eye weekly
Thursday, September 18, 1997

Lawyers lost in cyberspace

by Ingrid Hein, ingrid@eye.net

Installing the newest version of Adobe Photoshop or Illustrator brings on a mixture of anticipation and anxiety for graphic artists.

On the one hand, it's exciting to discover new features and enhanced capabilities in an upgrade, and whether or not all those bugs and limitations you've cursed for the last year have been fixed. On the other, you just have to cross your fingers that the suggestions you made about the beta version were taken into account.

Then again, it could be worse -- think about the way the government operates. If only they knew how to upgrade the legal system the way programmers upgrade software. Canadian law is still mostly vaporware when it comes to the Internet.

About a hundred lawyers and representatives from major Internet service providers (ISPs) filled the Alberta room at the Royal York Hotel last week to talk about Internet content liability, copyright and a handful of other issues. The talks were hosted by Industry Canada, a federal government body concerned with bolstering and informing Canadian business. The study is slated for publication late this year.

The two major groups each had their own agenda. Because laws governing electronic information are unclear, ISP owners are worried they could be held liable when criminal activity they weren't even aware of takes place via their systems. Internet users upload information every day on ISP servers that could be could be questioned by authorities.

On one hand, ISPs could be treated like telephone companies, which merely provide the wires for transferring information. On the other hand, by databasing information on their servers, they could also be defined as broadcasters.

The lawyers were there to try to fit new technology into current laws and regulations, which sometimes took a real stretch of the definitions.

Lawyer Mark Hayes, from the firm Fasken Campbell Godfrey, wrote the copyright section in last year's Industry Canada study. He was there this time around as a "facilitator" and had a few ideas of his own. Hayes terms ISPs "intermediaries -- any party that exists between 'posting' and 'receiving' information". He said that when it comes down to it, "as an ISP, if you take something off the server, you're not in a worse position than if you had done nothing."

Hayes notes that every user is in technical violation of copyright law when a web page is stored in a browser's cache. Caching is a memory system used by browsers like Netscape and Internet Explorer that makes your second visit to a site faster, since part of it is already on your computer.

But the idea of "reproductions" is a copyright faux pas, so copyright lawyers found this issue particularly enticing. Imagine if every time an ISP cached a certain web page to make downloading easier for their clients, a particular web page owner could charge that ISP "reproduction" costs (akin to the Cancopy system that reimburses Canadian publishers for photocopies made in libraries). The revenue from this could become an easy way for content providers to make a buck.


There weren't any civil libertarians kicking around at the Toronto session, but when I contacted David Jones of Electronic Frontier Canada after the event, he said he's heard it all before.

"Lawyers are in a conflict of interest when it comes to drafting legislation", he said. "If a lay person can read the laws and understand them, the lawyers have done themselves out of a job. It's in a lawyer's interest to have legislation that has room for disagreement. If you ask a lawyer a question, 'is this legal or not', they'll say it depends. They have to formulate an argument."

Ian Kyer, president of the Canadian IT (Information Technology) Law Association, a one-year-old organization, said that lawyers are cynical about changing laws. They would rather coin definitions saying that the Internet is "like" the telephone or "like" broadcasting. He said they're not into total upgrades for two reasons,

"Firstly, lawyers know how long it takes to get a new law through", he said.

"Secondly, the Internet by its nature is international. Even if we could come up with a new way of regulating the net, we couldn't really use it, unless we could convince the rest of the world to use it, too."

And so the Industry Canada report blunders on with no real answers in sight, only interpretations of current legislation and some new buzzwords. It's too bad, because the study, while not legally binding in any way, could have an effect when legislators are looking for help to draft a new law.

It's time to upgrade. Beta versions are too buggy, and like software developers looking for "debuggers," Industry Canada could use a hand. It wouldn't hurt if some people actually using the Net day-to-day had their say. Discussion papers can be submitted to Industry Canada until Nov. 15 to aid the study.

The most recent upgrade to the Canadian Copyright Act, Bill C-32, was passed last spring and came into effect Sept. 1. Most of the upgrade was about definitions. "broadcaster", "communication signal", "copyright", and "sound recording" were among words redefined to "modernize" the law.

No wonder lawyers are worried. If we've just defined "sound recording" in legal terms three years before the millennium, then how long will it take to define a cache?

Copyright © 1997 by Ingrid Hein. All Rights Reserved. Reprinted with permission.