so, yeah, maybe now microsoft should start worrying. just a little.

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I read with interest a short note in ars about how Intel is hard at work porting Android 3.0, or Honeycomb, to x86. While this immediately made me think of x86 powered smartphones, I started to think, well, what can’t you do on a smartphone (or perhaps more appropriate a tablet) that you can on a Wintel box? There are a few things (like graphic-intensive first person shooters) but not a huge number, I think.

And this led to me thinking about Chromium OS and, of course, the prototype Cr-48 that made the rounds late last year, most famously for its fraction-of-a-minute boot times and its usability, while I wait, patiently, as my sad little PC huffs and puffs along for several minutes before showing any signs of life.

Which in turn made me think of a post I wrote back in 2008, where I questioned the assertion that many had made back then about the release of Chrome (the browser, that is) by Google as a “Windows killer” and very much agreed with The Register’s take on it (hint, the story was called: Chrome-fed Googasm bares tech pundit futility, and subtitled: It’s a f***king web browser). And just to be clear, this was before Chromium OS was a twinkle in Google’s eye.

And in that post, I was so bold as to state that Microsoft probably didn’t have much to worry about.

I imagine it should suffice to say that I don’t quite feel the same way these days….

 

who owns your tweets? (@novaspivack)

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Thought I’d tackle a relatively short and easy one today – it’s been a long, long week. Anyway, I noticed a tweet from @novaspivack (via a retweet by @mathewi) asking “Legal question: Who owns the copyright to your tweets, and who has the ultimate right to decide who else can access them?”

Under both the US (§201) and Canadian (s. 13(1)) Copyright Acts, the first owner of a work in which copyright subsists is the author of that work. In other words, you write it, you own it. So that’s your starting point. You write a tweet, you own it.

There are also exceptions to the rule that an author owns the work. For example, if you author something in the course of your employment, your employer will be the first owner of the work absent an agreement to the contrary. So, for example, if you tweet as a part of your job, then copyright in your tweets are owned by your employer, not you, unless you’ve struck a deal saying otherwise with your employer. In the US, this is often referred to as a “work made for hire” (sometimes contracted to “work for hire”).

You can also agree, up front, with a contract with someone else, that a work that you author will be owned by them. Subject to the usual legal niceties of creating a legally enforceable contract (and some caveats, which I won’t get into here), that means that what you write will be owned by that other person. So, for example, you can agree under a contract to tweet for someone else and that those tweets will be owned by that other person.

This can also be done after the fact. You can author a work, and then sell it to someone else under a contract. Then they’ll own it. This could be done with tweets. So for example if a publisher wanted to compile your past tweets into a book, you could sell them the copyright in those tweets, and they’d be free to do what they want with them.

Along similar lines, you can also grant licenses to work you create. The granting of a license means that you give someone else some rights that only you would, in the absence of that grant, be entitled to exercise. So, for example, you could grant someone the right to publish a book of your tweets, in paper form only, in North America. Once you grant that right, then they can publish that book without infringing your copyright.

The reason I mention licenses is because there is a specific term in the Twitter terms of service pursuant to which users of Twitter grant Twitter a license. Here it is, for your reading pleasure:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

“Content” basically means your tweets. So you keep ownership of your tweets. BUT, you grant a license to Twitter to do a whole bunch of stuff with it. These rights constitute, more or less, anything you as the owner could otherwise do. It’s quite broad. Very broad, in fact. Substantively, really the only difference between this and giving up ownership completely is that you can continue to use your tweets in other ways. So for example if you want to put your tweets on Facebook, or your blog, or sell a book of your tweets, you would be free to do so. Then again, so can Twitter, if it wanted to.

All of this of course assumes that the terms of service are enforceable. There are arguments for and against, but that’s a bit beyond the scope of this post.

So the second part of the question is who has the ultimate right to decide who else can access them. While, as you probably know, Twitter does allow you to restrict who can see your tweets, they do have the right to give access to whoever they choose, and completely disregard your settings. I didn’t see anything in their terms of use that imposed a contractual restriction on them to honour restricted user settings. Then again, I haven’t exactly read it word for word.

I imagine there might be situations where you could be able to terminate the contract, even though the terms of service don’t expressly provide for that, but I imagine it would be challenging to suggest that the license rights granted to past tweets would terminate. Interestingly, the rights granted under the license language above aren’t characterized as “perpetual” (i.e. forever), which they often are in such documents.

It may also be worth mentioning that Twitter can control access to your tweets to the extent it involves Twitter. Just to make this clear, they have this provision in their terms of use:

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. Please review the Twitter Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Twitter, its users and the public.

So, for example, they can pull all of your tweets off Twitter, so that no one can see them anymore. However, that doesn’t preclude you from, for example, reposting all your tweets to Facebook or a blog, if you wanted to, and assuming you retained a copy of them.

Of course, lawyers tend to argue about everything and anything, so I’m sure someone out there may be inclined to disagree with something I’ve written above. Which is fine. And of course the usual – not legal advice, no lawyer-client privilege, no obligation or liability. Just in case you live in the US.

Fascinating stuff, isn’t it?

wikipedia, legal authority and facts

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I was in the middle of writing yet another half-finished post (this one on Groupon, in case you were wondering) when I was distracted by a tweet from Barry Sookman on how a court determined that Wikipedia is not a legal authority in US courts, which then pointed to a brief blog entry written by Peter Vogels. In it, he concludes with this statement:

Even though the Smithsonian Institution is now teaming up with Wikipedia that does not validate Wikipedia postings for the Courts. As time moves on Wikipedia may be a reliable source for the Courts, but when is still unpredictable.

which I interpreted as disappointment with the court’s ruling, at least as far as Wikipedia goes. This piqued my interest a bit, so I took at look at the order (PDF – which Mr. Vogels was kind enough to link to in his entry). The operative paragraph was set out in the following footnote in the order:

4The court notes here that defense counsel appears to have cobbled much of his statementof the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. Compare Supplemental to Motion for New Trial (DN 199)at 18–19 with http://en.wikipedia.org/wiki/Strickland_v._Washington (last visited Feb. 9, 2011).The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. Thecourt also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” SCR 3.130(c). See also In re Burghoff, 374 B.R.681 (Bankr. N.D. Iowa 2007) (holding that counsel’s plagiarism violated identical provision of Iowa Rules of Professional Conduct). Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

This, in turn, was a footnote to the following sentence in the order:

The defendant claims that she must be granted a new trial because the representation she received was so deficient as to violate the Sixth Amendment to the United States Constitution.4

I’m not sure the statement of the court above  is necessarily as unfortunate as it sounds. Legal authority is usually used to describe “reporters” – specific publications that publish court decisions. Some are “official”, as in they are approved in some way by the courts, while others, which are still accepted by the courts, are not. These reporters, as far as I am aware, take great care to ensure that decisions are published completely and accurately. They are typically well known by lawyers and judges, so that anyone given a reference to a particular case using a particular citation will be assured that it will be identical, down to the page, of anyone else looking at that citation. For example, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 will allow any lawyer or judge to look up the case described in a specific reporter.

If I’m interpreting the above correctly, the judge seems to be suggesting that the lawyer in question basically tried to rip-off arguments in another case without acknowledging that they came from another case (or rather the Wikipedia entry for the case) – at least for all of the footnote other than the last sentence.

That last sentence, however, I think speaks only to legal authority in the sense I’ve described above. Or at least I hope it does, because that would be a sensible thing to say – after all, the full text of decisions are not published on Wikipedia but rather summaries which are editable by users. And when it comes to citing past decisions as the basis for coming to a new judicial decision, it is probably important to have some degree of reliability, immutability and consistency for your sources. Or perhaps stated simply, lawyers shouldn’t be providing a link to Wikipedia when they’re citing a case as precedent – they should be citing authoritative reporters.

This should be distinguished, I think, from more general use of Wikipedia by the courts to refer to factual matters, which an article in the New York Times summarized the current perspectives quite well. The article in particular noted a case where a US court had rejected references to Wikipedia:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

The article does go on, however, to identify a number of instances where Wikipedia had been accepted by other courts, sometimes for rather important facts, which has been criticized by some:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

while others have been less harsh:

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

I guess my point in all of the above is that I’d be inclined to agree that Wikipedia shouldn’t be used at all to cite legal authority (assuming of course I’m properly interpreting what the court meant), without of course discounting the desirability of perhaps replacing (or supplementing) the rather antiquated, primarily paper-oriented system of legal authority with more modern, internet-accessible means of publication. Conversely, I would think that references to Wikipedia for factual matters should perhaps be a bit more flexible, and I don’t think this particular order  rules that possibility out.

social media, privacy and discovery

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I read with interest a story about a recent case in the US involving a personal injury claim. In short:

Campa Construction Corporation argued it should be granted access to Pedro Caraballo’s Facebook, Myspace and Twitter accounts, including to his deleted files.

The request was “overly broad” and not specific enough in what it was looking for, the court said.

Campa had argued that pictures, videos and posts on the sites were as important as medical records and that they could show Caraballo engaged in activities which would undermine claims about his injuries.Caraballo is suing Campa after a wall fell on top of him as he worked to connect sewer pipes in a trench.

The court indicated that “digital ‘fishing expeditions’ are no less objectionable than their analog antecedents” and therefore declined to grant the request.

It is interesting to compare the US case with a similar decision in Canada a few weeks ago, but with quite different results. In Sparks v. Dube, not only was the request granted, but granted ex parte for the following:

1)  A Preservation Order and, in the alternative, an Interlocutory Injunction are hereby made and issued compelling Erica Sparks: 1) to preserve and maintain without deletions or alterations the entire contents of her personal web page(s) on the social network Facebook including but not limited to photographs, text, links, postings, event details and video clips until further direction of the court, and 2) to participate in the carrying out of the following orders where her participation is required;

2)  The Interlocutory Injunction shall expire ten days after these orders take effect instituted;

3)  The Applicant-Defendant shall personally and immediately serve all orders and a copy of this judgment upon the Plaintiff’s solicitor, Mr. James Crocco, who shall not disclose any of the orders set out herein nor the contents of this judgment except on terms as they are allowed by these orders;

4)  Upon being served, Mr. James Crocco shall arrange for a solicitor in his firm or an agent lawyer of his choice to be appointed to carry out as soon as reasonably possible, and in the case of the Interlocutory Injunction within ten days of the taking effect of these orders, the orders set out that pertain to his client Erica Sparks subject to the following terms:

a)  The appointed solicitor shall be remunerated by the Defendant for his or her services;

b)  That solicitor shall immediately contact Ms. Sparks and, without disclosing the nature of the subject matter to be discussed, schedule a meeting with her at a location convenient to access and download data from the Internet and reduce it to usable form, such as hard copy for data so suited or memory stick or other such device for videos, as soon as reasonably practicable;

c)  Upon personally meeting with Erica Sparks at the location chosen the appointed solicitor shall apprise her of the terms and conditions of the Preservation Order and Interlocutory Injunction as well as the other orders contained herein that pertain to her;

d)  Immediately upon disclosure of the terms and conditions of the orders set out, Erica Sparks, in the presence of the solicitor engaged, shall create a permanent tangible records in hard copy, wherever possible, or to other suitable device, of the entire contents of her web page(s) on Facebook including, but not limited to, all photographs, text and links and shall record by a memory stick or other suitable device any videos posted or linked to Erica’s Sparks’ Webpage, one copy of which shall be sealed upon the carrying out of that part of these orders and delivered to Mr. James Crocco to be held and preserved by him until further direction of the court; but the delivering of a sealed copy of the entirety of her web page(s) shall not operate to preclude Erica Sparks from providing her counsel, Mr. James Crocco, or anyone else of her choosing with a copy of the entirety of her web page(s) in order to prepare for the Production Hearing or further proceedings;

5)  Upon complying with the said orders the solicitor appointed to supervise the downloading of the material referred to herein shall immediately review all of the material downloaded to ensure that the orders have been carried out in full and shall then certify to the court in writing that there has been strict compliance with the orders contained herein, and that the sealed packet represents the entire contents of the Facebook web page(s) of Erica Sparks as well as videos posted or linked to it or them;

6)  Upon the successful execution of the orders set out herein and the execution of the certification of strict compliance with the orders contained herein by the solicitor appointed to supervise the downloading of the material referred to herein  Erica Sparks shall be free to resume unrestricted access to her web page(s) on Facebook including its substantive composition;

7)  The Motion begun on December 9, 2010 shall be adjourned to a date to be fixed by the Clerk of the Court of Queen’s Bench for the Judicial District of Woodstock;

8)  The Defendant shall then file with this court and serve on the Plaintiff, in timely fashion, a Notice of Motion for the production and disclosure of the contents of the sealed packet of information/data;

9)  Once a date for a Production Hearing has been set Mr. James Crocco shall bring to that hearing the sealed packet of data retrieved from the Facebook web page(s) of Erica Sparks pursuant to the orders contained herein;

10)                     Upon completion of the execution of the orders contained herein, that apply to the retrieval of the entire contents of Erica Spark’s Facebook web page(s) on the terms as set out in these orders, the temporary oral sealing order sealing the entire file and court record in this matter that was imposed on December 9, 2010 at the conclusion of the ex parte hearing shall be lifted without further order of the court.

11)                     The Plaintiff shall upon execution of these orders and the holding of a Production Hearing, in timely fashion, file a further and better Affidavit of Documents.

(emphasis added)

Needless to say, quite a different outcome and much to the benefit of defendant, who was seeking evidence to disprove the plaintiff’s claims of damages for soft tissue injuries. Apparently, the case settled shortly after the information was downloaded.

Interesting how both cases involved similar situations, but resulted in quite different outcomes.

the medium is the message

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In the past week I found it interesting how there were two separate initiatives taken by companies that were better known for the distribution of content into the area of content creation. First up was the announcement by YouTube of its NextUp program:

Today we’re announcing YouTube Next’s second initiative, designed exclusively for up-and-coming YouTube Partners: YouTube NextUp. YouTube NextUp is about accelerating the growth of the next big YouTube stars. Up to 25 Partners from around the United States will be selected for the development program, which offers:

  • $35,000 in funding to produce a new project, purchase new tools or advance their overall YouTube careers
  • A spot at a four-day YouTube Creator Camp in which they’ll benefit from 1:1 mentoring and learn an array of production techniques from leading industry and YouTube experts
  • Promotion of their final work and channel
  • The opportunity to become better connected with a special community of aspiring and talented content creators from around the world

Second was an announcement from Netflix that they are, in a way, “funding” the production of an original TV show. Here`s how they describe it:

In all of these cases, the shows are produced before we bring them to Netflix. “House of Cards” represents a slightly more risky approach; while we aren’t producing the show and don’t own it, we are agreeing to license it before it is successfully produced.

TechCrunch has a piece on the Netflix announcement which is, shall we say, rather enthusiastic about the announcement (one of the hints being the title – “Netflix Original Content Is Much More Than A Strategy Shift — It Could Shift An Industry“):

But with House of Cards, the game changes. For the first time, they’re going to get people signing up to Netflix to get first access to content. And if it’s as good as the talent behind it suggests, they might get a lot of people signing up for that very reason.

And if that’s the case, they’ll be doing a lot more of these deals. And that would effectively make them a premium cable television channel — like HBO or Showtime. But they’ll be one with thousands more pieces of content for a lower monthly price. And they’ll be one not burdened by any artificial show times. Most importantly, they’ll be one not burdened by the cable television model — at all.

If Netflix’s new gamble here works, this is the absolutely the future. In three years, we won’t be paying $75 a month to a giant cable conglomerate. We’ll be paying $8 to Netflix and other players that pop up — like HBO (by themselves), perhaps. Sure, there will still be the monthly fee for Internet. But most of us are already paying that. We’d just be removing the ridiculous $75 cable television fee that gives us thousands of channels with content only on at a certain time — and most of which we don’t want.

It’s interesting that TC mentions HBO. If memory serves they also used to be purely a distribution channel until they started getting into content production.

To some extent, I agree with the TC piece (though perhaps not as enthusiastically). I think watching TV on cable (especially with a DVR) is a rather horrific nightmare as compared to watching streamed, on-demand content through the internet. Why flips through pages and pages of schedules or programming grids on digital tuners to figure out what you want to watch and when you can watch it, rather than looking for the show you want to watch, when you want to watch it, and clicking? I really do think the latter form of delivery will become more and more prevalent over time.

On the other hand, I don’t think either Netflix or YouTube venturing into somewhat more direct participation in content creation (and to be clear, in neither case are they actually producing the content) is all that much of a sea change itself. Vertical integration, whether in the entertainment industry or elsewhere isn’t all that new, nor has it necessarily changed the experience of end users. Would I care whether I could watch the show on demand whenever I wanted through the internet, wherever there is a browser, rather than having to figure out when it would be broadcast and either buying a DVR or making sure I’m am home? Yes, definitely. Would I care if, instead getting first crack at the show through Netflix, that I paid David Fincher’s production company (or anyone else for that matter) directly for the privilege of watching it first streamed through his website? Not so much.

Will this really shake up the cable industry and/or kill it? I guess that depends in part on what pipe you’re using to connect to the internet to view your content.

 

larry ellison on cloud computing

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Ran across an interesting video where Larry Ellison rants about the use of the term “cloud computing”. To some extent, I agree with him, insofar as “cloud computing” is a rather vague, all-encompassing statement.

It is also true that companies such as salesforce.com and others have been offering their services for quite some time, and are lumped in when most folks talk about cloud computing.

However, where I perhaps disagree with Mr. Ellison (FWIW) is that cloud computing doesn’t describe anything new at all. I think the relatively new element that cloud computing describes is the use of virtualized systems that allow for the use of hardware infrastructure over many disparate computers (or other devices) in a seamless and scalable manner.

Thus, for example, while salesforce.com may have been around for a decade, Amazon AWS, Microsoft Azure and other infrastructure service providers, as well as the type of technology that enables them (e.g. vSphere) are relatively new. Sure, there were always shared servers available, but until recently, I don`t know of anyone who, as a service provider, offered highly reliable and very scalable virtual private servers on levels exceeding what could be offered in a single box. If you wanted something like that, then the only thing that would be available were separate discrete boxes, proprietary clustering systems, or open source cluster systems (like Beowulf).

For SaaS, frankly it doesn`t really matter all that much – who cares how salesforce.com manages its back-end, so long as its customer are able to access its functionality.

exporting bookmarks with tags from delicious

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So as many of you have already heard, it looks like Yahoo will be shuttering delicious. Sad but apparently true. In any event, one would think that it would be a relatively simple matter to export from delicious and import into your browser’s bookmarks. The export part is relatively straightfoward, but (at least for those using Firefox, which I do), if you want to import your tags along with your bookmarks, things get a little trickier, because of some incompabitilies between the format that delicious uses for its export file (html) and the format that Firefox uses (JSON).

Apparently, some folks far cleverer than I came up with some ruby scripts that can do it, but why go to all that trouble. Here’s the easiest solution I’ve been able to find: Go here but before you follow the steps, make note of the following:

  1. instead of typing in the URL identified in Step 2 (http://api.del.icio.us/posts/all) use this one instead: https://api.del.icio.us/v1/posts/all (you need to copy and paste into the location bar).
  2. In Step 6, there is one minor detail omitted – the steps to restore should be [Bookmark] -> [Organize Bookmarks] -> [import and backup] -> [Restore] -> [Choose file] -> <created file at 5>.
  3. Also in Step 6, if you have a lot of bookmarks be forwarned that Firefox may become non-responsive as it processes the import. It may give you the “script is taking a long time to respond” message. If you do get that, select the “don’t ask again” checkbox and then click “continue”, then go grab a coffee or some other beverage. Once its done, you should have all your bookmarks (and tags) from delicious now safely ensconced in your Firefox bookmarks.

If you still need an online bookmarks tool, consider Mozilla Sync or Diigo. Perhaps not surprisingly, there seems to be a bit of a backlog in processing imported bookmarks into Diigo. If you don’t need to import bookmarks into Firefox and plan to use something like Diigo exclusively, then of course no need to go through all of the hassle above, as (from what I understand) Diigo will import tags when you import your delicious bookmarks.

Goodbye delicious, it’s been nice knowing you.

electronic document regulations for financial institutions finalized

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Earlier this year (May 8 to be precise), the Canadian federal government published some draft regulations relat­ing to the use of elec­tronic doc­u­ments by fed­er­ally reg­u­lated fin­an­cial insti­tu­tions. You can find a rather brief summary in an earlier post, along with some colour commentary comparing the regulations against similar types of provisions in the Ontario Consumer Protection Act and Electronic Commerce Act. You can find the earlier draft regulations in that post or at the Canada Gazette website (scroll down to the bottom).

In any event, about two weeks ago (November 10 to be precise), the federal government released the finalized regulations for banks and bank holding companies, cooperative credit associations, insurance and insurance holding companies and trust and loan companies.

If you haven’t yet reviewed the legislation, you may want to look at my earlier post, which remains, I think, somewhat useful, as the revisions made between the draft and final regulations are not that significant. If you’d like to see for yourself, I’ve taken the liberty of generating redlines (in Word format) for each of them (banks – redline,  coops – redline, insur – redline and trusts – redline) or you can read the summary below.

There’s basically two items that are common across all the regulations. The first isn’t really much of a change but rather the fixing of the date upon which they come into force, which has now been set for June 1, 2011. The second change is a minor clarification that specific information provided in a consent is only applicable if that consent is provided in writing (whether in paper or electronic form). Here’s the specific change, which looks to be common across all four regulations:

(4) TheIf the addressee’s consent is provided in writing, in paper or electronic form, it must include the name of the information system designated by the addressee for the receipt of the electronic document and a list, in paper or electronic form, of the notices, documents or other information that is covered by the consent.

Seems to make sense, given that such consent can also be provided orally, and that is addressed in the next clause:

(5) If the addressee’s consent is provided orally, the originator or the person acting for the originator must, without delay, provide the addressee in writing, in paper or electronic form, with the information referred to in subsection (2) and confirm the information referred to in subsection (4).

The federal government’s provides the following comments in the related regulatory impact analysis statement (scroll down toward the end) with respect to this change, the in-force date and some changes which had been requested but were not made:

Consultation

After pre-publication of these regulations on May 8, 2010, in the Canada Gazette, Part I, comments related to about 10 different issues were raised from financial industry associations. Only two of the four regulations were commented on, namely the Electronic Documents Regulations and the Policyholders Disclosure Regulations. In addition, the comments did not raise any substantial concerns but rather focused on ensuring that the regulations efficiently achieved the stated policy goals.

As a result, the Government has made minor modifications to the Electronic Documents Regulations to more efficiently handle situations where a customer of a financial institution provides oral consent for the electronic delivery of documents. The previous version of the Regulations appeared to require customers to give financial institutions written documentation when giving consent in call cases — notwithstanding the fact that the Regulations allow for consent to be granted orally. Section 5(4) now sets out the information that must be provided when consent is not provided orally (including the name of the information system designated by the addressee and a list of the notices, documents or other information that is covered by the consent). Section 5(5) goes on to set out the responsibilities of the originator to properly document oral consent and confirm the information received from the customer.

Some comments have not been reflected as stakeholders requested changes that were inconsistent with the policy intent of the regulations. For example, requested changes to the Policyholder Disclosure Regulations would have had the effect of unduly narrowing the scope of information provided to holders of insurance policies with governance rights attached. Other comments to remove from the definition of adjustable policies those where an insurance company can indirectly change the premium or charge for insurance would have had the effect of restricting the Government’s ability to ensure compliance with the regulations.

Implementation, enforcement and service standards

Industry representatives asked that the regulations come into force from six months to one year after final publication, indicating operational challenges (systems, procedures, training). To allow financial institutions sufficient time to prepare documentation in advance of annual general meetings, this package of regulations will come into force on June 1, 2011.

The regulations do not require any new mechanisms to ensure compliance and enforcement. The Office of the Superintendent of Financial Institutions (OSFI) already administers the governance provisions in the federal financial institutions statutes. As such, OSFI would ensure compliance with the new requirements using its existing compliance tools, including compliance agreements and administrative monetary penalties.