[IP] The Year in Tech Law from A to Z
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: December 20, 2004 11:25:30 AM EST
To: dave@xxxxxxxxxx
Subject: The Year in Tech Law from A to Z
Dave,
Of possible interest to IP -- my weekly Toronto Star column covers the 
year in technology law from a Canadian perspective.  The column 
highlights several leading cases and policy initiatives including 
copyright and privacy decisions as well as other noteworthy 
developments involving domain names, VoIP, spam, and patents.  Column 
at
<http://geistatozyearinreview.notlong.com/>
MG
Banner year for digital decisions
Michael Geist
Toronto Star
 This past year saw several landmark developments in Canadian 
technology law. The Supreme Court of Canada released a trio of 
important rulings, federal policy makers grappled with difficult issues 
such as copyright and spam, and the Canadian Radio-television and 
Telecommunications Commission (CRTC) held hearings to consider the 
optimal regulatory approach to emerging technologies such as satellite 
radio and Internet telephony. Collectively developments from A to Z are 
certain to have a profound impact on Canadian law and policy for many 
years to come.
  A is for Abika.com, a U.S. company that collects and uses Canadians' 
personal information. The company was the subject of a complaint to 
Jennifer Stoddart, the Privacy Commissioner of Canada, who set some 
troubling limits on the scope of Canada's privacy law by ruling that 
she was unable to investigate the matter since Abika.com does not have 
a physical presence in Canada.
B is for Bangoura v. Washington Post, a controversial Internet 
jurisdiction decision released by the Ontario courts in February. The 
court ruled that Cheickh Bangoura, a former African U.N. official, 
could proceed with a defamation suit against the Washington Post 
concerning an article first published in 1997. The case, which is 
currently under appeal, raised fears of a chill on free speech among 
media companies worldwide.
C is for the Canadian Football League's Ottawa Renegades, who were the 
target of Canada's first spam complaint launched with the Privacy 
Commissioner of Canada (in the interests of full disclosure, I was the 
complainant). The Commissioner ruled that the football team's practice 
of sending unsolicited commercial e-mail to e-mail addresses harvested 
from a publicly-available Web site violated Canada's privacy 
legislation.
D is for Diners Club International, which emerged victorious in one of 
the strangest domain name dispute resolution decisions in recent 
memory. A Canadian domain name dispute resolution panel ordered two 
domain names - diners-club.ca and dinerscard.ca - transferred to the 
credit card issuer despite the absence of evidence that the domains 
were registered in bad faith, a condition mandated by the Canadian 
dispute resolution policy.
E is for Mathew Englander, who successfully challenged Telus' privacy 
practices in connection with its unlisted phone number policy. Although 
unsuccessful with both the Privacy Commissioner of Canada and the 
Federal Court of Canada's trial division, Englander proved his skeptics 
wrong when the Federal Court of Appeal ruled in November that certain 
aspects of Telus' consent process failed to comply with Canada's 
privacy law.
 F is for the Broadcast Flag, a U.S. requirement that all televisions, 
videotape recorders, and computers with digital-TV tuner cards 
distributed after July 2005 be wired to control copying of over-the-air 
digital television signals. In August, a Canadian official indicated 
that Canada was considering following the U.S. approach, despite 
significant copyright and technological innovation concerns.
G is for the Globe and Mail, the newspaper embroiled in a longstanding 
copyright dispute with Heather Robertson, a freelance author. The 
Ontario Court of Appeal ruled in Robertson's favour in October, 
concluding that the use of Robertson's work within the Globe's 
databases fell outside of its copyright.
H is for the Canadian Heritage Parliamentary Committee, which issued a 
series of copyright reform recommendations in May. The recommendations 
generated considerable controversy as the Canadian education community 
noted that if Industry Minister David Emerson and Canadian Heritage 
Minister Liza Frulla adopted the proposals, millions of dollars would 
be siphoned out of Canadian schools. Consumer groups, scientists, and 
privacy advocates also expressed fears that implementation of the 
reforms would harm personal privacy, research and innovation, as well 
as consumer rights.
I is for iTunes, the online music service that finally launched in 
Canada following months of anticipation. While the Canadian Recording 
Industry Association (CRIA) once claimed that the commercial services 
would not enter the Canadian market without copyright reforms, Canadian 
consumers can now choose from several commercial services, including 
Puretracks, Napster.ca, and iTunes, as well as download for private 
copying purposes from peer-to-peer services.
  J is for Judy Marsales, an Ontario MPP who introduced the province's 
first anti-spam bill. Marsales' proposal was one of several anti-spam 
measures proposed in Canadian legislatures in 2004.
K is for Konrad von Finckenstein, the federal court judge who stunned 
the Canadian music industry in March by rejecting their demand that 
Internet service providers identify 29 alleged file sharers. Von 
Finckenstein concluded that the industry had failed to tender 
sufficient evidence tying the alleged infringements to the 29 
individuals. He further raised doubts about whether the industry had 
demonstrated copyright infringement under Canadian law.
  L is for the Law Society of Upper Canada, which won the most 
important copyright case of the year. In March, the Supreme Court of 
Canada ruled that the LSUC had not infringed the copyright of several 
legal publishers by providing photocopy facilities and services at its 
Great Library in Toronto. In doing so, the court provided a strong 
affirmation of the need for balance in copyright law and for respect of 
user rights to maintain that balance.
M is for Monsanto Canada, which emerged victorious in its patent 
dispute with Saskatchewan farmer Percy Schmeiser. The Supreme Court of 
Canada ruled in May that the company held a valid patent for its 
genetically modified seed, though it limited the potential recoverable 
damages in the dispute.
N is for the No-call list, which the federal government introduced in 
December. The proposed legislation mirrors regulations found in the 
U.S. that allow consumers to register their phone number on a 
do-not-call list. The U.S. list now contains more than 66 million phone 
numbers.
O is for Outsourcing and the controversy surrounding the privacy 
implications of the USA Patriot Act. Faced with growing public concern 
about the protection of their personal information, the British 
Columbia government introduced legislative amendments in the fall 
designed to block foreign access to certain personal health information 
of its residents. Notwithstanding the outsourcing community's 
objections that the legislation would be bad for business, the issue 
quickly attracted attention from privacy officials across the country.
P is for Internet Pharmacies and the increasing pressure placed on the 
Canadian industry. While the pharmaceutical industry stoked fears of 
drug supply shortages in Canada, several U.S. states took steps to 
encourage the availability of Canadian-sourced pharmaceuticals.
Q is for Quebec Court of Appeal Justice Danielle Cote who surprised the 
Canadian broadcasting community by overturning the section of the 
Canadian Radiocommunication Act that bans the importation of satellite 
TV signals except through a domestic dealer. The court ruled that the 
Act violates freedom of expression provisions found in the Canadian 
Charter of Rights. The government is appealing the decision.
R is for Ringtones, which now constitute 10 per cent of the global 
music market. SOCAN, a leading copyright collective, applied for a new 
tariff of 10 cents per ringtone to compensate songwriters, a proposal 
opposed by CRIA. The Copyright Board of Canada has scheduled hearings 
on the proposed tariff for February 2005.
S is for Bill S-9, a photography copyright reform bill introduced by 
Senator Joseph Day in October. The bill moved quickly to a Senate 
committee but soon after stalled, beset by concerns from groups that 
the changes would harm consumer rights.
  T is for the Tariff 22 decision, the Supreme Court of Canada's July 
ruling focusing on the liability of Internet service providers for 
music downloading that occurs on their networks. The court sided with 
the ISPs, ruling that they qualify for exemption under the Copyright 
Act when they act as intermediaries in the transfer of data.
U is for unsolicited commercial e-mail, better known as spam. The 
federal government unveiled its anti-spam action plan in May. The plan 
included the establishment of a national anti-spam task force (I am a 
member of the task force), which considered legislative, technical, and 
educational solutions to the spam problem.
V is for Voice-over-Internet telephony, which took centre stage during 
a three-day hearing before the CRTC in September. A ruling on the 
regulatory framework for the fast-growing VoIP market is expected in 
early 2005.
W is for Weir v. Vaquero Energy, an Alberta Internet defamation case 
that raised the prospect for significant damages for online libel. The 
court ruled that defamation online was particularly troubling, and 
surprisingly awarded the plaintiff both general and punitive damages.
  X is for XM radio, one of several new prospective satellite radio 
providers. The CRTC conducted hearings on the entry of satellite radio 
into the Canadian market in the fall, with Canadian artists expressing 
support for the opportunity to have their music reach a broader 
audience.
Y is for Yahoo, which launched a major spam lawsuit against the 
Kitchener-based Head family. Yahoo filed the suit in the United States, 
relying on provisions found in the U.S. CAN-Spam Act. The company 
accused family members of sending 94 million spam e-mails, in violation 
of U.S. anti-spam legislation. After Yahoo reached a settlement with 
the family, Microsoft and Amazon.com soon followed with similar suits 
of their own.
Z is for Zyapex and Dyapex Diet Patches, products that were the subject 
of a false claims investigation by the Canadian Competition Bureau. In 
December the Bureau settled the complaint by extracting conditions from 
the patch promoters that included a ban on using spam to market the 
products.
--
**********************************************************************
 Professor Michael A. Geist
 Canada Research Chair in Internet and E-commerce Law
 University of Ottawa Law School, Common Law Section
 57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
 Tel: 613-562-5800, x3319     Fax: 613-562-5124
 mgeist@xxxxxxxxx              http://www.michaelgeist.ca
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