[Cdn-DMCA] Fw: DMCA on signup

[Jason Young]

I'm not a lawyer yet, but I'll take a shot...

Illegal means "against the law" and I can't think of how referencing 
the DMCA in a contract would be against any Canadian law (e.g. 
landlords can't charge you fees if you pay your rent late - though 
many tenancy agreements would claim otherwise). Specifically, I can't 
imagine the "safe harbour" provision of the DMCA - which is what CIUC 
(unconsciously) refers to - contravenes any Canadian law unless CIUC 
is a government agency, in which case you may be able to make a 
Charter argument on freedom of expression grounds. But referencing 
the DMCA outright as if it was Canadian law certainly is odious, as I 
already stated in the Broadband Forum (see below).

This is not the first time I've seen this type of language. I have 
also seen references to COPPA, a U.S. statute that governs the 
collection, use and disclosure of personal information from children 
under 13 on the Internet. Anyone using Postnuke/or a Postnuke-enabled 
site will be familiar with the 13 year or older membership catch page 
which is an implicit reference to COPPA. At a conference in January, 
Michael Geist used, as an example, the Technodome case in which a 
Canadian trademark holder filed an in rem suit against the Canadian 
domain registrant of technodome.com (There's a case brief in my notes 
for that conference here 
http://www.lexinformatica.org/dox/censorhship). In a sentence, the 
U.S. court ruled that it had jurisdiction over two Canadians because 
the trademark holder would not have appropriate recourse in Canada.

Here's the Broadband post:

Factually incorrect information is floating around this forum 
regarding the DMCA.
First, the DMCA is *not* a copyright statute. It sits on top of the 
U.S. Copyright Act and make it illegal to A) circumvent technological 
protection measures ("TPM") used by copyright owners to protect their 
content; B) traffic in a technology or device whose primary purpose 
is to circumvent TPM and which has limited commercial use outside of 
circumvention; and, C) alter or remove rights management information 
("RMI"). The definition of RMI includes the title of the work, name 
of the author, copyright owner, etc. as well as the terms of use of 
the content.
The DMCA is actually two mini-acts. The first act is what I've 
detailed above. The second provides a so-called "safe harbour" for 
ISPs. The safe harbour (or "harbor" as the Yanks say) protects ISPs 
from vicarious liability for copyright infringement by their users, 
who may or may not be engaged in direct infringement. To benefit from 
safe harbour, the ISP has to follow a "notice and takedown" procedure 
when they receive notice that infringing material has been found on 
one of their servers. That procedure includes notifying the 
originator of the content that a third party has alleged their 
content is infringing the third party's copyright, and allowing the 
originator a chance to respond before action is taken.
Second, Canada does not yet have a comparable "notice and takedown" 
procedure and it certainly doesn't have a "mini-DMCA" as I-AM-Net 
claims. The link provided in the earlier post was to the Canadian 
Copyright Act, which is law and has absolutely nothing to do with the 
DMCA, just as the DMCA has nothing to do with copyright infringement. 
In 1999, the Copyright Board considered a "notice and takedown" 
regime with approval in the Tariff 22 decision 
»www.lexinformatica.org/copyright/[?]
Third, someone pointed out that ISPs have a right to factor copyright 
infringement and liability into their ToS. The problem is, of course, 
who determines what is infringing? The ISP? Do you want an ISP that 
claims, quite incorrectly, that Canada has their own mini-DMCA or 
that they are bound by the U.S. DMCA to determine whether content you 
post on their servers is infringing? Do you think that they will 
protect your right, as a Canadian, to freedom of expression? The 
answer to all of these questions is: no.
I find it offensive that any Canadian ISP would subscribe to a legal 
standard only found in American law, but it is not particularly 
uncommon nor is it limited to the DMCA (e.g. I found an ISP that had 
a reference to the U.S. COPPA statute recently and convinced them to 
rewrite the clause to reference even stronger Canadian legislation.). 
Further, if an ISP is large enough to have assets in the U.S., it may 
(unfortunately) be the easiest route to minimizing their exposure to 
liability in the U.S.. What I find particularly odious about CIUC's 
ToS is that it directly references the DMCA, rather than outlining an 
appropriate "notice and takedown" procedure. CIUC's attempt to 
protect themselves by referencing U.S. law simply tells me that they 
either haven't read the act, have a poor understanding of the legal 
environment in which they operate and/or have poor legal counsel. If 
they don't understand their own rights, how can you possibly expect 
them to understand yours?
Where does this leave us? Canada is heading towards a "notice and 
takedown" regime. This is inevitable. What concerned individuals need 
to do is to lobby ISP's, the Canadian Association of Internet 
Providers and Parliament to adopt a "notice and takedown" procedure 
that protects the limited scope and term of copyright, protects the 
individual's right to post or communicate anonymously on the 
Internet, and discourages content owners from bullying ISPs into 
restricting freedom of speech.
If you currently subscribe to CIUC or I-Am-Net (which, despite being 
nicer does not have a clue), I would encourage you to bring this to 
their attention and, if they are not responsive, to vote with your 
feet and find another provider. If you are not a subscriber, I would 
encourage you to send an email expressing your distaste - as I will - 
with their policies.
A last remark: a good place to keep on top Canadian digital copyright 
reform is Russell McOrmond's DMCA Opponent's Forum 
»www.flora.org/dmca/[?]
Jason

At 22:49 -0400 02.07.14, Fergal Warde wrote:
>IAM-Net.com has this clause in their AUP too. Isn't this illegal to 
>enforce foreign laws on Canadian soil? (without any warrant or 
>extradition of course). Any lawyers want to comment on this?
>
>-Fergal
>
>--
>For (un)subscription information, posting guidelines and
>links to other related sites please see http://www.flora.org/dmca/


-- 

Jason Young
Law Fellow, EPIC
---
http://www.lexinformatica.org
http://www.privaterra.org
http://www.epic.org
830F AE11 91C5 946E CF80  684C F13C 79C3 46E1 1518
--
For (un)subscription information, posting guidelines and
links to other related sites please see http://www.flora.org/dmca/