Osgoode Hall Law School of York University Osgoode Digital Commons Obiter Dicta Alumni & Law School Publications 11-10-2015 Volume 89, Issue 6 (2015) Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/obiter_dicta Part of the Law Commons Recommended Citation "Volume 89, Issue 6 (2015)" (2015). Obiter Dicta. 61. http://digitalcommons.osgoode.yorku.ca/obiter_dicta/61 This Book is brought to you for free and open access by the Alumni & Law School Publications at Osgoode Digital Commons. It has been accepted for inclusion in Obiter Dicta by an authorized administrator of Osgoode Digital Commons. Volume 88 | issue 6 | obiter-dicta.ca The Definitive Source for Osgoode News since 1928 Tuesday, November 10, 2015 FACEBOOK PRIVACY? Who needs that? ê Warning: Recent changes to Facebook privacy settings may have made your old posts public. Photo credit: PC World.com simmy sahdra › news editor ocial media can be a powerful tool, but it attractive aspect being the real-time information also can be like that ex you keep going back to you’re able to receive. but you know you shouldn’t. For example, on It is these interests which have prompted those days when you have an essay to write, Facebook to become less private. Last week Facebook In this Issue... Sexams to study for, a laundry list of things to do, introduced an update to its search feature that editorial and you have spent hours on Instagram, Facebook, includes every public post ever made. In the past, Circumventing Geo-blocks . 2 Twitter, Snapchat, etc. social media outlets, such as Twitter, have been In our generation, social media is impossible to much better than Facebook at gathering information news avoid. It is that power that many different businesses around breaking news. This type of competition led Liberal Campaign Promises . 3 and organizations would like to tap into; it is a readily to the change Facebook made to ensure real time opinion used resource that is filled with information. It may discoverability, the ability to find out what people Environmental Rights . 6 not be transparent, but social media outlets, like are talking about. The change in privacy means now Facebook, not only expose us to advertisements, but anyone can search your old Facebook posts unless at arts & culture also can be a tool to gauge public interest and opinion, the time you had labelled them private, which in the Concert Review . 10 and to further understand how people are reacting past many people did not do because we were under sports to many different things going on in our world. We the assumption these posts were accessible to only Blue Jays . 12 now have people turning to social media to see how our Facebook friends. the public is reacting to breaking news, with the most » see facebook, page 14 2 obiter dicta EDITORIAL Circumventing Geo-blocks a. Osgoode Hall Law School, 0014g Using TPM Protections to label York University 4700 Keele Street Toronto, on m3j 1p3 consumers as theives e. [email protected] w. obiter-dicta.ca t. @obiterdictaoz he first battle cry was heard this past exempts temporary reproductions of copyrighted summer when Bell Media president Mary works if completed for technical reasons. The nature “If you can’t convince them, confuse them.” Ann Turcke announced that “it has to of the Internet is that it makes temporary copies of harry truman become socially unacceptable to admit to content as a fundamental part of how it functions. In T another human being that you are VPNing into U.S. fact, the UK Supreme Court addressed this issue in Netflix.” And with that bold proclamation, a gauntlet Public Relations Consultants Association Limited had been thrown down and Big Media had declared v The Newspaper Licensing Agency Limited [2013] editorial board war on those who it deemed to be robbing them of UKSC 18 at [2] where it stated, editor-in-chief | Sam Michaels the compensation they so justly deserved. It almost [I]f it is an infringement merely to view copyright managing editor | Erin Garbett seems telling that the disdain toward the practice of material, without downloading or printing out, creative director | Heather Pringle geo-dodging – using virtual private networks (VPNs) then those who browse the internet are likely editorial staff to access geographically restricted services – came unintentionally to incur civil liability, at least in business managers | Alvin Qian, Vincent Neil Ho from a normative stance rather than relying on the principle, by merely coming upon a web-page communications manager | Carla Marti coercion of positive law. It was a well planned strategy containing copyright material in the course of copy editor | Melissa Belmonte, Shannon Corregan to appeal to the public’s sense of morality where the browsing. This seems an unacceptable result, which neWs editor | Simmy Sahdra law isn’t able to provide a bright line on the issue. As would make infringers of many millions of ordinary opinions editor | Nadia Aboufariss Michael Geist stated, “while Canadian broadcasters users of the internet across the EU who use browsers arts & culture editor | Kathleen Killin may be unhappy with subscribers that access the U.S. and search engines for private as well as commercial sports editor | Kenneth Lam service, the problem is primarily a competitive issue, purposes. layout editor | Karen Wang not a legal one.” By drawing an analogy between the two, it Website editor | Asad Akhtar The ambiguous legal footing comes from recently becomes difficult to maintain that viewing streaming introduced provisions in Canada’s Copyright Act that content is infringement while surfing the Internet staff writers prohibit the circumvention of technical protection is not. Arguments supporting that accessing Evan Ivkovic, Shannon Corregan, Anthony Choi, measures (TPMs). These provisions tie circumvention unauthorized streaming content is infringement Michael Motala, Kareem Webster, Esther Mendelsohn, of a TPM to infringement of the protected work. It suggest that although the prohibition might fall Jerico Espinas, Henry Limheng is unclear whether geo-blocking – measures taken under a different section of the Act, circumvention contributors by online sites to limit access to their products is no different than using copyright material Lisa-Marie Williams, Ab Currie, Maha Mansoor or services to a particular geographical area – is without consent. The problem with this view is that considered to fall under the category of TPMs and, it still assumes that merely accessing the streamed Submissions for the November24 issue are further, whether circumvention through the use of a content is tantamount to infringement which is due at 5pm on November 14. Articles should range VPN would be deemed as infringement. Nevertheless, not necessarily true. Accessing these sites may be a between 700 - 1200 words and be submitted to: content owners insist that the practice of geo- breach of contract but, absent a clear violation of an [email protected]. blocking is properly viewed as a TPM protected under owner’s exclusive rights, it is certainly not copyright the Act. The justification lies in the assumption that infringement. TheObiter Dicta is published biweekly circumvention of geo-blocks is for the purpose of It’s interesting to note that the TPM provisions during the school year, and is printed by accessing unauthorized streaming content, which were introduced into Canadian copyright law back in Weller Publishing Co. Ltd. is then deemed to be infringement. The biggest flaw 2012 as the price to be paid in order to join the Trans- Obiter Dicta is the official student newspaper with the assertion is that it mistakes a necessary Pacific Partnership (TPP) negotiations. As a result of of Osgoode Hall Law School. The opinions expressed condition for a sufficient one. While it may be coming late to the table, Canada was added to the in the articles contained herein are not necessarily necessary to have circumvented a TPM to infringe negotiations with a “second tier” status that bound those of the Obiter staff. The Obiter reserves the copyright, mere circumvention alone is not sufficient the government to terms that had already been agreed right to refuse any submission that is judged to be to conclude that infringement has in fact occurred. upon – including provisions relating to the protection libelous or defamatory, contains personal attacks, or As many academics have pointed out, the provisions of TPMs. For the most part, treaty obligations should is discriminatory on the basis of sex, race, religion, stretch the recognizable limits of the Act by creating be designed to promote globalization and free trade. or sexual orientation. Submissions may be edited for a right of access where one previously did not exist. The idea is to provide consumers access to a greater length and/or content. Any legitimacy for these prohibitions that is tied to choice of products and services. However, this choice infringement of copyright rests on a thinly-disguised is stymied if the Copyright Act is used as a Trojan faulty logic. horse to introduce barriers that prevent consumers Even if we put issues of circumvention aside, from freely accessing content. Geo-blocking better the more interesting question is whether accessing serves as a tool for geographic market segmentation unauthorized streaming content can be considered rather than copyright protection. The goals of infringement. Has the consumer actually created copyright policy are not advanced by provisions that an infringing copy by merely accessing streaming grant protection to owners for the methods they use content in an outside jurisdiction through a VPN? to prevent access to their works. That is an issue that When a consumer downloads even part of a file is entirely outside the scope of copyright law and – often called “pseudo-streaming” – this likely better suited within the realm of private contract law.