Today, I saw an avalanche of my Facebook friends posting the following statement in their timeline:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, postings, writings, comments, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!

(Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All FB members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

As an intellectual property lawyer and someone who is known for saying that if you require complete privacy, you shouldn’t post anything on the internet, I just couldn’t pass up this opportunity to comment why the quoted statement makes very little sense.

First of all, users’ relationships with Facebook are governed by a contract, namely their Statement of Rights and Responsibilities, which clearly state:

By using or accessing Facebook, you agree to this Statement, as updated from time to time…

Essentially, publicly traded or not, our relationship with Facebook is the same as in the case of any other continuing framework agreement – it’s contractual, like any other.

Think, for example, of a library. When we get a library card, we agree to stick to certain rules that govern our use of the books and the premises. Until we actually go to the library and borrow a book, we care very little about our mutual rights and responsibilities (unless there’s an annual fee payable for the privilege of continuing to hold the library card). Once we walk out of the library holding a book, however, we have suddenly assumed many responsibilities: to take good care of the book, to return it on time, to pay a fine if we don’t.

Similarly, just because we signed up to Facebook, very little has changed in our lives until we actually started posting stuff – comments, status updates, photographs, etc.

Like any other contract, it can only be changed unilaterally if both parties agreed to such a possibility. Section 14 of the Statement of Rights and Responsibilities states that Facebook can change the rules at any time, by giving users notice and, in some cases, an opportunity to comment on the changes – and users agree to it by continuing to use Facebook:

Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.

Not surprisingly, no such possibility exists for unilateral changes initiated by users.

What this means is that if a user does not like the rules, the user has two options:

1. negotiate a direct deal with Facebook pursuant to which the user (or everyone else as well) will be accorded other terms;

2. stop using Facebook or even close down the account.

That’s pretty much it.

Posting a statement that is inconsistent with Facebook’s Statement of Rights and Obligations is akin to borrowing a book from a library and then sending a library a napkin with a note on it stating that you will return the book in a couple of years, maybe. Wouldn’t be very helpful, would it?

Second, you own copyright in your works automatically, you don’t need to declare anything to place your works under protection of copyright laws, that is as long as your works CAN be protected by copyright at all. In other words, if you created something that is an original literary, dramatic, musical or artistic work, that work is automatically protected in Canada and – through a number of international treaties – virtually worldwide. On the other hand, if what you are trying to protect is not a work capable of copyright protection, then no declaration will render the work copyrightable. So stating that you “declare that your copyright is attached to all” of that stuff listed in the declaration is absolutely meaningless, because the declaration does not give or take away any rights to and from you.

Third, Facebook cannot legally exist unless users allow it to use what users post. It’s not that users post their comments in a vacuum. All of these comments go to Facebook’s servers. Facebook stores these comments and displays them according to the users’ privacy settings. Unless Facebook secures permission to store user content on its servers, Facebook would be violating its users’ intellectual property. The nature of any license is precisely that – to make what would have otherwise been an infringement allowable to the licensee.

Section 2(1) of Facebook Statement of Rights and Responsibilities states:

For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

With one small exception, this is perfectly reasonable. Facebook cannot expose itself to a hundreds of thousands of copyright infringement lawsuits per minute: according to these statistics, 684,478 pieces of content are shared on Facebook every minute.

The small exception is that the license that you grant to Facebook says that it is “sub-licensable” but it does not say that it can only be sublicensed for non-commercial purposes. Technically, this could mean that Facebook could publish a book of best photographs and comments. There are a few safeguards, however. On the one hand, the license automatically terminates when a user deletes the post (unless someone else has reposted and not deleted the post). On the other hand, it’s hard to imagine that Facebook is run by suicidal people. How many people are going to continue posting about their private lives if Facebook does anything even closely resembling publishing such book?

Fourth, when you share your information with anybody but yourself, there is always a risk that someone else will make that public. We all have heard the horror stories about someone accidentally hitting REPLY ALL instead of just REPLY. We’ve all heard stories about someone forwarding too much of a confidential correspondence to the wrong person. Even if you tell Facebook to disallow others to “share” your content, there is always such thing as “copy-paste”.

The answer is very simple, if you want your stuff to remain private, don’t post it on the web, ever – not through Facebook, not via Twitter, not on your blog, not on your website, not in YouTube comments, not through a game server of a new cool app – EVER!

There is always a balancing act between privacy and convenience. Think about your desktop computer. You may use a single password on all of your platforms, save all the cookies and have no passwords wherever possible. This will save a lot of time but your system will be a hacker’s dream.

On the other hand, you can install firewalls, unique 30-character passwords for every website, social media and email account, disconnect from the internet unless you are actively using it, never store any personal information on computers with internet access, etc. This will make things much safer, but much less fun to use.

Facebook is no exception. You can’t expect to be selectively social. You can’t push the toothpaste back in the tube. If you want to be on Facebook, use your brains and don’t post stuff that you wouldn’t want someone 3 years down the road to see. Don’t expect someone else, including Facebook, to fix things for you. Take responsibility for your actions.

Don’t get me wrong. I’m a sucker for conspiracy theories about Google, Facebook, communist implant in the White House and the global caliphate. But I also love the gadgets, the apps, and the web.

Yet, I know that everything I post will leave a trace, however weak that trace may be. So I approach the web accordingly, knowing full well that if I want a guarantee that something does not become public, I just keep it to myself. And if I post something, I am prepared to face the consequences.

Like anything about law, it’s all about risk management.

I will be delivering an information-packed presentation on intellectual property at the VBN (Vancouver Business Network) meetup on December 4, 2012.

You will walk away with at least:

– 5 big ideas about intellectual property and the law in general that will answer 80% of your questions about IP;

– 5 reasons to register your trademarks;

– 7 one-word shortcuts that will allow you to instantly identify different types of intellectual property.

You will never be intimidated by IP and IP lawyers again!

Please RSVP for the event at MEETUP.COM.

This is an event you and your business can’t afford to miss.

Until recent amendments, educational institutions were already permitted to make single copies of news programs and news commentary programs and to perform such copies before the students. This exception used to be subject to an important limitation: it was only good for one year after the copy was made. After the expiration of the one year period, the educational institutions had a choice of either destroying the copy or paying royalties for its continued use.

Not anymore.

The amended Copyright Act removes these limitations and allows educational institutions to make and use such copies at any time without paying royalties.

BOTTOM LINE: This amendment will streamline the way educational institutions use recordings of news broadcasts. They no longer have to keep track of whether the recording was made more than a year ago.

By itself, this could be regarded as a positive step.

However, taken together with the rest of the amendments vastly expanding the legalized unauthorized use of works protected by copyright, Canada is finding itself more and more testing the boundaries of its obligation under the Berne Convention, which requires that any exceptions to the exclusive right of copyright owners to reproduce their works be subject to three limitations:

1. the exception may only be permitted in certain special cases;

2. unauthorized use must not conflict with a normal exploitation of the work; and

3. unauthorized use must not unreasonably prejudice the legitimate interests of the copyright owner.

Instead of carefully carving out situations where an exception would make it easier to use protected works without hurting the interests of copyright owners, Canada is taking the road of thwarting the interests of copyright owners under the guise of serving the interests of the public and in the name of mythical “user rights”.

The changes to this particular section will likely have a miniscule effect on the market for news programs, but the general trend is threatening. How long will it be until we face a situation masterfully described in “Atlas Shrugged” by Ayn Rand:

”All patents and copyrights, pertaining to any devices, inventions, formulas, processes and works of any nature whatsoever, shall be turned over to the nation as a patriotic emergency gift by means of Gift Certificates to be signed voluntarily by the owners of all such patents and copyrights. The Unification Board shall then license the use of such patents and copyrights to all applicants, equally and without discrimination, for the purpose of eliminating monopolistic practices, discarding obsolete products and making the best available to the whole nation.”

The new Canadian Copyright Act has a clarified and expanded section 29.5 relating to performances made or authorized by educational institutions.

The former version of the Copyright Act contained a closed list of three instances when educational institutions could perform protected works without first obtaining permission from the copyright owner. They could (1) arrange live performances of protected works by their students; (2) play back sound recordings; and (3) organize public showings of broadcasts.

The new version does two things.

On the one hand, with respect to the playback of sound recordings, it limits the exception to legitimate sound recordings only. The added wording in the Act is “as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.”

On the other hand, the new version adds another instance which will now be excused under this exception, namely it allows educational institutions to also demonstrate movies, as long as they use a legitimate copy to do it.

Copyright is a bundle of rights, and just because you buy a legitimate copy of a sound recording or a movie, does not give you the right to invite the public and conduct public demonstrations or listening parties. This is a separate right that has just been taken away from the copyright owners in favour of educational institutions.

BOTTOM LINE: One arbitrary construction has just been replaced by another arbitrary construction. The former version of the Act allowed some unauthorized acts which did not cover cinematographic works, while the new version further extends to such unauthorized use as well. Just as there was no moral or legal reasons to exclude cinematographic works from the application of the exception, there are no moral or legal reasons to include them now.

In my opinion, the real problem is not that educational institutions are going to impoverish copyright owners by not paying royalties for the use of their works, performances, sound recordings and broadcasts. The real problem is that students who attend these educational institutions are receiving the message that it’s ok to use copyrighted works without asking permission and without paying royalties. They are given a life lesson that copyright owners are a hindrance that a bunch of politicians and activist law professors gloriously help them overcome. These students will grow to expect to be entitled to use other people’s intellectual property whenever they feel like it – simply because it benefits them and the “public”.

This, I maintain, is the true reason why activist professors are so adamant about the education exceptions. They know that one day, some of the students will be the new politicians who will gladly pick up where the current generation has left off the Copyright Act and create more new exceptions – to further spread this sense of entitlement.

It’s a vicious circle, if you ask me.

I have always had an interest in how domain names coexist with the trademark law.

I was the first lawyer who represented a Russian plaintiff in a UDRP case (KOMMERSANT.COM, D2002-0531).

With a colleague of mine, I was also involved in a protracted litigation over a domain name, which had cost the client over $120,000.00 in legal fees – because the client did not properly renew their domain name registration.

Today, I have the pleasure to share with you an interview I did with Cybele Negris, the President of the Canadian domain names registrar, Webnames.Ca.

Without further ado, here we go.

Q. You are the President and the co-founder of Webnames.Ca. How is Webnames.Ca different from other registrars? Other than being patriotic, why would Canadians choose Webnames.Ca to register their domain names?

A. We were the original founders of .CA in Canada so we have a long legacy in this industry. John Demco my business partner founded .CA in 1987 so we are actually celebrating 25 years of .CA this year! He ran the .CA registry for 13 years charging no fees whatsoever to preserve a Canadian online identity for all of us. After we transferred the technology and registry to the Canadian Internet Registration Authority, we became one of the accredited registrars and grew to 30 people in a matter of four months. We’ve been in running Webnames.ca for 12 years now with an ever expanding range of online services. We offer a full range of domain extensions, premium business email, web hosting with servers in multiple locations in Canada, website design, SSL certificates and more.

  We are an industry leader in Canada and clients from some of the world’s biggest brands and fortune 500 companies have chosen us. We have a reputation for exceptional service in an industry that is often pushing customers towards self-help with no service in order to get cheap pricing. We offer great value and highly competitive volume pricing coupled with high-touch service. Our average telephone response times are below one minute and we don’t outsource Canadian jobs to other countries.

  Our industry is also full of companies that use unethical practices like Domain Slamming and other practices to obtain business. Webnames.ca is committed to acting with integrity. Our Better Business Bureau rating has consistently been A+ in all the years we’ve been in business.

Q. How and why did you decide to get involved with Webnames?

A. When I met my business partner John Demco, I was impressed with what he had achieved and his vision for securing an online identity for all Canadians. The fact he did this for free as a public service for 13 years blew me away. As our team worked to transition the .CA registry to the Canadian Internet Registration Authority, we (John and I along with our other partners Stephen Smith and Matthew Lane) saw a huge opportunity for the expansion of .CA across Canada as the rules were about to be liberalized. We wanted to continue to build on the legacy that John had started. Twelve years later, I can honestly say that I continue to be passionate about what we do.

Q. Are people registering more or less domain names today, compared to 5 years ago? Compared to 10 years ago?

A. There were about 153 million domain names world-wide by the end of 2007 and 50 million by the end of 2002. By the end of Q1 2012 there were more than 233 million domain name registrations representing an increase of 23 million domains or 11 percent since Q1 of 2011. (source Verisign Domain Industry Brief).

  Today, most businesses even if they are a bricks and mortar store want some form of online presence. Individuals also register domain names for personal branding or to have a personal email that isn’t their ISP’s email address. (see my article about “Avoiding the Ugly Email”). It is not at all surprise that these numbers continue to grow so quickly.

Q. Compared to 5 and 10 years ago, whatÕs the average number of domain names a person typically owns?

A. I don’t have these numbers but anecdotally we have business with several thousand domains and those with one. Larger businesses tend to register more domains and protect all of the brand names, trademarks, campaigns and even all the variations of all of these including plural, singular, misspellings across all the domain name extensions.

Q. Several years ago, it was very popular for trademark owners to register domain names with various misspellings of the trademark to prevent typosquatting. Is it still the case?

A. Yes, this is still the case. For the cost of a domain name, it is much cheaper to protect the name than have someone else register the domain and divert traffic away. Dispute Resolution processes are time consuming and costly so most companies and tech-savvy individuals proactively register their domains across the different domain extensions and variations to avoid the pain of losing their domain to someone else.

Q. How often have domain names registered through Webnames.Ca been involved in UDRP and CDRP proceedings?

A. Very few actually. I’d say on average the numbers are in the single digits each year.

Q. Do you have the statistics as to the results of these proceedings (% of transfers for both UDRP and CDRP)?

A. On the UDRP side for gTLD’s:

  http://archive.icann.org/cgi-bin/udrp/udrp.cgi has an incomplete list of the archived proceedings between 1999 and 2007 with 18,754 in total.

  http://archive.icann.org/en/udrp/proceedings-stat.htm has some past statistics.

  More recent proceedings are tracked by each of the approved Dispute Resolution Service Providers.

  On the CDRP side for .CA: CIRA does not publish any statistics but the numbers are so small that those who are interested can scan through each ruling. The rulings and the list of each dispute by year are listed at http://www.cira.ca/legal/cdrp/dispute-resolution-decisions/.

Q. ICANN has introduced the new gTLDs. What is it, why is it being done and what is your opinion of this development?

A. The Internet Corporation for Assigned Names and Numbers, the governing organization for generic Top-Level-Domains (gTLDs) like .com, .net, .org, .biz, etc, has decided to expand the number of domain name extensions in the world. Currently there are less than two dozen gTLD’s yet ICANN has received over 1900 applications for new TLD’s.

  This development will change the landscape of the internet as we know it. There are three groups of gTLDs which will be released. 1. Generic domains like .shop, .web, .site, .music, .eco, .food 2. Geographical domains like .berlin, .nyc, .paris or 3. Brand or company specific names like .IBM, .Google, .Nike. The brand specific domains will likely be retained by the companies for internal use only rather than for public registration.

  Webnames.ca has been preparing for this development for many years and will be launching a pre-order system shortly.

Q. Will this result in dramatically increased costs for trademark owners as they will feel obliged to register more and more domain names in the new gTLDs or will the novelty be largely ignored by established companies?

A. Intellectual property professionals are bracing themselves for a lot of work in the future. In my opinion, large companies will continue to defend their trademarks and brands and there may be a rush for more trademark applications. It will of course get a lot more costly to manage brands online.

  Smaller companies will likely not be able to afford buying up every extension to protect their brand or trademarks and there will probably be more abuse from cybersquatters and more dispute resolution filings happening in the future.

  In the end, the market will decide which domain extensions are popular and which are not. Some of the domain registries may fail if they can’t compete for market share because there will be so much choice.

Q. Webnames offers an IP Vulnerability Quiz, which looks like a unique feature. It is commendable that you encourage brand owners to pay attention to their IP. Are there any ways in which you go beyond what other registrars do to support IP owners?

A. We do regular comprehensive brand and IP audits for certain corporate and managed clients. Because some of these clients often register large numbers of domains at a time, we offer a variety of payment options including invoicing, payment by cheque, wire transfer, prepayment and more. Our system is structured to support large domain portfolios with bulk tools allowing for fast and easy bulk updates, including domain registrations, renewals, DNS modifications and more. Our Parent-Child Account Management is also very popular as this powerful feature empowers large companies to manage domain names for multiple departments or clients from one master account. Domain hijacking is also a huge risk and our exclusive “Account Lock” security feature gives domain portfolios an additional layer of protection by restricting who can access the account by IP address range. Our experienced account managers help companies determine domain portfolio risks and opportunities and develop a domain strategy. We can also assist with domain brokerage and escrow services as needed.

  Thank you, Cybele.