of the jurisdiction where Creator resides or has its headquarters, without giving effect to any conflicts of laws principles."

I think this means that the work is governed by both US and Canadian copyright law. "without giving effect to any conflicts of laws". Does this simply deny the existence of conflict when it appears? How does this work when for example US fair use doctrine allows me to parody your work while Canada's does not? That is a conflict. How do you not give it effect? Not to mention the difference in copyright term in both countries. Wouldn't it have been better to specify which law takes precedence?

I am surprised they don't just strike the whole part about US IP law and simply make it the host nation laws instead. You don't need it. It makes it more complicated, and I'm rather sceptical about its enforcability.

I'm even less impressed that Access Copyright would sign up for something which tries to impose US laws in Canada. Then again, I can't think of when I have ever been impressed by Access Copyright.

John McFetridge said...

"Wouldn't it have been better to specify which law takes precedence?"

Serioulsy? In the real world?

America is our reality. It's always some American product that's the first thing mentioned as an example and it's our biggest market.

And, as they've shown in things like softwood lumber, they aren't interested in international agreements. Wouldn't it be great if we could just ignore them? All of us. But we can't.

We have to make our way as best we can with what we've got to work with. We have to keep one eye on the theoretical and one eye on the reality and move forward as much as we can. We can't stop while we work everything out.

It's like trying to change a flat tire on a moving car.

John said...

Infringer,

You're welcome to misinterpret this service in any way you like. It is your standard MO for copyright anyway. I'm sure no-one will be surprised.

Contracts and licenses are complicated, and are almost always subject to different and differing interpretations (which is why it's so much better when they are signed by both parties in good faith), and yes, international borders exist and with them come differences in laws. Wishing that reality away is childish. Wishing it away for no good reason is pointless childishness.

Access Copyright is working closely with Lawrence Lessig, wikimedia and Creative Commons to create a public domain registry system, and they have hit upon this iCopyright service as a good faith experiment in individual use intellectual property licensing.

By all means DO NOT use this service yourself if you are worried about some form of intellectual rendition. And please, keep us all informed of how your legal practice is going.

Infringer said...

John, as usual your MO is to sling mud at anything you don't like. Like me :-) It is a pity that you debating skills aren't as proficient as your mud slinging skills.

I made a perfectly reasonable and fair criticism that AC is promoting a service which appears to promote US law over Canadian law.

Your response is to tell me that I am misinterpreting the situation. That would be a fair response if you made some effort do demonstrate how that is the case. Instead you say that law is complicated, I am childish, and then proceed off onto a tangent. Brilliant rebuttal!

Infringer said...

"America is our reality. It's always some American product that's the first thing mentioned as an example and it's our biggest market."

Now you're starting to sound like the Tories. That is such a depressing outlook. That is the sort of thinking I'm sure which leads to things like bill C-61.

John McFetridge said...

Well, Darryl, guys like me who've been actively involved in Canadian cultural industries for years and years actually think we're doing something to fight it. Or we did. We never expected a fifth column making it so much harder to maintain what little cultural autonomy we had.

Ignoring the reality isn't "optimistic" it's naive. Better to understand what we're up against. It's not like we have a long record of victories in our trade battles with the US. Stubbornly taking the same approach and losing every time may be the high road, but we still lose.

There's no left wing or right wing in any of this, no Tory or Liberal - certainly we've seen enough opposition parties change their tune when elected to give guys like Scott Brison the credit they deserve ;)

And I'm telling you, if people didn't get down on their knees to Hollywood in this country so much, we'd have a better chance, we might have the slightest bargaining position beyond, "But we're right," which has never worked with anything else. You know, the WTO agrees with us, we're right about softwood lumber, I guess that decision will get all those guys back to work soon....

Now look;

"Hey there Futurama lovers. Only some days left before the new Futurama movie comes out on DVD. I loved Benders Big Score overall and this one takes off right from where we left off previously. If you can't wait you can download it right now on Mininova.com or stream it on Watch-movies.net."

I see variations of this every day on the most amazingly varied forums online. Are the ALL making political statements? Are they willing to lose at politics?

I hope you guys are right, I hope this is the dawning of a wonderful new age for art and creative endeavors worlwide with free exchanges of ideas and money enough for everyone to live well and an end to imperialism. I don't like being a pessimist.

If only history didn't have this nasty habit of repeating so damned much...

Infringer said...

JohnF, I agree with you, so doesn't that mean that we should be pointing out when organization are imposing foreign standards?

Though I realize 'imposing' is probably too strong a word for my original point, as those terms of use are attempting to make some sort of happy consenual couple of US and Canadian law.

I'm still trying to figure out if this has the effect of applying any part of US copyright law here and what happens when there is a conflict. Sigh, but I also suppose no one here would have an easy time answering that.

Isn't great when we have huge massively complicated laws like copyright which govern everyday activities of most of the population.

John McFetridge said...

Life is hugely complicated, there's no way around it. Wishing it was simple won't help - though I do, every day ;)

The problem is we want so much of American culture here in Canada. If we weren't desperate to watch Alien on our iPods (that example in the Globe article says so much more than the asker intended, but it's on the table now) American companies wouldn't care about us.

Also, if we didn't need to sell our cultural products in the US, we could ignore them, but let me tell you, pretty much all the (little) publicity I've got for my books came after a US publisher picked them up, so we need to acceptance there even to get acceptance here.

Again, I every day I wish it wasn't like that. Mabe someday it won't be.

I worked for a movie producer once and he had a drawing above his desk of a little kid wearing a maple leaf t-shirt sitting on the Queen's knee with JFK as the Dad and the caption, "Will this country ever grow up?"

If we just didn't want so much Hollywood crap, this issue would be a lot easier for all of us.

John said...

ifwhinger,

I think you are cherry-picking a clause out of the terms of use and intentionally misinterpreting it for no purpose other than to cast yet more confused doubt upon the entire concept of respectful copyright. That's my opinion when I choose to give you the benefit of the doubt that you intentionally do anything. Most of the time, I think you just flat out get things wrong.

Your weak and entirely ridiculous implication that Access Copyright is somehow working to impose US law in Canada, just so you know, is the reason I mentioned the American scholar Lessig and his American organization Creative Commons. You know, to give you more ammo in your war for our sovereignty. Fight the good fight, brother.

I don't recall referring to you as childish, but I guess if you wish to see yourself in anything I have defined as childish that is your right. I respect your right.

Eo Nomine said...

Infringer said:

"I think this means that the work is governed by both US and Canadian copyright law. "without giving effect to any conflicts of laws". Does this simply deny the existence of conflict when it appears? How does this work when for example US fair use doctrine allows me to parody your work while Canada's does not? That is a conflict. How do you not give it effect? Not to mention the difference in copyright term in both countries. Wouldn't it have been better to specify which law takes precedence?"

Actually, I think this means that, when interpreting the license, US laws apply with respect to intellectual property issue (eg copyright), but the laws of the country where the author resides (eg Canada) applies with respect to all other issues. So, for instance, while US copyright would apply, Canadian contract law would also apply.

A couple of important points:

"Conflicts of law", also referred to as Private International Law, refers to an entire body of law that sets out the default rules that apply when an wrongful act involves multiple jurisdictions and it isn't clear which jurisdiction's laws should apply. For instance, if I'm in the U.K., and you are in Canada, and I somehow manage to obtain your financial information from a bank in France, and then post it to a website hosted in Mexico but owned by a US shell company with assets in Antigua, which is the law that applies? Without some guideance, it would be totally unclear, and conflicts of laws sets the default rules a court would use to figure out which country has jurisdiction over the dispute and which law would apply.

Conflicts of laws is nightmarishly complex to try and navigate, and as the default rules for determining jurisdiction and applicable law can generally be overriden by mutual agreement, its *very* common in all agreements to specify which laws apply to the agreement, and to expressly exclude the application of conflicts of laws principles. This is pretty much a boilerplate provision, and I'd be surprised to see an agreement that didn't include it in some form or another.

It's also important to note that the provision simply establishes which country's laws are applicable to the agreement, not which laws are applicable generally. So, in the event of a dispute between the parties, a court would be required to interpret the agreement in accordance with US copyright law, but otherwise would apply Canadian law. However, in the event of a dispute that fell outside the scope of the agreement, this provision wouldn't apply.

I hope that helps...

Infringer said...

eo nomine, thank you. That was a response that helped immensely. Sadly it does sort of confirm my suspicion regarding the extraterritorial impact of US copyright law in this country.

Probably not a huge issue in a practical sense, but it sure makes my skin crawl. And as I said, I'm disappointed that AC would not have insisted that Canada's copyright laws be applicable over US copyright law.

John, your comments lack any sense of rationality and I don't really want to get into a mud slinging war with you today so I'll just ask. Isn't somebody wanting your presence again in Buffalo?

John said...

ifwhinger,

I ask again, if you don't like how bad faith argumentation is treated on my blog, why are you here?

You have jumped to a pre-determined conclusion -- what? that's so unlike you -- about Access Copyright that does little but show how completely you have swallowed the anti-American pill. And when that's pointed out to you, you sulk about mud.

You seem to be making an accusation about Access Copyright. Prove it.

Infringer said...

Oh John, your debating skills have truly left you.

The only accusation I made about AC (and I think accusation is a strong term) is:

"I'm even less impressed that Access Copyright would sign up for something which tries to impose US laws in Canada."

Kind of mild on the accusation front but hey, I'll back it up if you insist.

1) Access Copyright signed up for this service. Exhibit 1

2) This service imposes US copyright law. Exhibit 2, Exhibit 3

3) My being unimpressed. Well, you got me there. I guess you'll just have to take my word for that one. :-)


As for why I am here. It is to point out the fallacies in your arguments. Not necessarily for your benefit, but for that of your readers. Heck if I didn't do it, someone might actually take you seriously.

Infringer said...

Exhibit 3 link got messed up, it was suppose to point back in this thread to where eo nomine says:

"I think this means that, when interpreting the license, US laws apply with respect to intellectual property issue (eg copyright), but the laws of the country where the author resides (eg Canada) applies with respect to all other issues."

Now what credentials does eo have to give his reasoning weight? Dunno, but his argument is logical and well reasoned. So i'd give it some authority until someone else can provide something better.

Queue John with the mud.....

[infringer ducks head]

John said...

"I'm disappointed that AC would not have insisted that Canada's copyright laws be applicable over US copyright law."

I look forward to your full brief.

Mike O'Donnell said...

Mike O'Donnell here from iCopyright. Allow me to accept some of the blame for the US-centric "terms of use" and clarify how this feature works. The terms are a "default" and meant as a guide for creators, but not meant to necessarily be their terms.

iCopyright needs to do a better job of communicating that each creator can define their own terms of use in their console. We also need to provide samples that are in harmony with the laws of the creator's country and their personal philosophies and objectives. Access Copyright can help us draft default terms that would work better in Canada.

John can use his console to modify his terms of use as he sees fit, as can any rights holder using the service. He shouldn't have to be a lawyer to do this however. He should have good "default" examples that he can simply plug-in.

This discussion has surfaced the need for that feature and I thank you for it. That's why we do these betas, to learn what the users need. We'll fix it!

John said...

Well, thanks so much Mike. I did mention in my original posting that the service is still being tested and is in early stages.

And I did manage to make some changes in my licensing area, but I look forward to more options in the future. I appreciate the service, as it really does -- literally -- put a human face to content, which should go a long way to reminding users that respect is everyone's responsibility, AND it need not be onerous.

Infringer said...

"Well, thanks so much Mike. I did mention in my original posting that the service is still being tested and is in early stages."

Yes well, the difference is in response. I point out an obvious deficiency, and Mike responds that it is a fair criticism that they plan to address. John on the other hand gets all hot and bothered that I'd even have the audacity to make such an 'accusation' in the first place.

The point has been made before John that yours is not the voice of moderation and reason. This thread illustrates that quite well.

John said...

ifwhinger,

We're all still waiting for your brief on how Access Copyright did not stand up for Canada's laws, or for that matter on how iCopyright is trying to impose US law in Canada.

Don't let being proven wrong stand in the way -- let 'er rip.

Yes well.

Infringer said...

"We're all still waiting for your brief on how Access Copyright..."

Wow, seriously John? I thought that was a sarcastic request. Honestly. Frankly I thought it was the closest you would ever get to admitting I was right.

You asked me to justify one sentence I wrote. I think a did a pretty good job of that, and after that, Mike O'Donnell from one of the organizations in question chimed in to say I was right in the first place.

Just what are you expecting? A 500 page thesis? Come on. You don't even bother to admit that anything you say should ever need to be justified, let alone make any attempt to do so.

Sorry John. If my evidence isn't good enough and the words of the fellow from iCopyright doesn't do it either, then there really isn't any point is there?

Check your answering machine John, someone in Buffalo wants you.

John said...

ifwhinger,

It really is unbelievable that you could be this unaware. iCopyright Mike proved only that you went off half-cocked in your criticism of both his service and Access Copyright. Perhaps you were confused by his civility toward you, even after you extended nothing of the sort to his organization.

So, no, I don't expect a 500 page thesis from you. I expect more of the same backpedaling and diverting. At this point, I'm not even sure you can count to 500.

And what is the point of the Buffalo references? You've tried this joke, like, five times without success. Does the word Buffalo amuse you?

Infringer said...

John I was criticizing that AC had signed on to a service which was promoting US copyright law.

Mike admitted that that was what iCopyright was currently doing. He said it was something they need to change. "We also need to provide samples that are in harmony with the laws of the creator's country and their personal philosophies and objectives." The criticisim was justified. Mike admitted it. I'm sorry you don't see it that way, but there is very little I can do about that.

As for the Buffalo reference. That is because I had one of the best and most interesting conversations on your site I've ever had with Russell and JohnMcF. It was while you were in Buffalo. No insults were exchanged at all. It was an honest attempt on all sides to understand the different perspectives. Maybe if you went back to Buffalo there could be another one.

John said...

ifwhinger,

That was about as dishonest a backtrack as you've ever attempted here. It doesn't surprise me a bit.

Infringer said...

John, go back and read my first post. I stand by every single word I wrote. I'll say them again if that pleases you, but I doubt that.

I think this thread is exhausted. There is nothing more intelligent to discuss here and I don't really want to descend into the personal attacks you and xcon are so apt to do.