Canadian Michaela Keyserlingk lost her husband Robert to mesothelioma in 2009. That's the form of cancer commonly associated with exposure to asbestos. Not surprisingly, she's not particularly happy about asbestos, and she's taken to running online banner ads against asbestos as part of her response. The ads say: "Canada is the only western country that still exports deadly asbestos." And, here's the tricky part: it apparently includes the logo of the (ruling) Conservative Party in Canada. As Rob Hyndman alerts us, the Conservative Party is not at all happy. In fact, it's threatening to sue her for trademark infringement. The Globe & Mail story linked here doesn't do anything useful like show the actual banner, so we've hunted it down, and you can see it below:
That's the party's logo on the right, of course. You can see why the party might be upset, but damn, was it ever a braindead move to threaten a poor old widow for trademark infringement over something like this. As even the woman notes, she doesn't have much money. Threatening and/or suing her doesn't do a damn thing... other than give her campaign a ton of free attention.
Two of Canada's big three telcos have recently appointed former cabinet ministers of the ruling party's government to their respective boards. A few weeks ago, Bell appointed Jim Prentice, who was responsible for telecom policy and regulating companies like Bell while serving as Minister of Industry in 2007-2008. Then, while former cabinet minister Stockwell Day's new "government relations" not-a-lobbying-firm has raised concerns about loopholes in lobbying laws, this past weekend Telus named Day to its board. (How long until Rogers aligns with industry standards and finds an ex-minister of their own?) OpenMedia.ca decried bothappointments as examples of big telecom "cozying up to the government," but journalist Peter Nowak argues it's the system's fault: "Lobbying is so pervasive and deeply integrated" into the system that the only way to deal with it seems to be to "fight fire with fire," as even new wireless carriers have quickly learned -- i.e. don't hate the players, hate the game.
Neither Prentice nor Day will be lobbyists, but it seems obvious that their knowledge of government is being sought for the purposes of lobbying. In the broadband space, Bell has been butting heads with the government and regulators over issues like wholesale usage-based billing. In the wireless space, the next spectrum auction is approaching and incumbents want to avoid a repeat of the last auction, where 40% of the spectrum was reserved for new entrants and the government forced incumbents to offer roaming agreements -- rules ironically set by Bell's new board member, Jim Prentice.
Are these appointments examples of regulatory capture? It might appear that way. It's certainly a case of telcos gearing up for a heavy round of lobbying that's unlikely to favor consumers, but it's hardly a case of blatantrevolvingdoors. Day was not actually responsible for telecom policy, and Prentice was behind rules that angered incumbents. If the government favors incumbents in the next spectrum auction or backs down on wholesale usage-based billing, that would be a different story, but Canadian incumbents are scrambling because they've lost some big battles. This isn't so much a cause for deep concern as it is a challenge to those who favor more competition in Canada to keep pressing the government to follow through on what it's started.
Wow! We keep pointing out how bills like Senator Amy Klobuchar's S.978 anti-streaming bill and Senator Patrick Leahy's PROTECT IP Act will be abused by US law enforcement, and we keep being told that those bills aren't "intended" to be used the way they could be. I think part of the problem is that people don't realize how the Justice Department and US Attorneys will sometimes stretch and twist the law just to go after someone.
Last month, we wrote about the absolutely ridiculous case by the US against former Cisco engineer Peter Adekeye. The details have to be read to be believed, but most of it only came to light because a Canadian judge absolutely blasted both Cisco and the US Attorneys for what clearly appeared to be an unnecessarily vindictive criminal prosecution against Adekeye because he filed an antitrust lawsuit against Cisco, after Cisco tried to block third party companies (such as one of Adekeye's) from accessing necessary patches to service certain Cisco equipment.
The whole story was horrifying, but we thought it ended in May when the judge let Adekeye go and gave the Justice Department a pretty big slap for its actions. But... no. Slashdot points us to the news that the Justice Department has just unveiled a new indictment against Adekeye over the same issue: basically someone at Cisco gave Adekeye a login to download patches, and he did exactly that. This is not, in any way, a matter that should involve the Justice Department. The judge in Canada made that clear. The story about Adekeye shows the Justice Department acting for bad reasons -- either incompetence, corruption or malice (pick any two!). And you would think that someone there might think twice before pushing ahead with bogus prosecution against Adekeye (who's finally back in Switzerland after being stuck in Canada for a year), but that's not how the US works.
And this is why we get very afraid when Congress looks to pass broad new legislation that may impact criminal statutes and the kinds of things that US Attorneys can charge people over. I'd like to believe that US Attorneys are good people trying to stop and punish crimes, but we've seen too many cases where it appears that their actions are incredibly questionable. I'm still hopeful that it's just a few bad seeds among the ranks of US Attorneys, but if we keep seeing stories like this...
1. Columbia Bible College (BC) 2. Royal Roads University (BC) 3. Quest University (BC) 4. University of Calgary (AB) 5. Lethbridge College (AB) 6. University of Alberta (AB) 7. Mount Royal University (AB) 8. Portage College (AB) 9. Athabasca University (AB) 10. NorQuest College (AB) 11. University of Manitoba (MB) 12. University of Saskatchewan (SK) 13. University of Regina (SK) 14. University of Guelph (ON) 15. Queens University (ON) 16. University of Waterloo (ON) 17. University of Windsor (ON) 18. York University (ON) 19. Carleton University (ON) 20. Holland College (PEI) 21. University of PEI (PEI) 22. University of New Brunswick (NB) 23. Memorial University (NL) 24. Mount Saint Vincent University (NS) 25. Acadia University (NS) 26. Dalhousie University (NS)
As Geist points out, this is going to hit Access Copyright hard:
The current list includes 14 of the 25 biggest Canadian universities (as measured by the number of students).
Looks like Access Copyright is going to have to swiftly familiarize itself with an economic truism, one that most politicians seem unable to comprehend: If you tax something (and that's really what this is -- an arbitrary fee that enables Access Copyright to stay solvent enough to ask for more arbitrary fees), you get less of it.
This sort of misguided thinking rarely troubles businesses that provide products and services. These businesses are (usually) at the mercy of the customers who help determine, via "vote by wallet," what they can charge for their products. However, entities like royalty collection services and governments somehow still feel that they can increase their fees in order to increase their total income, despite repeated evidence to the contrary.
Same thing here. By asking for more (much more), Access Copyright is pricing itself right out of the market. At this point its balance sheets are going to need a complete overhaul. This short-sighted plan most likely led to irrational exuberance at the AC offices, but once everyone sobers up (and that list of universities is pretty sobering), they're going to find that a 1,300% fee increase is going to do some particularly ugly things to the bottom line.
Even worse, this tariff is supposed to benefit the many writers, artists, etc. that Access Copyright represents. So, through no fault of their own, these "represented" artists are going to see diminishing returns on their investment in copyright. Whoever came up with the "skyrocketing tariff" plan needs to be removed from their position posthaste. (Unless Access Copyright is taking suggestions from mailroom clerks or that one guy at the end of the bar, in which case no further action is necessary. Or wise.) Sooner or later, the practice of increasing fees to offset dwindling revenue catches up with businesses like these and they end up fading away, trying desperately to multiply by zero.
Slashdot points us to a troubling report out of Canada, concerning a scientist who appears to have been given something of a gag order concerning her research about depleted salmon stocks. I have to admit that the article in the Vancouver Sun is not particularly clear at all as to why the scientist herself can't just speak out. I'm a bit confused about how Canadian laws work on this, but apparently there's a Privy Council Office, which has the power to block the scientist, Kristi Miller, from talking about her research:
The documents show major media outlets were soon lining up to speak with Miller, but the Privy Council Office said no to the interviews.
The Privy Council Office also nixed a Fisheries Department news release about Miller's study, saying the release "was not very good, focused on salmon dying and not on the new science aspect," according to documents obtained by Postmedia News under the Access to Information Act.
Miller is still not allowed to speak publicly about her discovery, and the Privy Council Office and Fisheries Department defend the way she has been silenced.
What I don't understand -- and perhaps some Canadian law experts could jump in and explain -- is how this particular office can prevent Miller from speaking out herself, though that's clearly the implication of the article. The reasoning given by the Privy Council Office and the Fisheries Department doesn't make much sense either:
The Privy Council Office and the Fisheries Department said Miller has not been permitted to discuss her work because of the Cohen Commission, a judicial inquiry created by the prime minister to look into declines of the famed Fraser River sockeye salmon. She is expected to appear before the commission in late August.
But how would reporting the actual results of a study relevant to the Commission be a problem? That part isn't clearly explained either, leading to the obvious implication that the government simply doesn't like what's in the report, and would prefer that it not be discussed. Of course, if that was the goal... it seems to have backfired.
We've written a bunch about Canadian copyright collecting society Access Copyright, which gets universities to pay up for a license to cover people photocopying educational material. The organization doesn't really distribute very much of its money to content creators and yet it's been seeking a massive 1,300% increase in fees -- and Access Copyright claims that even if professors just link to copyrighted content, they have to clear that through Access Copyright.
Not everyone believes that's the case. The University of Calgary has said that the new fees are way too high, and it will no longer use Access Copyright at all. Instead, it will seek to clear any copyrights directly, when needed, or otherwise encourage professors to link to material online that students can use. It will be interesting to see if Access Copyright challenges the university for doing so. How much do you want to bet that Access Copyright will now be snooping around, looking for a professor who fails to properly clear a photocopy somewhere.
Whenever we talk about the very serious risks and likely abuses of new laws favored by the entertainment industry -- such as PROTECT IP and the felony streaming bill, S.978, supporters of those bills insist that we're crazy for suggesting that the laws will be abused or that there will be any unintended consequences. We're told, over and over and over again that these laws are designed for and targeted only at the "worst of the worst." They're targeted at "rogue" actors, who must be stopped.
And yet, we've seen all too often how US officials have abused other such laws to attack and protect certain US companies from competition. A whole bunch of you have been sending over this incredibly frightening example of the Justice Department conspiring with Cisco to effectively try to destroy a former exec's life for daring to file an antitrust claim against Cisco, due to Cisco's desire to block competitors from servicing some of its products. Unfortunately, I actually found the version of the story at the Ars Technica link above a bit confusing (and it buries many of the key points). A much better way to understand just what Cisco and some federal prosecutors appear to have done is to read the ruling, embedded below, from a Canadian judge, who explains the whole thing clearly and bashes Cisco and the US Justice Department for its incredible overreach, for no reason other than to try to destroy the life of Peter Adekeye.
Adekeye, born in Nigeria, but a UK citizen, had apparently been a quite successful Cisco exec in both the UK and the US for many years. In 2005, he left Cisco and started a couple of companies himself, including one, Multiven, that offered to help provide maintenance services for various Cisco equipment. Apparently, Cisco tried to force customers into purchasing maintenance contracts only from them by denying third parties, such as Multiven, access to various bug reports and fixes. Because of this, Multiven sued Cisco, claiming antitrust violations. Cisco then countersued, including suing Adekeye directly, claiming that Adekeye had accessed Cisco's internal network illegally over 90 times. Adekeye does not appear to deny accessing Cisco's internal systems, but notes that he was given the login information from a Cisco employee, which he believed meant he was now authorized to use the system. It sounds like he used this access to get some of the info that Cisco had been denying Multiven. As part of its "hardball" litigation strategy, Cisco also sought to get the federal government to file criminal charges against Adekeye based on the exact same issue.
Separate from all of this, Adekeye had been dealing with attempts to get a work visa to be in the US for Multiven. The court ruling documents the incredibly ridiculous bureaucratic nightmare that Adekeye went through over the period of a few years in an attempt to seek proper visas to work in the US. At no time does it appear that Adekeye violated the various visas he did have. In fact, it sounds as though Adekeye bent over backwards (and then some) to always comply with US immigration and visa rules, even when it resulted in absolutely ridiculous circumstances, such as when he wasn't allowed back into the US, even though he'd been granted his H-1B visa. That story is crazy, but tangential to the point here -- though I suggest reading the ruling to get a sense of the ridiculousness of US immigration and visa policy.
In part because he was unable to get back into the US, Adekeye moved to Switzerland where a new Multiven office was opened, and continued his efforts to get his immigration status cleared up. As part of the ongoing legal dispute, Cisco wanted to depose Adekeye. Adekeye applied for permission to enter the US to do that... but was denied, and he was told if he went anyway, it could harm his chances of getting his visa status fixed. And Cisco used this to their advantage:
Notwithstanding this entirely reasonable explanation for his inability to attend a U.S. deposition, Cisco had the unmitigated gall to commence contempt proceedings for the applicant's "failure" to attend a U.S. deposition. It was, of course, unsuccessful, but it speaks volumes for Cisco's duplicity.
Eventually, all of the parties agreed to handle the deposition in Vancouver. It was outside the US, but close to Cisco's offices here in Silicon Valley. There was a separate (again tangential) issue involving the belief (which may not have been accurate, apparently) that a US deposition could happen in Canada without having to alert Canadian officials. It was at this deposition hearing in Vancouver on May 19th of last year that things got crazy. Cisco, knowing full well where Adekeye was and why he was in Vancouver -- and that he had tried and failed to get to the US -- apparently told the US Attorneys, who they'd been pushing to file criminal charges, about Adekeye's presence in Vancouver. The Justice Department then filed its criminal charges -- once again totally abusing the Computer Fraud & Abuse Act (CFAA) to make Adekeye's actions sound much worse than they actually were, and had a warrant issued for Adekeye's arrest.
They then sought rather extraordinary efforts from the Canadian government to arrest Adekeye immediately. Part of that, according to the Canadian judge who issued this ruling, appeared to involve a US Attorney leaving out key information, making blatantly false insinuations about other facts, and in some cases, what appears to just be lying:
The affidavit made no mention of the fact that United States immigration authorities had refused the applicant entry to the United States. No mention was made that the applicant had no criminal record. No mention was made that the United States Federal Court had ordered a deposition in Vancouver, presided over by a "special master" at which six or more United States lawyers would be present. No mention was made that the criminal complaint "mirrored" a counterclaim brought by Cisco in the main action in which the applicant was seeking large damages in an antitrust suit.
Sinister inferences were suggested, leading to an inference that the applicant would be a flight risk. The affidavit stated that the applicant "is a Nigerian citizen who claims to have citizenship from the United Kingdom", and that he possibly had British citizenship, and that he was in Canada on a Nigerian passport. The latter reference invited an inference he might flee to Nigeria, a country from which extradition was highly unlikely. In fact, U.S. authorities well knew and had a duty to disclose to the issuing judge that the applicant was a citizen of the United Kingdom and possessed a British passport, on which passport he had entered Canada. They also knew and had a duty to disclose that he had been a resident of England, but was currently residing with his wife and child in Switzerland, and that he had travelled from Switzerland to Canada for purposes of the deposition.
What happened then was somewhat astounding. In the middle of the deposition, RCMP officials walked into the room, interrupted the deposition in progress and arrested Adekeye in the middle of the proceedings. The beginning of this is on videotape. Adekeye, his lawyers, and the "special master" clearly have no idea what's going on, but what's notable is that, while people repeatedly ask for the recording to be turned off, Cisco's lawyers immediately say that the recording should be left on. It appears they knew exactly what was going on and wanted the humiliating arrest on the deposition tape. You can see the video below. As the judge in this ruling notes, the police's actions "could be compared to entering a courtroom and arresting a person during the course of his or her testimony. It is simply not done in a civilized jurisdiction that is bound by the rule of law."
Believe it or not, the situation then gets even worse and even more egregious. Adekeye was, in fact, arrested -- and the charges could have resulted in almost 500 years in jail, all for accessing a Cisco network with a password given to him by a Cisco employee. As you can see, he was removed from the deposition, much to the confusion of the special master appointed by the US court. After being arrested, he asked for bail, and Richard Cheng, an Assistant US Attorney for the Justice Department, sent a letter that was chock full of false and misleading information, which the judge in this case goes through step by step. It falsely implies that Adekeye did not really have British citizenship and that he did not really live in Switzerland. It stated that he used his Nigerian passport to enter the US under an E visa, which was not true. It claimed that the US had denied all of Adekeye's attempts to obtain a visa to visit the US since 2007, which as the ruling now notes "is simply not true." It also falsely stated that Adekeye had fled from law enforcement in the past. Again, the ruling noted "this statement was completely untrue."
And yet, federal officials continued to seek extradition. Even then, months after the arrest, the civil suit between Cisco and Multiven were settled, in a manner that everyone agrees was a "win" for Multiven, with Cisco changing its policy. So the key matter over which this highly questionable criminal charge was brought was settled. And yet, the feds continued to push forward. It was only in May of this year, a year after his arrest, that this new ruling came out and freed Adekeye to leave Canada and go back home.
Honestly, the whole story is really terrifying and makes me depressed to think that my government would do something like this. However, it should seriously call into question whether or not new laws like S.978 and the PROTECT IP Act should be allowed. It seems clear that the Justice Department has no problem using very questionable means to act as the private bullies of certain large companies. It should also call into question some of the recent efforts by other US Attorneys from the Justice Department, such as the efforts in coordination with Homeland Security/ICE to seize domains on questionable evidence, the attempt to extradite Richard O'Dwyer from the UK over very questionable charges and, of course, the recent charges against Aaron Swartz.
All of these cases have key factors in common. They involve what at best should be minor civil issues between private parties in court -- but in which, due to the presence of certain large industry interests, the Justice Department steps in and starts throwing its considerable weight around, including insane possible punishment, all because of dubious and often extremely misleading claims from these private interests. It's possible that the Justice Department officials here are simply incompetent (and honestly, that's an only slightly more comforting idea than the alternative) and unable to realize they're being manipulated by companies seeking to stamp out competition. But it's certainly demonstrating a really horrifying pattern of questionable behavior by the Justice Department and US Attorneys not to focus on real criminal behavior, but to abuse the criminal justice system to take vindictive action against potential competitors for big US industry players.
TorrentFreak points out that the much maligned Canadian Recording Industry Association (CRIA) has apparently decided to change its name to Music Canada. I'm wondering if that's false advertising. The group represents the big record labels, not music. In fact, many of its policies are anti-musician. Of course, there are others who have pointed out that the "Canadian" bit of their name has been false advertising as well, since the group basically takes orders from the RIAA. So, if you have an organization that isn't really run by Canadian interests, and who doesn't represent music -- but a small group of middlemen who profit from screwing over musicians -- is it really fair to call yourself Music Canada?
For many, many years we've pointed out that the debate over "network neutrality" in the US was a red herring. The discussions around net neutrality are really just a symptom of the real problem: that we lack true competition in the broadband market. Furthermore, we've noted that any attempt to put in place net neutrality regulations would likely be a failure, because of the lobbying clout of the likes of AT&T and others. The end result would be incredibly favorable to the telcos, not to the public and, in fact, we've seen glimpses of that happening already.
Adding another datapoint (or, several) to this debate is Michael Geist, who got access to information about how Canadian regulators enforced that country's net neutrality rules and discovered that regulators there basically don't enforce a damn thing. They more or less let the telcos do what they want.
Although the CRTC has not publicly disclosed details on net neutrality complaints and the resulting investigations, I recently filed an Access to Information request to learn more about what has been taking place behind the scenes. A review of hundreds of pages of documents discloses that virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process. In fact, the CRTC has frequently dismissed complaints as being outside of the scope of the policy, lacking in evidence, or sided with Internet provider practices. Rogers Communications has been the target of nearly half of all cases opened in response to net neutrality complaints. In recent months, there have been multiple complaints arising from bandwidth throttling of World of Warcraft, a popular multi-player online game. Rogers initially denied any wrongdoing, only to later acknowledge that there was a problem. The company promised to address the issue, though no consequences arose and it was not forced to publicly disclose the issue.
Once again, the problem is not with net neutrality, but with a lack of competition. If you had real competition, people would choose to go with more neutral providers, forcing the market to follow. It's the lack of competition that lets telcos push for less than neutral solutions, and it's the regulatory capture that makes any attempt to legislate neutrality next to useless.
Suing fans is not a business model. And yet, so many companies still do it. We've written a few times about porn producer Corbin Fisher/Liberty Media, who has become a very aggressive supporter of mass lawsuits against fans who it accuses of sharing its works. This is a dumb business strategy. The company, obviously, thinks it will reduce infringement, but I can't fathom how it thinks this will get anyone to ever want to purchase from the company again. Perhaps it thinks it can stay in business through legal fees collected. For example, it sued some guy in Canada for sharing two of its movies, and since he didn't come to the US (though he had sent a letter) to defend himself, the court granted a default ruling in favor of the company, though (thankfully) it disagreed with the company's ridiculous assertion that merely using BitTorrent proves willful infringement. There are some who believe that a default judgment (when the defendant doesn't show up), means that the plaintiff always wins. It doesn't need to work that way, and we have seen courts actually rule against plaintiffs even under such circumstances though it's incredibly rare. Still, the end result is that the court has ordered the guy to pay nearly $64,000.