In the aftermath of a horrible murder by someone who is now routinely referred to as “the Craigslist killer,” the online classified site has been coming under increasing pressure from both the government — which has been waging a prostitution-related crusade for some time now — and others who see the service as somehow complicit in these kinds of crimes. Venture capitalist and blogger Jeff Nolan, for example, says in a recent post that Craigslist “has a problem” and should find some way to deal with it, and suggests that both founder Craig Newmark and CEO Jim Buckmaster don’t seem to care much, or want to do anything about it.

“Instead of waiting for a community solution to a problem that will only get worse, Newmark and Buckmaster should be taking a leadership position and driving effective change to combat crime taking place on Craigslist.”

Jeff seems like a smart guy, but I couldn’t disagree more with his post. As far as I can tell, Craigslist has been doing everything it can to remove posts that are linked to criminal behaviour, whether prostitution or anything else, and they appear to have bent over backwards to co-operate with the attorneys-general from a number of states when it comes to imposing fines on wrong-doers and other strategies for limiting that kind of behaviour. What more could they possibly do — turn over their server log files to the authorities? Let Craigslist become an arm of the government?

As for the ABC News report, in which Craig and Jim are interviewed by Nightline hack Martin Bashir about the murder and the availability of prostitution ads on the service, Jeff says that CEO Jim Buckmaster comes across as “cold and unsympathetic.” I didn’t see it that way at all. While he’s not the most emotionally demonstrative man, I imagine I would react in much the same business-like way if I was asked for the 500th time why Craigslist allows such content on its service (the answer: it doesn’t, and tries hard to remove it). Bashir does his best to bait Newmark as well, using salacious ads to try and get him to admit he is aiding criminal behaviour.

As I watched the report, I tried to imagine Bashir interviewing Alexander Graham Bell and/or or an AT&T CEO about all the crimes that occur as a result of their invention — the so-called “tele-o-phone.” The reality is that Craigslist does a great job of connecting people who have things to sell with those who wish to buy, and in some cases those connections are going to go awry and a crime will be committed. Not only does Craigslist seem to be doing everything humanly possible to mitigate that (while protecting its community) but to blame the service for those crimes seems absurd. Not that long ago, a bank robber used Craigslist to hire decoys so he could evade capture; are Craig and Jim to blame for that as well?

I would take this one with a large grain — perhaps even a boulder — of salt, but according to a report in The Register, wireless-handset maker Motorola is planning to get buyers of its new, ultra-expensive Aura handset to sign something saying they won’t sell the device on eBay. The report (from the usual unnamed source) says that buyers would be required to sell the handsets back to Motorola if they didn’t want them any more. This has drawn scoffs from a number of commenters at Gizmodo and elsewhere, and rightly so, since such a policy would almost certainly be a breach of the so-called “first-sale doctrine” (in the United States, at least).

In a nutshell, the first-sale doctrine — which was originally created to cover patented items, but has since been extended to cover copyrighted material as well, such as records and CDs — prevents a patent-holder or manufacturer from extending their control over an object or piece of content beyond the first sale of that object or content. In other words, “the first unrestricted sale of a patented item exhausts the patentee’s control over that particular item.” This is to allow buyers of CDs and other products to sell them through second-hand stores, or to loan them to friends.

A number of companies — including software maker Autodesk — have tried in the past to get around the first-sale doctrine by describing the purchase of their products as a “license” rather than a sale, with contract language or end-user licensing agreements that restrict the buyer from doing whatever they want with it, but the courts have frowned on that.

BoingBoing has a link to a blog post by a New Zealander who sat in on a meeting with New Zealand officials, a meeting ostensibly about getting their input on the country’s proposed copyright legislation, and in particular a so-called “three strikes” rule, which would force Internet service providers to cut off users after warning them twice about copyright infringing behaviour. But as it turns out, the minister wasn’t there to hear any input about why such a rule is either a) wrong, b) stupid or c) wrong — she was there to chew out critics for even suggesting any such thing, and to tell them the law is going through regardless.

She began by strongly expressing her anger that we had complained to her at this stage in the proceedings. None of us, she said, had been to see her before this on this topic. When we protested that we had worked with the Select Committee, which had removed this provision – and balanced it with one which made licence holders liable for false accusations – she said that this was completely inappropriate of the Select Committee, because Cabinet had already decided this was going ahead.

When the group of which Colin Jackson was a part tried to protest that it wasn’t easy to tell for sure whether people were engaging in copyright infringement, the minister said it worked for child pornography; when her critics pointed out that child pornography was a federal crime and copyright infringement was a civil matter, she said that was irrelevant; when they said that removing people’s Internet access was all out of proportion with the alleged offense, she said that New Zealand’s cultural industries were being decimated and something had to be done.

As bad as Canada’s Bill C-61 is — and as Michael Geist continues to point out, it is pretty bad — it’s not nearly as bad as that. Yet.

Shane Richmond at the Telegraph has news of an interesting ruling from a British High Court judge, in a case that involved allegedly defamatory comments posted to an online discussion group about investing. In his decision, Mr. Justice Eady said that even though some of the comments on the investment forum amounted to “vulgar abuse,” they were much more like slander — in other words, much more like nasty remarks that are made to someone in person — than they were like libel (which usually involves writing or publication). As he put it:

“[Such comments] are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out. Those who participate know this and expect a certain amount of repartee or ‘give and take’.”

The judge went on to say that comments in such forums are not the same as comments that appear in newspaper articles, since they are more ephemeral and more like conversation, and therefore shouldn’t be the subject of a defamation action.

“Communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions,” said the ruling. “People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”

There’s some more info about the case here, and here.

(Note: This is cross-posted from my Globe and Mail blog)

Are you sure that all of the songs on your iPod were legally acquired? What about the music or movies or other digital content on your laptop? You could be subjected to some nasty questioning next time you cross the border, if a new international trade body has its way — and your ISP might decide to rat you out to the government as well.

According to a leaked document (available at Wikileaks and also at IP Justice), Canada and a number of other countries are planning to create a NAFTA-style body that would police copyright, and would be empowered to seize and/or destroy property without a court order. This agency — whose creation wouldn’t have to be approved by the legislature, according to some reports, because it deals with international trade matters — would also have the power to force Internet service providers to divulge information about their customers without requiring a warrant.

Past attempts by the Canadian record industry to compel ISPs to produce such information failed when the courts ruled that the Canadian Recording Industry Association didn’t have the authority to request that kind of private personal data.

The proposed multi-country agreement (which reportedly involves the U.S., Canada, the European Union, Japan, Mexico and South Korea) is called the Anti-Counterfeiting Trade Agreement, or ACTA. In addition to the ability to force ISPs to provide customer info, the agreement would also give border guards the right to inspect laptops, cameras, iPods and other devices for any illegal digital content, and would allow them to take action without requiring a complaint from a rights-holder. The agreement would permit guards and others to conduct “ex parte” searches of property or individuals, meaning a lawyer would not have to be present.

The agreement contains a clause allowing governments to shut down even non-commercial infringing sites, a clause which has become known as “the Pirate Bay killer,” after the popular file-sharing service based in Sweden, which is currently being sued by the major record companies and movie studios for copyright infringement. According to at least one analysis, many of the assumptions on which the ACTA is based are flawed. Others have argued that copyright law itself needs to be re-engineered to take account of the spread of digital content.

Michael Geist, who holds the Canada Research Chair in Internet and e-commerce law at the University of Ottawa, says that the proposed agreement would “strike at the very heart of every day activities for millions of Canadians.” He has written on his blog about the problems with the ACTA proposal, including posts here, here and here. The Canadian Internet Policy and Public Interest Clinic made a submission to the federal government with its criticisms of the proposed agreement, which can be found online (PDF document).

The ACTA agreement is separate from new federal copyright legislation, which Geist says could be coming as early as next week, and is also expected to clamp down on a wide range of behaviour involving digital content — in much the same way that the U.S. Digital Millennium Copyright Act or DMCA does. The bill was originally supposed to be tabled last fall, but was withdrawn by the government after a storm of protest, including a prominent Facebook group set up by Prof. Geist that eventually gathered more than 40,000 members.