In an important decision rendered on June 13, 2014, a Canadian court ordered Google to block a website that was selling goods that violated the trade secrets of the plaintiffs. The plaintiffs obtained a default judgment against the defendants. But, the defendants continued to sell the offending goods over the Internet. The plaintiffs, unable to enforce their judgment, asked for Google’s help in blocking the website. Google voluntarily de-indexed specific URL’s requested by the plaintiffs, but this “whac-a-mole” process was ineffective. When Google refused to de-index the offending websites from its search results, the plaintiffs brought a motion against Google for interim relief requiring Google to de-index the websites. Over Google’s objections, in Equustek Solutions Inc. v. Jack 2014 BCSC 1063, Madam Justice Fenlon of the British Columbia Supreme Court granted the injunction.
On Friday, the Copyright Board released a decision and certified two SOCAN tariffs, Tariffs 22.D.1 (Internet – Online Audiovisual Services) and 22.D.2 (Internet – User-Generated Content). The years covered by the tariffs are 2007-2013.
The tariffs were certified based on agreements reached between SOCAN and objectors. Between the objectors and other entities which filed submissions, the heavyweights affected by the tariffs participated including Apple, Yahoo!, YouTube, Netflix, Facebook, Cineplex, the members of the Canadian Association of Broadcasters (CAB), and the Canadian ISPS Rogers, Bell, and Shaw.
Michael Geist loves Canada’s anti-spam law (CASL). He was one of the first witnesses called by the Government to support it (then Bill C-27) when it came before the Standing Committee on Industry, Science and Technology. He told the Committee to resist attempts to change it. He later urged Minister Moore not to listen to the tsunami from across all sectors of Canadian society to fix CASL calling the criticisms Festivus grievances, Now that CASL is law and the public is ridiculing it calling it, among other things, a Monty-Python-esque farce and Spamaflop, deeply stupid, and a sledgehammer that is ludicrous regulatory overkill, he once again tries to defend it. If anyone could defend CASL, it would be Michael Geist. However, CASL is indefensible and his attempts to defend it clearly show there is no policy basis on which it can be justified and that It should be scrapped or amended.
The Government just revised the fightspam.ca website. The site now has more information about CASL and how it will be enforced. In addition, and likely because of the heavy criticisms of CASL, the site purports to clarify some “myths” about CASL.
The new website does give facts about CASL, although they are incomplete. Some of the so called myths about CASL are more fact than myths. For example:
The first week under Canada’s anti-spam legislation (CASL) is nearly over. The media and blogosphere gave CASL a lot of coverage. Much of it was negative. Here is a summary of some of the highlights.
I was interviewed on The Current, Metro Morning, and CJAD Radio. The Current and Metro Morning radio shows also featured individuals who voiced concerns about CASL’s impacts on small businesses. Michael Geist was also interviewed on The Current. He defended CASL claiming it was not onerous for small businesses who were already collecting express consents under PIPEDA. Peter Nowak also defended CASL in a post in Canadian Business Why Canada’s Anti-Spam Law won’t harm small businesses.
CASL’s rules apply to any person that sends commercial electronic messages to members of the public including charities and other not for profit organizations. The indiscriminate targeting of everyone from real spam culprits to genuine commercial communications is one of the reasons that Terrance Corcoran from the Financial Post recently called Canada’s new anti-spam law “a Monty-Python-esque farce”.
CASL, in its present form, should never have targeted charities or not for profit organizations. According to some, CASL punishes charities for no good reason.
Check out Terrence Corcoran’s opinion article on CASL in this morning’s Financial Post: Spamaflop! Why Ottawa’s spam ban law is absurd and should be overturned. Here are a few choice quotes:
“I could say that Canada’s new anti-spam law is both horrifying and stupid, but Mark Joseph Stern, writing in Slate Magazine, already said that the other day. One could also call it absurd, interventionist, controlling, costly, offense and an all-too-typical Tory mega-solution to a mostly non-problem.”
The “anti-spam” portion of Canada’s anti-spam/spyware law (CASL) comes into effect on July 1, 2014. Most organizations are having very difficult times adapting to CASL’s confusing and prescriptive rules. According to a recent mini-survey conducted by the Canadian Chamber of Commerce of over 160 of its members, from responses to questions answered over 90% of Canadian organizations believe that CASL should be scrapped, amended, or at least be subject to a Parliamentary review before it becomes law. Over 80% believe it will not be effective against the most harmful sources of spam. 63% believe that it will make business more difficult for them. Most believe CASL’s consent, disclosure and unsubscribe requirements are disproportionate and unreasonable. 56% believe CASL will impede the creation of a business environment driven by entrepreneurs that encourages jobs, growth and long term prosperity for Canadians.
The Supreme Court of the United States ruled in a 6 to 3 opinion yesterday that Aereo’s Internet retransmission service infringes copyright. Aereo had tried to architect its television restransmission system to avoid paying copyright royalties or license fees by “renting” dime sized antennae to subscribers. Judge Chin of the US Second Circuit Court of Appeals had called Aereo’s service “a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” In American Broadcasting Cos. v. Aereo, Inc., the SCOTUS agreed telling Aereo essentially, it looked like a cable retransmitter, it acted like a cable retransmitter, Congress had specifically amended the Copyright Act to ensure that cable retransmitters publically performed when they delivered programming to subscribers, and that Aereo’s service was indistinguishable in any meaningful way from those services.
Many businesses are in the midst of trying to become CASL compliant. They hate it. As I explained in a previous post, CASL will hit the SME sector very hard. According to a recent article about it in the Globe:
Marketers big and small facing this legislative change are criticizing it as costly to implement, penalizing to small businesses, and not targeted enough at the spammers who are the real problem in the world of e-mail advertising.