Last night I appeared on George Stroumboulopoulos Tonight with a short "Soapbox" segment to explain mounting concerns over Bill C-11. The program has posted a video version of my comments on some of the digital lock issues in the bill and the demands for SOPA-style amendments.

Akamai has released its latest State of the Internet Report and it finds that Canada continues to slide in global broadband rankings. Last year, the Akamai report was often favoured by those who took issue with criticisms of Canadian broadband, claiming it offered "an objective sanity check" on comparative broadband speeds. If so, even Akamai now finds Canadian broadband declining when compared to other countries. Just six months ago, Canada was tied for 9th in average broadband speed. According to the latest report, Canada now sits tied with Hungary for 14th behind countries that include the United Arab Emirates, Romania, the Czech Republic, and Ireland. On the peak connection speed, Canada ranks 19th in the world. The data isn't very impressive on the mobile broadband metrics either. The mobile broadband speed measured carriers around the world including one Canadian carrier. The Canadian carrier ranked 68th worldwide for average broadband speed, below carriers in every region of the world.

The video from Ontario Privacy Commissioner Ann Cavoukian's excellent forum on lawful access is now available. Well worth watching.

The CRTC yesterday released new net neutrality complaints data. The data shows a significant increase in the number of complaints in the last quarter of 2011 when compared with the prior two years. I wrote about the complaints issue in July 2011 based on data obtained under the Access to Information Act.

European opposition to ACTA continues to mount with Poland's culture minister admitting that it may not be approved by the Polish parliament and the Slovenian ambassador to Japan apologizing for signing ACTA last week.

Distributel, another leading independent ISP, has announced that it plans to offer unlimited plans to customers in Quebec as a consequence of the CRTC capacity based billing decision.

In recent days there has been massive new interest in Canadian copyright reform as thousands of people write to their MPs to express concern about the prospect of adding SOPA-style rules to Bill C-11 (there are even plans for public protests beginning to emerge). The interest has resulted in some completely unacceptable threats and confusion - some claiming that the Canadian bill will be passed within 14 days (not true) and others stating that proposed SOPA-style changes are nothing more than technical changes to the bill (also not true).  Even the mainstream media is getting into the mix, with the Financial Post's Terrance Corcoran offering his "expert" legal opinion that CRIA's lawyers are likely to lose their lawsuit against isoHunt.  Given the importance of Canadians speaking out accurately on Bill C-11, ACTA, and the TPP, I've posted ten key questions and answers to sort through the claims. The first eight questions address the links between Bill C-11 and SOPA as well as proposed changes to the current copyright law. The final two question focus on ACTA and the TPP. 1.    What, if anything, are the links between current Bill C-11 and SOPA? Bill C-11, the Canadian copyright reform bill, is the latest iteration of several attempts at Canadian copyright reform. There is a lot to like about the bill: it includes an expansion of the fair dealing provision, new consumer rights for format shifting, time shifting, and backup copies, a provision facilitating user generated content, a new distinction between commercial and non-commercial infringement, as well as a fair and effective approach to Internet provider liability. Some of these provisions are not perfect (flexible fair dealing would be better than the C-11 model, eliminating statutory damages for non-commercial infringement is needed), but the bill is far better than prior Conservative copyright bills. As I have stated since its introduction, Bill C-11 is flawed but fixable. The major problem with the bill remains the digital lock provisions, which eviscerate many of the new consumer rights and undermine fair dealing. The approach has been widely criticized by dozens of groups representing business, creators, consumers, educators, and librarians. The proponents of the digital lock rules are chiefly U.S.-backed lobby groups, the same groups that were behind SOPA in the U.S. In fact, there is considerable evidence that the Canadian approach is a direct result of ongoing U.S. pressure on the issue. Had SOPA passed, it included a provision requiring further linkages between U.S. trade pressure and intellectual property policy. 2.    Could Bill C-11 become more like SOPA? Yes. Last week, I noted that music and entertainment software lobby groups have proposed SOPA-style changes to C-11. For example, the industry wants language to similar to that found in SOPA on blocking access to websites, demanding new provisions that would "permit a court to make an order blocking a pirate site such as The Pirate Bay to protect the Canadian marketplace from foreign pirate sites." Section 102 of SOPA also envisioned blocking of websites. Several lobby groups also want language similar to that found in the infamous Section 103 of SOPA. That provision, which spoke of sites "primarily designed or operated for the purpose of...offering goods or services in a manner that engages in, enables, or facilitates" infringement, raised fears that it could be used to shut down mainstream sites such as Youtube. According to a music industry document, Bill C-11's "enabler provision" should be expanded to include "services that are primarily operated to enable infringement or which induce infringement." Those demands are echoed by the Entertainment Software Association of Canada, which called on the government to "amend the enabling provision to ensure that it applies to services that are "designed or operated" primarily to enable acts of infringement." Both groups also want statutory damages added to the enabler provision so that liability can run into the millions of dollars for a target website. Bill C-11 committee member Dean Del Mastro, a Conservative MP, specifically referenced the enabler provision in a recent interview about potential changes and there are rumours that the U.S. government is pushing the Canadian government to toughen the enabler provision (while keeping the digital lock rules unchanged). 3.    Are there plans to add "three strikes and you're out" Internet termination rules to Bill C-11? The government has indicated that it does not want to add Internet termination (often called graduated response) to the bill.  However, the music industry is demanding that Internet providers be required to adopt a termination policy for subscribers that are alleged to be repeat infringers. According to the music industry document: To incent service providers to cooperate in stemming piracy by requiring them to adopt and reasonably implement a policy to prevent the use of their services by repeat infringers and by conditioning the availability of service provider exceptions on this being done. This demand would move Canada toward the graduated response policy that could result in loss of Internet service for Internet users. There is no indication in the music industry document of due process or even proof of infringement. 4.    Are these SOPA-style changes simply technical amendments? No. The expansion of the enabler provision to include SOPA-style rules could create new legal risk for legitimate websites.  For example, last week I illustrated how the rules could be used to target online video sites such as Youtube.  If those proposed changes are adopted, it could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation. 5.    Can Bill C-11 be fixed? I believe the answer is yes. First, the SOPA-style demands, including website blocking, Internet termination, and expanded liability, must be rejected. Second, the digital lock provisions must be fixed by linking circumvention of digital locks to copyright infringement. Such an approach enjoys broad support as it would provide legal protection for digital locks, be consistent with the WIPO Internet treaties, and follow the model of trading partners such as New Zealand and Switzerland. 6.    Aren't these digital lock rules needed to help the music industry? No. As the industry itself now promotes, Canada is a leader when it comes to online music sales. Canada is the 6th largest market for recorded music in the world, ranking 6th for digital sales and 7th for physical sales. Digital sales have grown faster in Canada than the U.S. for the past five consecutive years. There are wide range of online music services in Canada, all created without restrictive digital lock rules. I delivered a full talk on the issue titled Why Copyright Reform Is Not the Cure for What Ails the Music Industry last year at the Nova Scotia Music Week conference (talk sources). 7.    Aren't these digital lock rules needed to help the entertainment software industry? No. The Entertainment Software Association of Canada has been one of the most outspoken proponents of restrictive digital lock rules. Yet its own evidence demonstrates why balanced digital lock rules do not put the industry at risk. In 2007, it released a report called Entertainment Software: The Industry in Canada, which estimated that there were approximately 9,000 video game jobs in Canada. Four years later, the industry has grown to 16,000 jobs, yet Canada has had no digital lock legislation during that period. In other words, without any changes to Canadian copyright law, the industry has emerged as a major success story. Not only is the claim unsupported by years of experience, but when the industry was recently asked about perceived risks, copyright concerns fell well down on the list. Last year, the ESAC commissioned a study by SECOR Consulting that surveyed the industry and asked for the top three risks faced by the Canadian video game industry over the next two to five years. Copyright ranked far behind many other concerns. 8.   Aren't these digital lock rules needed to be compliant with international law? No. While digital lock rules are needed to comply with the WIPO Internet treaties (which Canada has signed but not ratified), the treaties offer considerable flexibility in their implementation. I addressed the issue in great detail in a peer-reviewed article on the topic. The article is part of a larger book on Bill C-32 (the predecessor to C-11) called From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda. It is available as a Creative Commons licensed download. 9.    Where does Canada stand on the Anti-Counterfeiting Trade Agreement (ACTA)? Canada signed ACTA in October of last year. At the moment, ratification of ACTA will require legislative change in Canada.  Some of those changes are contained in Bill C-11, but not all. A second intellectual property enforcement bill is expected to be introduced in Canada later this year that will provide new powers to customs officials as well as other measures. The Department of Foreign Affairs is presently conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2. 10.    Where does Canada stand on the Trans Pacific Partnership Agreement (TPP)? The Canadian government filed notice of a public consultation on December 31, 2011 on the possible Canadian entry into the Trans Pacific Partnership negotiations, trade talks that could result in an extension in the term of copyright that would mean nothing new would enter the Canadian public domain until 2032 or beyond. The TPP covers a wide range of issues, but its intellectual property rules as contemplated by leaked U.S. drafts would extend the term of copyright, require even stricter digital lock rules, restrict trade in parallel imports, and increase various infringement penalties. I've written about the effect in Canada here, here, and here. The major intellectual property lobby groups want to keep Canada out of the deal until we cave to the current U.S. copyright demands. The IIPA, which represents the major movie, music, and software lobby associations, points to copyright reform and new border measures as evidence of the need for Canadian reforms and states "we urge the U.S. government to use Canada’s expression of interest in the TPP negotiations as an opportunity to resolve these longstanding concerns about IPR standards and enforcement." These are the same groups that supported SOPA in the U.S. The consultation is open until February 14, 2012. All it takes a single email with your name, address, and comments on the issue. The email can be sent to consultations@ international.gc.ca. Alternatively, submissions can be sent by fax (613-944-3489) or mail (Trade Negotiations Consultations (TPP), Foreign Affairs and International Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).

Over 2,000 academics have joined a boycott against Elsevier Publishing, one of the world's largest academic publishers, over its support of an anti-open access bill.

Mike Masnick of Techdirt-fame has written a new report commissioned by the Consumer and Communications Industry Association that demonstrates how the entertainment industry is growing at a rapid pace.

The University of Toronto and Western have signed an agreement with Access Copyright that will see their students pay $27.50 per year to the copyright collective. Update: Howard Knopf and Sam Trosow both provide analysis of the agreement explaining why it represents a big win for Access Copyright.

Throughout the fall, I ran a daily digital lock dissenter series, pointing to a wide range of organizations representing creators, consumers, businesses, educators, historians, archivists, and librarians who have issued policy statements that are at odds with the government's approach to digital locks in Bill C-11. While the series took a break over the Parliamentary holiday, it resumes this week with more groups and individuals that have spoken out against restrictive digital lock legislation that fails to strike a fair balance. New posts will begin tomorrow, but it may be helpful to recount the series to date, which illustrates that no amount of spin can disguise the obvious opposition from groups representing millions of Canadians to the Bill C-11 digital lock provisions: Type of Group Digital Lock Dissenters Business Retail Council of Canada Business Coalition for Balanced Copyright Canadian Bookseller Association The Canadian Association for Open Source Literary Press Group of Canada Association of Book Publishers of British Columbia Association of Canadian Publishers Campus Stores Canada Digital Security Coalition Battlegoat Studios Creators Documentary Organization of Canada Appropriation Art Writers Guild of Canada ACTRA Canadian Music Creators Coalition Consumers Canadian Consumer Initiative Public Interest Advocacy Centre Union des consommateurs Educators Canadian Teachers' Federation Council of Ministers of Education Canada Canadian Home and School Federation Canadian Federation for the Humanities and Social Sciences Canadian Association of Media Education Associations Film Studies Association of Canada Association of Canadian Community Colleges Association of Universities and Colleges of Canada Canadian Association of University Teachers Canadian Political Science Association British Columbia Teachers' Federation Queen's University Students Canadian Federation of Students Federation Etudiante Universitaire du Quebec Canadian Alliance of Student Associations Historians/Archivists Canadian Council of Archives Canadian Historical Association Association of Newfoundland and Labrador Archives City of Vancouver Archives Librarians Canadian Library Association Canadian Association of Research Libraries Canadian Association of Law Libraries Canadian Association of Music Libraries, Archives and Documentation Centres Association pour l’avancement des sciences et des techniques de la documentation (ASTED New Brunswick Public Library Service Canadian Urban Library Council Ontario Council of University Libraries Visually Impaired Provincial Resource Centre for the Visually Impaired (PRCVI) BC Canadian National Institute for the Blind Canadian Association of Educational Resource Centres for Alternate Format Materials Rights/Freedoms Canadian Civil Liberties Association Canadian Bar Association Privacy Commissioner of Canada CIPPIC

The protests against the Anti-Counterfeiting Trade Agreement continue to spread in cities across Europe. The protests began in Poland, where thousands have taken to the streets and opposition politicians have worn Guy Fawkes masks in protest against the country signing the agreement last week. The scenes from Poland are remarkable, demonstrating the widespread anger over the decision to join ACTA. This weekend the protests have spread beyond Poland, with hundreds protesting in the Czech Republic, Belgium, and in cities across France including Paris, Lyon, and Bordeaux (further Paris video here). There have also been reports of smaller protests in London and Dublin. The ACTA protests appear to be spreading as there are plans for protests next week in the Czech Republic, the Netherlands, Ireland, and Sweden. A full rundown of protest plans can be found here.  The European Parliament is scheduled to vote on the agreement later this year.

The reverberations from the SOPA fight continue to be felt in the U.S. (excellent analysis from Benkler and Downes) and elsewhere (mounting Canadian concern that Bill C-11 could be amended to adopt SOPA-like rules), but it is the Anti-Counterfeiting Trade Agreement that has captured increasing attention this week. Several months after the majority of ACTA participants signed the agreement, most European Union countries formally signed the agreement yesterday (notable exclusions include Germany, the Netherlands, Estonia, Cyprus and Slovakia).  This has generated a flurry of furious protest: thousands have taken to the streets in protest in Poland, nearly 250,000 people have signed a petition against the agreement, and a Member of the European Parliament has resigned his position as rapporteur to scrutinize the agreement, concluding that the entire review process is a "charade." Some are characterizing ACTA as worse than SOPA, but the reality is somewhat more complicated. From a substantive perspective, ACTA's Internet provisions are plainly not as bad as those contemplated by SOPA. Over the course of several years of public protest and pressure, the Internet provisions were gradually watered down with the removal of three strikes and you're out language. Other controversial provisions on statutory damages and anti-camcording rules were made optional rather than mandatory. While the Internet provisions may not be as bad as SOPA, the remainder of the agreement raises many significant concerns. Countries such as India have expressed concern that it conflicts with the TRIPS Agreement. Other elements of the agreement increase the standards in the WIPO Internet Treaties and the commercial scale definition at the WTO. The agreement adds new criminal provisions, pressures ISPs to take greater action, and heightens border measures. There remains ongoing debate as to whether the substance of ACTA requires legislative change in many signatory countries (a somewhat dated site on many ACTA issues here). Beyond the substantive concerns, the ACTA process remains a major issue as it sets a dangerous precedent for international IP agreements. For years, the ACTA process was shrouded in secrecy, with only the occasional leak bringing plans to light. Wikileaks cables confirmed that the secrecy was viewed as a serious problem in many participant countries. In fact, even as most countries supported greater transparency and the release of draft texts, the U.S. steadfastly refused, using transparency as a bargaining chip to extract concessions from other negotiating partners. In addition to the transparency problems during the negotiations, the express exclusion of many countries from the process raises real fears that they will face increased pressure to meet ACTA standards in the years ahead. Given the ongoing concerns, the big question now is whether much can be done. The majority of ACTA countries have signed the agreement, but it will only take effect once five countries have formally implemented and ratified it. That is not expected until at least May 2013, opening the door to stopping the agreement from taking effect. While there are global initiatives such as the AccessNow petition, much of the activity has shifted to specific countries or regions:

• Europe is home to the most active anti-ACTA effort since there is still a possibility that the European Parliament may reject the treaty. There remain serious doubts about whether ACTA is consistent with the EU Acquis.  Learn more about what can be done at La Quadrature du Net, EDRI, the Open Rights Group, and FFII.
• In Canada, the Department of Foreign Affairs is conducting an open consultation on ACTA. Email your comments to the department or write Consultations and Liaison Division (BSL), Anti-Counterfeiting Trade Agreement (ACTA), Foreign Affairs and International Trade Canada, Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario, K1A 0G2. A March 2011 Standing Committee on Canadian Heritage report recommended limiting Canada's ACTA commitments.
• In the U.S., much of the focus is on whether ACTA must be approved by Congress. Senator Wyden has raised questions about the issue. KEI has extensive coverage of the U.S. perspective on ACTA.
• In Australia, the Joint Standing Committee on Treaties is accepting submissions on ACTA until January 27, 2012 (Kim Weatherall's submission here). Australia tabled the agreement in Parliament on November 21, 2011 and has taken the position the agreement will not require any legislative changes. The Australia Productivity Commission recommended in 2010 that Australia not include IP provisions in trade agreements.
• The New Zealand government has posted information on ACTA on its website.
• Switzerland and Mexico have yet to sign ACTA.

The dangers associated with ACTA are not limited to this particular agreement. The agreement opens the door to further secretive negotiations, such as the Trans Pacific Partnership, which contain extensive IP provisions that extend beyond ACTA.  The SOPA battle was a big win for those concerned with balanced copyright and the open Internet, but it is by no means the end of the fight.

For many years, the most prominent critic of the Canadian online music market has been the industry itself. The Canadian Recording Industry Association (now known as Music Canada) has consistently argued that few would want to invest in Canada due to the state of our copyright laws. For example, in 2009, CRIA President Graham Henderson published an op-ed that said our trading partners were racing ahead of Canada, which he argued was a product of Canadian copyright law. A year later, Universal Music Canada appeared before the Standing Committee on Canadian Heritage and told MPs the legal uncertainty meant that the investment was going to other countries. This week, the industry seemingly decided to change its tune. It released a new guide on licensing digital music in Canada that identifies the key organizations that license music in Canada, including the record labels and several copyright collectives. The report highlights how there are services in Canada in all the major segments, including digital downloads, non-interactive streaming, on-demand streaming, and music videos. There are two things particularly noteworthy about the report. The first is that the industry is suddenly promoting statistics that show Canada is actually a leader when it comes to online music sales, noting that Canada is the 6th largest market for recorded music in the world, ranking 6th for digital sales and 7th for physical sales (it might have also noted the digital sales have grown faster in Canada than the U.S. for the past five consecutive years). It also cites new survey data confirming that young Canadians are music buyers, which it says leads to the conclusion that Canada "is a digital greenfield opportunity." This is huge shift from an industry association that a few years ago likened Canada to the HBO series Deadwood. The second is that the guide provides further evidence of the creation of a digital music market in Canada without digital lock legislation. The guide points to download services such as iTunes, Hip Digital, Puretracks, Archambault, HMV Digital, 7Digital; non-interactive streaming services such as Galaxie Mobile and Slacker Radio; on-demand streaming such as Rdio, BBM Music, and Zune Music Pass; and streaming music videos such as YouTube and Vevo. Some of these services use digital locks, some don't. The experience to date demonstrates that establishing success online music services is a business issue, not a legal one. The claim that a balanced approach to digital locks would harm these businesses (when all these services have launched with no legal protection for digital locks) is undermined by the industry's own data, which points to an investment opportunity and the 6th ranked market in the world.

Several excellent pieces assessing the recent battle over SOPA have been posted over the past few days. They include:

• Larry Downes, has a great piece titled Who Really Stopped SOPA, and Why?
• Yochai Benkler on Seven Lessons from SOPA/PIPA/Megauplaod and Four Proposals on Where We Go From Here
• The Hollywood Reporter provides the industry perspective on how it lost the legislative fight.
• Art Brodsky of Public Knowledge illustrates why defeating SOPA is not cause to declare victory just yet.

Jesse Brown blogs on the push to introduce SOPA style rules into Canadian copyright reform.

Canada's offer to the Europeans in the Canada-EU Trade Agreement negotiations on several key areas leaked yesterday. The documents reveal that Canada wants both telecom foreign ownership and cultural protections kept out the agreement.

My post this week on the behind-the-scenes demands to make Bill C-11, the current copyright bill, more like SOPA has attracted considerable attention with mainstream (National Post, La Presse) and online media (Mashable, Wire Report) covering the story. The music industry alone is seeking over a dozen changes to the bill, including website blocking, Internet termination for alleged repeat infringers, and an expansion of the "enabler" provision that is supposedly designed to target pirate sites. Meanwhile, the Entertainment Software Association of Canada also wants an expansion of the enabler provision along with further tightening of the already-restrictive digital lock rules. The concern with expanding the enabler provision is that overly broad language could create increased legal risk for legitimate websites. As a result, new online businesses may avoid investing in Canada for fear of potential liability or costly lawsuits. My post cited concerns about SOPA being used to target sites like Youtube and the danger that that could spill over into Canada. Industry lawyer Barry Sookman responds in the National Post article, arguing that it is "inconceivable" and "not remotely possible" that the law could be used to shut down a mainstream site like Youtube. Millions of Internet users certainly hope Sookman is right, yet recent experience suggests that the content industry is open to using these kinds of provisions in massive lawsuits against sites like Youtube. For example, consider the ongoing Viacom lawsuit against Youtube/Google.  Viacom lost at the trial level in 2010, but has appealed the decision. The SOPA-style enabler provision under Bill C-11 that the content industry is demanding  would include six factors for a court to consider. Contrast the Bill C-11 factors that a court may consider with Viacom's claims in its appellate brief: Bill C-11 Enabler Provision Factors Viacom's Claims whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement "YouTube’s founders built an integrated media entertainment business, in the district court’s words, by “welcom[ing] copyright-infringing material being placed on their website.”  That copyrighted material was “attractive to users” and “enhanced defendants’ income from advertisements,” enabling YouTube’s founders to sell the business to Google for $1.65 billion." whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement "Almost immediately after YouTube came online, YouTube became aware of widespread infringement on its site.  And it was the copyrighted videos—not home movies—that people flocked to YouTube to see." whether the service has significant uses other than to enable acts of copyright infringement "In their written presentation to Google’s board and senior management, Google’s financial advisors stated that 60 percent of YouTube’s views were “premium” —i.e., copyrighted—and only 10 percent of the premium videos were licensed." the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so "Dunton similarly put a stop to efforts to implement software that would notify copyright owners when infringing videos were uploaded.  Even though a YouTube engineer said that implementing an automated anti-infringement tool to alert copyright owners when suspected  infringing content was uploaded “isn’t hard” and would “take another day or [weekend],”  Dunton ordered the engineer to “forget about the email alerts stuff” because “we’re just trying to cover our asses so we don’t get sued.”" any benefits the person received as a result of enabling the acts of copyright infringement "Unable to compete with YouTube’s pirated content, in late 2006, Google bought YouTube for $1.65 billion." the economic viability of the provision of the service if it were not used to enable acts of copyright infringement "As early as June of 2005, YouTube’s Internet service provider complained that YouTube was violating its user agreement by, YouTube founder Steve Chen believed, “hosting copyrighted content.”  But Chen resolved that YouTube was “not about to take down content because our ISP is giving us shit.”  And, in emails with the other founders, he later remarked “we need to attract traffic. . . .  [T]he only reason why our traffic surged was due to a video of this type”—i.e., copyrighted and unauthorized" This is obviously one side of the story and is an appeal from a decision that ruled in Youtube's favour, concluding the site is protected by the safe harbours found in the DMCA. Moreover, the same kind of suit launched against Veoh, another online video site, recently also failed (though it cost the founder his company). Yet reading the Viacom claims makes it clear that applying its arguments to a SOPA-version of the Bill C-11 enabler clause (which content groups want expanded to include operating or inducing infringement) could create a huge chill in the investment and technology community in Canada. Online video sites, cloud computing sites, and other online services may look at the Bill C-11 and fear that even a lawsuit could create massive costs, scare away investors, and stifle new innovation. Indeed, a recent study by Booz & Company found this to be a very real problem, with a large majority of the angel investors and venture capitalists saying they will not put their money in digital content intermediaries if governments pass tough new rules allowing websites to be sued or fined for infringing digital content posted by users. The U.S. has dropped SOPA, but now incredibly Canada may consider the very provisions that causes investors to become skittish. The Business Coalition for Balanced Copyright, which includes leading technology, telecom, retail, and Internet companies, has already expressed concern with the Bill C-11 digital lock rules. Turning Bill C-11 into a Canadian SOPA would only make matters worse, creating a legal framework that would harm Canadian business and consumers.

Last week's Wikipedia-led blackout in protest of U.S. copyright legislation called the Stop Online Piracy Act (SOPA) is being hailed by some as the Internet Spring, the day that millions fought back against restrictive legislative proposals that posed a serious threat to an open Internet. The protests were derided by critics as a gimmick, but my weekly technology law column (Toronto Star version, homepage version) notes it is hard to see how the SOPA protest can be fairly characterized as anything other than a stunning success. Wikipedia reports that 162 million people viewed its blackout page during the 24-hour protest period. By comparison, the most-watched television program of 2011, the Super Bowl, attracted 111 million viewers. More impressive were the number of people who took action. Eight million Wikipedia visitors looked up contact information for their elected representatives, seven million people signed a Google petition, and Engine Advocacy reported that it was completing 2,000 phone calls per second to local members of Congress. The protest launched a political earthquake as previously supportive politicians raced for the exits. According to ProPublica, the day before the protest, 80 members of Congress supported the legislation and 31 opposed. Two days later, there were only 63 supporters and 122 opposed. The SOPA protest ranks as the largest online action to date, but it was foreshadowed by similar developments around the world. In 2007, tens of thousands of Canadians used Facebook to register their concern with impending copyright legislation (I launched one of the main groups involved). In response, the government delayed introducing the legislation by six months, during which it added several provisions aimed at pacifying the public criticism. In 2009, thousands of people in New Zealand launched their own blackout campaign against proposed "three strikes and you're out" copyright legislation that would have led to Internet users losing access based on three allegations of infringement. Users blacked out websites and profiles on Facebook and Twitter. The New Zealand government responded by withdrawing the legislation. The similarities between the SOPA protest and digital activism in other countries does not end there. In virtually all cases, opponents dismiss protesters as pirates or pawns (or in the case of Canadian Heritage Minister James Moore, "radical extremists") who lack a genuine understanding of the issues. Yet the Motion Picture Association of America is happy to trot out well-known movie stars with little copyright law familiarity since they are guaranteed to garner attention. Moreover, during earlier SOPA hearings, several politicians seemed to take pride in their lack of technical knowledge and experience.   The MPAA called the protests "an abuse of power" by platforms that serve as gateways to information, a particularly rich claim coming from a group that once threatened to delay screening movies in Canada unless it passed new copyright rules and still requires its customers to sit through unskippable anti-piracy messages at the beginning of movies on DVDs or at the theatre. Most troubling were lobbyists who lamented the politicians' shifting policy positions due to the popular protest, as if their own preferred approach of spending millions on campaign contributions is somehow a more democratic method of lawmaking. It may be tempting for SOPA protesters to declare victory, but history teaches that political wins are rarely absolute.  The current Canadian legislation, Bill C-11, is much more balanced than the 2007 proposal, but the digital lock provisions that sparked the initial protest remain largely unchanged. In New Zealand, the government later introduced a more balanced bill with greater safeguards, but the prospect of terminating Internet access was not completely eliminated. SOPA appears to be headed for the dustbin, but successor U.S. legislation is sure to follow. A political consensus on anti-piracy legislation will eventually emerge, but the day the Internet fought back will remain the elephant in the room for years to come.

Joe Karaganis has a must-read post on the piracy figures involving Megaupload, as he persuasively argues that the profitability of piracy on cloud storage sites is massively overstated.