Archive for September, 2012

Good News: Craigslist drops exclusive license to your posts

Wednesday, September 12th, 2012

3tap is a platform for developers

Other

What is 3taps?

3taps is a platform for developers. It provides free APIs for building on top of Craigslist data.

Once we perfect the Craigslist firehose, we’ll bring in other sources like: eBay, Etsy, indeed, Linkedin, etc.

Good News: Craigslist drops exclusive license to your posts

In a welcome course correction, craigslist has removed its short-lived provision that required users to grant it an exclusive license to–in other words granting them ownership of–every post. We were unhappily surprised to see this click-through demand, but are glad to see that craigslist has promptly removed it.

For many years, craigslist has been a good digital citizen. Its opposition to SOPA/PIPA was critically important, and it has been at the forefront of challenges to Section 230 and freedom of expression online. We understand that craigslist faces real challenges in trying to preserve its character and does not want third parties to simply reuse its content in ways that are out of line with its user community’s expectations and could be harmful to its users.

Nevertheless, it was important for craigslist to remove the provision because claiming an exclusive license to the user’s posts–to the exclusion of everyone, including the original poster–would have harmed both innovation and users’ rights, and would have set a terrible precedent. We met with craigslist to discuss this recently and are pleased about their prompt action.

The exclusive license was first noticed about a week ago, shortly after news broke of craigslist’s lawsuit against 3Tap and PadMapper. The posting provision said:

Clicking “Continue” confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.

Under copyright law, an exclusive license is a “transfer of copyright ownership” (17 U.S.C. § 101). If upheld, it would have meant that craigslist owned every post that you made (assuming a court would find clicking “Continue” was equivalent to an “instrument of conveyance … in writing and signed by the owner” (17 U.S.C. § 204)). The change appeared to fit in with the lawsuit, which sued, in part, over alleged infringement of these newly-minted exclusive rights.

This new language was a marked difference from prior Terms of Use (2008/2011), which clearly stated “craigslist does not claim ownership of content that its users post.” While this clear language has not returned to the TOU, the same result comes from the non-exclusive license currently in the TOU.

craigslist demanding ownership of user posts would have potentially meant that users couldn’t republish their ads on multiple services without risking a claim of infringement. And while not every craigslist post is going to go viral and have real value outside the original context (like the “Jesus Tap-Dancing Christ” car ad), users still need the right to post and repost their material in a variety of venues. Moreover, removing the exclusive license provision retains craigslist’s compatibility with common licensing schemes, like the Creative Commons ShareAlike license or the GNU Free Documentation License. And craigslist’s change lessens the chance that other websites will start demanding ownership of the content you post there.

Disclosure: Craig Newmark, founder of craigslist, is a member of EFF’s Advisory Board, and craigslist has donated to EFF.

Tweets for 3taps : http://twitter.com/3taps

Craig Newmark said on Quora that the reason they didn’t like people building stuff on top of Craigslist was simply the extra bandwidth they consumed:

http://www.quora.com/Why-hasnt-anyone-built-any-products-on-…

But now that 3Taps has found an ingenious way to get at the data with zero extra bandwidth cost to Craigslist (by retrieving it from the Google cache rather than CL itself), it’s clear that what Craigslist really dislikes is competition.

While Craigslist is probably within their legal rights here, this case shows that for all their talk about their benevolent aims, Craigslist is no different from other companies.

Posted in Technology Related Articles | Comments Off on Good News: Craigslist drops exclusive license to your posts

TREB Competition Tribunal gets underway

Monday, September 10th, 2012

Tony Palermo
Other

After a lengthy wait, the Toronto Real Estate Board (TREB) is defending itself against a filing by the Competition Bureau claiming that TREB operates its MLS system using restrictive, anti-competitive practices. Given the importance of this case, there is no question both industry insiders and the general public will be following it closely.

On Aug. 24, TREB filed a last-minute constitutional challenge to the Competition Tribunal, stating that the federal tribunal has no jurisdiction over the real estate industry because it is provincially regulated. The Tribunal accepted the filing “for informational purposes only and said if members of the public wanted a copy, they should contact TREB’s legal counsel. TREB has not publically released the document.

This week the hearings began before the Competition Tribunal, a quasi-judicial adjudicative body that operates independently of all government departments (including Industry Canada, which is home to the Competition Bureau.) The Competition Tribunal’s mandate is to hear and rule on suspected violations to certain sections of Canada’s Competition Act – in this case, TREB operating its MLS system using restrictive, anti-competitive practices.

How it works

The TREB hearing is scheduled to last five weeks, though it may wrap up sooner. A tribunal hearing is similar in structure to a regular court proceeding. It typically begins with opening submissions in which the parties set out their respective positions and describe the evidence they intend to introduce. The applicant (in this case, as it is in most cases, the Commissioner of Competition) opens first and the respondent (in this case TREB) follows.

Once the opening submissions are complete, the applicant presents evidence. Witnesses will be called to answer questions and then may be cross-examined by the respondents. During the process, evidence and exhibits are introduced and filed.

Afterwards, the respondent presents its evidence.

CREA and Toronto-based real estate firm Realtysellers each have intervener status in the hearings. According to an anonymous Competition Tribunal spokesperson, it’s expected that CREA will call witnesses but that Realtysellers will not call evidence.

Among the witnesses expected to testify will be representatives from Toronto brokerages TheRedPin.com and Realosophy Realty. Both companies feature websites with unique and extensive property search capabilities.

Once both sides have had a chance to present their case, there is a final closing argument phase. This is where the parties argue and summarize their respective positions, relying on relevant case law and all of the evidence introduced during the hearing. The closing argument can’t contain any new information and can only use the evidence introduced at the Tribunal.

Once everything has been heard, the three-member panel will consider the facts and ultimately issue a decision. This can be a lengthy process. The time it takes the Tribunal’s panel to render a decision depends on several factors, including the complexity of the case. It’s expected that a decision in the TREB case will be issued in early 2013.

Members of the public can attend the TREB hearing, though at times the proceedings may go “in-camera” based on the confidential or sensitive nature of the testimony. During in-camera sessions, members of the public aren’t allowed to listen in.

Who hears the cases and issues orders?

Tribunal cases are generally heard before a three-member panel made up of both judges and lay members (who are selected from the Competition Tribunal’s pool of six judges and seven lay members.) Judicial members are appointed from the Federal Court of Canada by the Governor in Council, on the recommendation of the Minister of Justice. Lay members are appointed by the Governor in Council on the recommendation of the Minister of Industry, and provide expertise based on their individual backgrounds in economics, business, accounting, marketing and other related fields.

All of the members are selected to sit on a case by the Tribunal’s chairperson. The decision depends on their interest in the case and their availability and is only made after ensuring there are no conflicts of interest.

The TREB case is being heard before a three-member panel composed of Madam Justice Sandra J. Simpson (presiding), Mr. Justice André Scott and Mr. Henri Lanctôt, who is the lay member. A highly skilled panel, both judges bring over 35 years of legal experience each to the case. Lanctôt, a lawyer himself who was called to the Quebec Bar in 1968, brings experience in several areas including securities, corporate, commercial and resources law.

The Competition Tribunal documents can be found here.

Posted in Real Estate Related | Comments Off on TREB Competition Tribunal gets underway

Canada’s Anti-Spam Legislation

Thursday, September 6th, 2012

Other

General

Who needs to know about this law?

Anyone who makes use of commercial electronic messages, is involved with the alteration of transmission data, or produces or installs computer programs needs to be aware of this law.

Alteration of Transmission Data

What is an example of altering transmission data?

An example is when an individual causes an electronic message to be sent to a destination that is different from that which the sender intended.

What are the general requirements for altering transmission data?

Express consent will be necessary before transmission data in an electronic message can be altered. There are other requirements that will need to be met when requesting consent, such as clearly and simply describing why, and for what purpose, consent is being requested, as well as the identity of the requester.

These requirements will apply when the alteration of transmission data occurs in the course of a commercial activity.

Commercial Electronic Messages

What is a commercial electronic message?

A commercial electronic message is any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.

What are the general requirements concerning the sending of commercial electronic messages for which the CRTC is responsible?

Generally, the sender will need to obtain consent from the recipient before sending the message and will need to include information that identifies the sender and enables the recipient to withdraw consent.

When Canada’s anti-spam law comes into force, what law will govern consent with regard to commercial electronic messages: Canada’s anti-spam law or the Personal Information Protection and Electronic Documents Act?

Once in force, Canada’s anti-spam law will set out the rules regarding consent with respect to commercial electronic messages.

Enforcement Agencies Roles and Responsibilities

What are the activities that fall under the CRTC‘s mandate pursuant to Canada’s anti-spam law?

There are three broad activities that will engage the CRTC. They are:

sending of commercial electronic messages without consent;
alteration of transmission data in an electronic message without express consent; and
installation of computer programs without express consent.

The underlying principle is that these activities can only be carried out with prior consent and that such consent may be withdrawn.

What compliance tools will be available to the CRTC?

The CRTC will have a number of compliance tools; one such being administrative monetary penalties (AMPs). The maximum AMP is $1 million per violation for an individual and $10 million per violation for entities, such as corporations.

Where can I get more information on my responsibilities with respect to the Competition Act?

For more information on ensuring compliance with the false or misleading representations provisions of the Competition Act, please consult the Competition Bureau’s website, at www.competitionbureau.gc.ca.

What is the Competition Bureau’s role with respect to Canada’s anti-spam law?

The Competition Bureau will investigate and take action where appropriate against false or misleading representations and deceptive marketing practices in the electronic marketplace, including false or misleading sender or subject information and web links, as well as website content. The Competition Bureau, as an independent law enforcement agency, ensures that Canadian businesses and consumers prosper in a competitive and innovative marketplace.

What changes have been made to the Competition Act?

The new law amends the Competition Act in two key areas.

First, it modifies certain provisions in the Competition Act so that the Bureau can more effectively address false or misleading representations online and deceptive marketing practices, including false or misleading sender or subject information and web links, as well as website content.

Second, it includes technology-neutral language that catches emerging technologies. This will assist the Bureau in enforcing provisions in the Competition Act as technological threats evolve.

What is the Office of the Privacy Commissioner’s role with respect to Canada’s anti-spam law?

The Office of the Privacy Commissioner of Canada protects the personal information of Canadians. The new law will allow the Commissioner to enforce the legislation with respect to two types of conduct:

the collection of personal information through access to computer systems contrary to an act of parliament;
electronic address harvesting where bulk email lists are compiled through mechanisms; including the use of computer programs that automatically mine the Internet for addresses.

Installation of Computer Programs

What are the general requirements for the installation of computer programs?

Generally, computer programs may be installed only after express consent has been obtained. There are also requirements that will need to be met when requesting express consent, such as clearly and simply describing the function and purpose of the computer program, as well as information enabling consent to be withdrawn.

These requirements will apply when the computer program is to be installed in the course of a commercial activity.

Do these requirements have to be met every time a computer program is installed?

Not necessarily. For example, updates or upgrades will not trigger these requirements when express consent has already been obtained.

Does express consent need to be obtained in all cases?

Not necessarily. Express consent is considered to have been given in the case of computer programs such as cookies, HTML code and Java Scripts where it is reasonable to believe from their conduct that the person wants the program to run on their computer.

Personal Information

What is “address harvesting”?

This refers to the collection of email addresses through the use of things such as:

“Web crawlers,” which are computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses; and
“Dictionary attacks,” in which a computer program guesses live email addresses by methodically trying multiple name variations within a particular group of common email domains, such as Hotmail or Gmail.

Once collected, email addresses are often sold to spammers as destinations for unsolicited electronic messages.

How can I know if my email address has been harvested?

It may be very hard for you to determine if your address has been harvested. However, you can still help in the effort to fight back against this activity by reporting suspicious electronic messages to the Spam Reporting Centre when it opens.

What is meant by “collection of personal information through access to computer systems contrary to an act of parliament”?

Generally, this refers to the collection of people’s personal information from a computer through illicit means such as criminal hacking or spyware.

How can I know if my computer has been infected with malware such as spyware which can collect my personal information? And if it has been, what should I do about it?

Here are a few common signs that your computer may be infected:

It is functioning far more slowly than usual;
Your Internet homepage has been reset without you having done anything;
When examining your file system, you notice a program there which you have not installed yourself.

If you notice any of these signs, you should get in touch with an information technology expert for necessary cleaning or repairs.

Reporting Spam

What should I do with the spam I receive now?

At the present time, we recommend that you simply delete the spam messages you receive.

For information on how to protect yourself from spam and other electronic threats, visit How to Protect Yourself Online and While Mobile.

Does Canada’s anti-spam law deal only with spam?

No. It also deals with other electronic threats to commerce, such as the installation of computer programs and the alteration of transmission data, without express consent. These threats also include the installation of malware, such as computer viruses.

What does “spam and other electronic threats” mean?

Under Canada’s anti-spam legislation, there are various types of violations including the sending of unsolicited commercial electronic messages, the unauthorized alteration of transmission data, the installation of computer programs without consent, false and misleading electronic representations online (including websites), the unauthorized collection of electronic addresses and the collection of personal information by accessing a computer system in contravention of an Act of Parliament.

These violations include, but are not limited to, spam, malware, spyware, address harvesting and false and misleading representations involving the use of any means of telecommunications, Short Message Services (SMS), social networking, websites, URL’s and other locators, applications, blogs, Voice over Internet Protocol (VoIP), and any other current and future internet and wireless telecommunication threats prohibited by Canada’s anti-spam legislation.

Timing

When will the final regulations be posted?

Final regulations from the CRTC were posted on March 28, 2012 and can be found on the CRTC website.

The Governor in Council draft regulations were open for a 60 day consultation period that ended on September 7th, 2011. The Government of Canada is in the process of analyzing all submissions and developing options for consideration. Next steps will be determined in the near future.

The Governor in Council draft regulations can be found on the Canada Gazette website.

When does the law come into force?

Canada‘s new anti-spam law was passed in December 2010 and will enter into force following a Governor in Council order. A specific date for coming into force will be set in the coming months.

Regardless of the date set for coming into force, will there be a phase-in period for compliance to allow businesses and organizations time to implement the requirements within their systems in order to ensure they are compliant with the law? In other words, will the coming into force date and the compliance dates be different?

The coming into force date will be the date for compliance with the legislation. However, businesses subject to the Act should start reviewing their existing activities now to prepare for compliance and coming into force. Once the regulations are published in final form, there will be a period of time between that date and the coming into force of these provisions, which will enable businesses and organizations to have time to comply with the requirements set out in the regulations (such as what information needs to be included in a commercial electronic message).

There is also a 3-year transitional period that starts when the legislation enters into force during which consent to send commercial electronic messages is implied in the case of pre-existing business and non-business relationships. Similarly, consent is implied for the same period for the installation of updates and or upgrades to computer programs. Note, however, that this period will end if the recipient of the commercial electronic messages says that they don’t want to receive any more commercial messages or if the person on whose system the update or upgrade have been installed withdraw their consent to such installations (section 66 and 67).

Note that some parts of the law have already come into force, particularly some provisions involving the Personal Information Protection and Electronic Documents Act (PIPEDA). For more information, please see the Office of the Privacy Commissioner of Canada.

Posted in Real Estate Legal Articles | Comments Off on Canada’s Anti-Spam Legislation

Canada’s Anti-Spam Legislation

Thursday, September 6th, 2012

Other

General

Who needs to know about this law?

Anyone who makes use of commercial electronic messages, is involved with the alteration of transmission data, or produces or installs computer programs needs to be aware of this law.

Alteration of Transmission Data

What is an example of altering transmission data?

An example is when an individual causes an electronic message to be sent to a destination that is different from that which the sender intended.

What are the general requirements for altering transmission data?

These requirements will apply when the alteration of transmission data occurs in the course of a commercial activity.

Commercial Electronic Messages

What is a commercial electronic message?

A commercial electronic message is any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.

What are the general requirements concerning the sending of commercial electronic messages for which the CRTC is responsible?

When Canada’s anti-spam law comes into force, what law will govern consent with regard to commercial electronic messages: Canada’s anti-spam law or the Personal Information Protection and Electronic Documents Act?

Once in force, Canada’s anti-spam law will set out the rules regarding consent with respect to commercial electronic messages.

Enforcement Agencies Roles and Responsibilities

What are the activities that fall under the CRTC‘s mandate pursuant to Canada’s anti-spam law?

There are three broad activities that will engage the CRTC. They are:

sending of commercial electronic messages without consent;
alteration of transmission data in an electronic message without express consent; and
installation of computer programs without express consent.

The underlying principle is that these activities can only be carried out with prior consent and that such consent may be withdrawn.

What compliance tools will be available to the CRTC?

Where can I get more information on my responsibilities with respect to the Competition Act?

What is the Competition Bureau’s role with respect to Canada’s anti-spam law?

What changes have been made to the Competition Act?

The new law amends the Competition Act in two key areas.

Second, it includes technology-neutral language that catches emerging technologies. This will assist the Bureau in enforcing provisions in the Competition Act as technological threats evolve.

What is the Office of the Privacy Commissioner’s role with respect to Canada’s anti-spam law?

the collection of personal information through access to computer systems contrary to an act of parliament;
electronic address harvesting where bulk email lists are compiled through mechanisms; including the use of computer programs that automatically mine the Internet for addresses.

Installation of Computer Programs

What are the general requirements for the installation of computer programs?

These requirements will apply when the computer program is to be installed in the course of a commercial activity.

Do these requirements have to be met every time a computer program is installed?

Not necessarily. For example, updates or upgrades will not trigger these requirements when express consent has already been obtained.

Does express consent need to be obtained in all cases?

Personal Information

What is “address harvesting”?

This refers to the collection of email addresses through the use of things such as:

“Web crawlers,” which are computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses; and
“Dictionary attacks,” in which a computer program guesses live email addresses by methodically trying multiple name variations within a particular group of common email domains, such as Hotmail or Gmail.

Once collected, email addresses are often sold to spammers as destinations for unsolicited electronic messages.

How can I know if my email address has been harvested?

What is meant by “collection of personal information through access to computer systems contrary to an act of parliament”?

Generally, this refers to the collection of people’s personal information from a computer through illicit means such as criminal hacking or spyware.

How can I know if my computer has been infected with malware such as spyware which can collect my personal information? And if it has been, what should I do about it?

Here are a few common signs that your computer may be infected:

It is functioning far more slowly than usual;
Your Internet homepage has been reset without you having done anything;
When examining your file system, you notice a program there which you have not installed yourself.

If you notice any of these signs, you should get in touch with an information technology expert for necessary cleaning or repairs.

Reporting Spam

What should I do with the spam I receive now?

At the present time, we recommend that you simply delete the spam messages you receive.

For information on how to protect yourself from spam and other electronic threats, visit How to Protect Yourself Online and While Mobile.

Does Canada’s anti-spam law deal only with spam?

What does “spam and other electronic threats” mean?

Timing

When will the final regulations be posted?

Final regulations from the CRTC were posted on March 28, 2012 and can be found on the CRTC website.

The Governor in Council draft regulations can be found on the Canada Gazette website.

When does the law come into force?

Canada‘s new anti-spam law was passed in December 2010 and will enter into force following a Governor in Council order. A specific date for coming into force will be set in the coming months.

Regardless of the date set for coming into force, will there be a phase-in period for compliance to allow businesses and organizations time to implement the requirements within their systems in order to ensure they are compliant with the law? In other words, will the coming into force date and the compliance dates be different?

Posted in Other News Articles | Comments Off on Canada’s Anti-Spam Legislation

Canada’s Anti-Spam Legislation

Thursday, September 6th, 2012

Other

General

Who needs to know about this law?

Anyone who makes use of commercial electronic messages, is involved with the alteration of transmission data, or produces or installs computer programs needs to be aware of this law.

Alteration of Transmission Data

What is an example of altering transmission data?

An example is when an individual causes an electronic message to be sent to a destination that is different from that which the sender intended.

What are the general requirements for altering transmission data?

These requirements will apply when the alteration of transmission data occurs in the course of a commercial activity.

Commercial Electronic Messages

What is a commercial electronic message?

A commercial electronic message is any electronic message that encourages participation in a commercial activity, regardless of whether there is an expectation of profit.

What are the general requirements concerning the sending of commercial electronic messages for which the CRTC is responsible?

When Canada’s anti-spam law comes into force, what law will govern consent with regard to commercial electronic messages: Canada’s anti-spam law or the Personal Information Protection and Electronic Documents Act?

Once in force, Canada’s anti-spam law will set out the rules regarding consent with respect to commercial electronic messages.

Enforcement Agencies Roles and Responsibilities

What are the activities that fall under the CRTC‘s mandate pursuant to Canada’s anti-spam law?

There are three broad activities that will engage the CRTC. They are:

sending of commercial electronic messages without consent;
alteration of transmission data in an electronic message without express consent; and
installation of computer programs without express consent.

The underlying principle is that these activities can only be carried out with prior consent and that such consent may be withdrawn.

What compliance tools will be available to the CRTC?

Where can I get more information on my responsibilities with respect to the Competition Act?

What is the Competition Bureau’s role with respect to Canada’s anti-spam law?

What changes have been made to the Competition Act?

The new law amends the Competition Act in two key areas.

Second, it includes technology-neutral language that catches emerging technologies. This will assist the Bureau in enforcing provisions in the Competition Act as technological threats evolve.

What is the Office of the Privacy Commissioner’s role with respect to Canada’s anti-spam law?

the collection of personal information through access to computer systems contrary to an act of parliament;
electronic address harvesting where bulk email lists are compiled through mechanisms; including the use of computer programs that automatically mine the Internet for addresses.

Installation of Computer Programs

What are the general requirements for the installation of computer programs?

These requirements will apply when the computer program is to be installed in the course of a commercial activity.

Do these requirements have to be met every time a computer program is installed?

Not necessarily. For example, updates or upgrades will not trigger these requirements when express consent has already been obtained.

Does express consent need to be obtained in all cases?

Personal Information

What is “address harvesting”?

This refers to the collection of email addresses through the use of things such as:

“Web crawlers,” which are computer programs that scan websites, usenet groups and social networking sites, trolling for posted electronic addresses; and
“Dictionary attacks,” in which a computer program guesses live email addresses by methodically trying multiple name variations within a particular group of common email domains, such as Hotmail or Gmail.

Once collected, email addresses are often sold to spammers as destinations for unsolicited electronic messages.

How can I know if my email address has been harvested?

What is meant by “collection of personal information through access to computer systems contrary to an act of parliament”?

Generally, this refers to the collection of people’s personal information from a computer through illicit means such as criminal hacking or spyware.

How can I know if my computer has been infected with malware such as spyware which can collect my personal information? And if it has been, what should I do about it?

Here are a few common signs that your computer may be infected:

It is functioning far more slowly than usual;
Your Internet homepage has been reset without you having done anything;
When examining your file system, you notice a program there which you have not installed yourself.

If you notice any of these signs, you should get in touch with an information technology expert for necessary cleaning or repairs.

Reporting Spam

What should I do with the spam I receive now?

At the present time, we recommend that you simply delete the spam messages you receive.

For information on how to protect yourself from spam and other electronic threats, visit How to Protect Yourself Online and While Mobile.

Does Canada’s anti-spam law deal only with spam?

What does “spam and other electronic threats” mean?

Timing

When will the final regulations be posted?

Final regulations from the CRTC were posted on March 28, 2012 and can be found on the CRTC website.

The Governor in Council draft regulations can be found on the Canada Gazette website.

When does the law come into force?

Canada‘s new anti-spam law was passed in December 2010 and will enter into force following a Governor in Council order. A specific date for coming into force will be set in the coming months.

Regardless of the date set for coming into force, will there be a phase-in period for compliance to allow businesses and organizations time to implement the requirements within their systems in order to ensure they are compliant with the law? In other words, will the coming into force date and the compliance dates be different?

Posted in Technology Related Articles | Comments Off on Canada’s Anti-Spam Legislation