July 19, 2005 4:00 AM PDT

In Canada: Cache a page, go to jail?

A correction was made to this story. Read below for details.
A bill before Canada's Parliament could make it illegal for search engines to cache Web pages, critics say, opening the door to unwarranted lawsuits and potentially hindering public access to information.

The legislation in question, Bill C-60, is designed to amend Canada's Copyright Act by implementing parts of the 1996 World Intellectual Property Organization treaty, the treaty that led to the Digital Millennium Copyright Act in the U.S.

"The way it reads, arguably what they're saying is that the very act of making a reproduction by way of caching is illegal."
--Howard Knopf
Copyright attorney

Set for debate and an initial vote in the House of Commons after Parliament's summer break, C-60 addresses things such as file-sharing, anticopying devices and the liability of Internet service providers and would tighten the Copyright Act in ways favorable to record labels and movie studios.

But according to Howard Knopf, a copyright attorney at the Ottawa firm of Macera & Jarzyna, a brief passage in the bill could mean trouble for search engines and other companies that archive or cache Web content.

"The way it reads, arguably what they're saying is that the very act of making a reproduction by way of caching is illegal," Knopf said.

Michael Geist, a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-Commerce Law, agreed.

"Anyone with content on the Web could sue," and anyone caching content on the Internet could be sued, said Geist, who wrote about perils with C-60 when it was introduced. "Somebody with an ax to grind, or business competitors, could start using the system to try to get content removed." The bill provides no deterrent to making false copyright-infringement claims, he said.

Such copyright issues remain a hot topic in the United States, where search engines have found themselves subjected to a litany of infringement complaints, particularly as they expand the types of content they make searchable on the Web.

Google has pulled links to Web sites that the controversial and litigious Church of Scientology claimed infringed copyright. The search giant was also forced recently to remove copyright video content users had uploaded and has also come under fire for its plan to digitize library collections. Amazon.com was recently sued by an adult magazine over photos in its images database, and Google was sued by the same company.

The concern over C-60 involves a section of the bill that deals with remedies open to copyright holders. That section contains the following language: "...the owner of copyright in a work or other subject-matter is not entitled to any remedy other than an injunction against a provider of information location tools who infringes that copyright by making or caching a reproduction of the work or other subject matter."

A government official from one of the departments that wrote C-60 said the section is meant to provide more protection for search engines. Under current Canadian law, copyright holders can sue companies they believe are reproducing their material without authorization. Though common practice is to send the alleged copyright infringer a cease-and-desist notice, such a warning is not now required under law, said Albert Cloutier, acting director of the Intellectual Property Policy Directorate at Industry Canada.

Under Bill C-60, copyright holders could sue for monetary damages only after giving notice. Before such notification, they'd be limited to seeking an injunction. The bill does not change the circumstances or terms for establishing copyright infringement, Cloutier said.

"The public as a whole loses if we lose the ability to see what's being made available online."
--Wendy Seltzer
Chilling Effects Clearinghouse

"We're saying that in cases where there is copyright infringement there is a safe harbor," Cloutier said.

Knopf said he believed the intent of the search engine provisions was to provide a partial safe harbor, but he said that due to "drafting issues"--in other words, careless language--he's concerned the effect may be the opposite, muddling one of the Web's prime paradigms.

"If you put stuff freely on the Internet and don't take available steps to control archiving...you have to expect that people are going to browse, print or save it and that Google is going to cache it and archive.org is going to archive it," Knopf said.

Existing law is unclear as to whether people who post information on the Internet have given implied permission to search engines for caching purposes, Cloutier said.

So far, there have been no cases in Canada of search engines being sued for copyright infringement, Cloutier and the lawyers said. However, "theoretically (they) could be liable for infringement. We don't know how the Canadian courts will treat the activity under current law," Geist said.

Regardless, even a provision like that in Bill C-60 wouldn't necessarily put search engines out of business in Canada; they could tailor their services to meet the law, as they do with legislation in other countries. For instance, Google has excluded illegal pro-Nazi content in Germany.

Besides, C-60 remains a bill, and the wording that worries Knopf and Geist could be changed in committee, Cloutier said. After the first vote in the House of Commons, the bill goes to committee for debate and revision before being sent back to the House for a final vote and, if it passes, to the Senate.

Both attorneys are hopeful corrections or clarification can be made before the bill becomes law. Otherwise, Knopf said, a can of worms could open--not just for major search engines such as Google and Yahoo but also for smaller sites such as the Internet Archive's Wayback Machine, a searchable repository of old versions of Web sites created as a nonprofit public service.

"It could be a problem if it goes into law in a vague way and causes search engines to think there is a risk (and)...to cut back on their activities," said Wendy Seltzer, founder of the Chilling Effects Clearinghouse, a nonprofit legal-information project involving the Electronic Frontier Foundation, Harvard University and others. "The public as a whole loses if we lose the ability to see what's being made available online."

 
Correction: This story misstated the action taken by an adult magazine toward Google. The magazine sued the search giant.

16 comments

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But I thought Canada was cool
How depressing that industries can buy politicians even in Canada. I was hoping to retire there.
Posted by (14 comments )
Reply Link Flag
What's all this aboot, eh?
Where there are politicians, there will be politics. Politics caters to the lowest common denominator of society, and Canada's certainly no exception.

You don't want to retire to a place that legitimately recognizes the "Al Qaida voters" as an essential voting block, anyway.
Posted by Christopher Hall (1205 comments )
Link Flag
Canada's Proposed Anti-Caching Bill comment
In an odd twist of irony, I note that the Canadian Parliament's designation for the proposed bill is number C-60. That used to be the description of an audiocassette, a media type that one uses to RECORD and COPY material. Hmmm..
Posted by AbreyMyers (4 comments )
Reply Link Flag
The NDP will not support this bill
This bill has a low likelihood of passing. See, right now Canada's parliament is in minority mode, which means the governing Liberal Party occupies fewer than half the seats in the House and therefore is unable to pass bills without help from other parties. The remainder of the House is divided between the opposition Conservative Party, the Bloc Québécois, the social-populist New Democratic Party, and a few independents. The Liberals combined with the NDP and a couple independents is enough to pass a bill, however, I sincerely doubt the NDP will support the bill. The Conservatives and Bloc would see this as an opportunity to defeat the government, something they've been trying to accomplish at all costs since the thing started last June, and would probably vote against it for that reason alone.

In the meantime, I figure there are still a number of MPs who still listen to their constituents. Canadians should write their MPs and encourage them to oppose C-60.
Posted by Azio (35 comments )
Reply Link Flag
Unfortunately, the bill WILL pass
The Liberal party only needs the support of one other party. The NDP will not be this party. Likely, the separatists will fail to support this law as well. However, this is an extremely right wing law, which means the conservatives will likely support it. If so, no one could topple it unless members from within their own parties oppose it, something which rarely happens in Canada (usually because members who do that are fired and forced to be independant). So, the bill will pass.
Posted by (41 comments )
Link Flag
Also, the government cannot be defeated...
The government cannot possibly be defeated on this bill. Sure, the bill may fail to pass law (which I doubt), but even if that happens, the government would still survive. The government can only be toppled on confidence motions or budget votes, and thus, this doesn't apply to that.
Posted by (41 comments )
Link Flag
This just won't work
This law just wouldn't work. They would have to go after every major search engine - Google, Yahoo, Lycos, MSN Search, and you know that they wouldn't stand back and allow this law to stand, because it would ruin their business and they have enough money and political power that they could make it VERY painful for any legislator that votes for this bill.
Posted by Leria (585 comments )
Reply Link Flag
Shutdown Google/Yahoo for anybody in Canada
After the first person sues a search engine for copyright infringement every major search engine should stop serving content to anybody with a canadian IP address. See how long it takes for the law to get amended...
Posted by 202578300049013666264380294439 (137 comments )
Reply Link Flag
That sounds like a strike! *lol*
I agree!
Don't bit the hand that feeds you!
Posted by (11 comments )
Link Flag
government intervention is not the way.
The internet is a PUBLIC place. If you don't want to be seen on it, GET OFF! Its that simple. Or the other REALLY simple way to not get cached in google or other major search engines is to use the <robot.txt> file. To put it in an EASY to understand way {as in} All the people cry because its raining outside and they are getting all wet. Yet they seem to forget about a very cheap and practical invention called the umbrella.

I just don't understand what is so difficult about understanding internet technology, without having to sue someone or get government intervention.
Posted by (11 comments )
Reply Link Flag
Sorry to tell you...
..but I think politicians and most of the webmasters REALLY DON'T KNOW THAT. Remember few days ago one adult site is suing Google because Google is caching its adult contents? :)
Posted by 201293546946733175101343322673 (722 comments )
Link Flag
Forget the Search Engines
With one simple stroke, Canada is going to expose every computer user in the country to copyright infringement. The last time I looked all browsers first copy a web page to cache before displaying it. Go Canada
Posted by (1 comment )
Reply Link Flag
Sing "Blame Canada" After Me !
Enough said :)
Posted by 201293546946733175101343322673 (722 comments )
Link Flag
This reminds me
This reminds me of a story where the state of Indiana wanted to pass a law making the exact value of PI 22/7 to simplify calculations and reduce manufacturing costs.

What happens when the government passes a law it does not understand and is complete non-sense?


Bill
Posted by docbill (3 comments )
Link Flag
.ca domain name
I just bought a .ca domain name. It looks like I'll just have to sue everyone that visits it. Why not after all? More effective than advertizing and it's a big waste of government tax dollars.
Posted by (41 comments )
Reply Link Flag
No more webbrowsing
Forget about disk caches. Even if you somehow disable them in your browser, by writting a custom browser MEMORY caching is always neccessary. HTML and XML pages aren't designed to be read streamed. At some level, a copy is alway required. So in one stroke, EVERY webdevice will be illegal.
Posted by docbill (3 comments )
Reply Link Flag
 

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