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As the misuse of the Canada’s copyright notice-and-notice system continues to attract attention, Industry Canada has taken the first step to try to alleviate public concern. The department has posted an advisory on the notice-and-notice system which seeks to assuage consumer concern, noting that U.S. copyright penalties do not apply in Canada and that the statutory damages cap for non-commercial infringement is C$5000. It also states:
This is important information that provides much needed context for the notices. As I noted last week, some Internet providers are forwarding similar information to their subscribers.
But not all. A reader recently sent me the Videotron copyright notice, which is notable for at least two reasons. First, the notice ignores the existence of user rights such as fair dealing and protection for non-commercial user generated content. While those provisions permit usage of copyright materials without permission, Videotron warns that “generally, you must obtain the permission or rights in order to reproduce any protected material.”
Second, the notice oddly claims to protect the privacy of the rights holder sending the complaint, stating:
Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law. If you want to know who the plaintiff is, you can search on the internet who is the copyright owner of the material referenced in the complaint.
This is bizarre statement since the notice does identify the copyright owner and complainant. In fact, providing the name and address of the complainant is a statutory requirement under the Canadian law. Why Videotron would claim to safeguard such information when it is a legal requirement to disclose it suggests that the company might want to take a closer look at both the law and the notices that it forwards.
A full copy of the Videotron notice (which contains both English and French versions) is posted below.
English Version Follows]
The post Videotron’s Odd Copyright Notices: No User Rights and Inaccurate Privacy Information appeared first on Michael Geist.
When hackers believed by the U.S. government to have been sponsored by the state of North Korea infiltrated Sony Pictures’ corporate network and leaked reams of sensitive documents, the act was quickly labeled an act of “cyberterrorism.” When hackers claiming to be affiliated with ISIS subsequently hijacked the YouTube and Twitter accounts of the U.S. […]
Last week I posted on how Rightscorp, a U.S.-based anti-piracy company, was using Canada’s new copyright notice-and-notice system to require Internet providers to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.
The revelations attracted considerable attention (I covered the issue in my weekly technology law column – Toronto Star version, homepage version), with NDP Industry Critic Peggy Nash calling on the government to close the loophole that permits false threats. Nash noted that “Canadians are receiving notices threatening them with fines thirty times higher than the law allows for allegedly downloading copyrighted material. The Conservatives are letting these companies send false legal information to Canadians in order to scare them into paying settlements for movies or music no one has even proved they’ve actually downloaded.”
With the notices escalating as a political issue, Jake Enright, Industry Minister James Moore’s spokesman, said on Friday the government would take action. Enright said that “these notices are misleading and companies cannot use them to demand money from Canadians”, adding that government officials would be contacting ISPs and rights holders to stop the practice.
While that is encouraging, the reality is that this is a mess of the government’s own making. In fact, according to documents obtained under Access to Information, the government previously dismissed calls for changes to the system from Internet providers. Moreover, Industry Canada officials conducted consultations that were designed to create reforms that might have stopped these practices. Moore decided to forge ahead with the notice-and-notice system without any additional regulations, however, a decision that lies at the heart of the current problem.
According to the internal documents, Industry Canada officials prepared a list of issues with the notice-and-notice system as early as July 2012. It raised the possibility of establishing a strict template for use in notices. Had the government implemented a template in the regulations, the threatening notices from Rightscorp would be invalid. Moreover, by the fall of 2012, the government prepared a letter to stakeholders and a backgrounder that invoked the regulatory powers to prescribe the form or content of the notice and to decrease the statutory damages for failing to meet the notice-and-notice obligations. Moore announced in June 2014 that the system would be implemented without regulations.
This was not the first time Moore decided against reforms to the notice-and-notice system. Further government documents reveal that Bell Canada recommended reforms in January 2012 (before the bill was passed) that included a removal of a minimum statutory damage for failure to to forward a notice. Had the reform been accepted, the government would now be in a position to recommend that Internet providers not forward the misleading Rightscorp notices without fear of liability.
Not only does Moore bear some responsibility for establishing the notice-and-notice rules without regulations, but there is now no quick fix. The Minister may promise to talk to the ISPs and rights holders, but what is going to say? His own rules require ISPs to forward notifications to subscribers under threat of a minimum of $5000 in statutory damages for failing to do so. His own rules do not include a specific form that could have been used to exclude the misleading assertions on Canadian law and the efforts to scare individuals into paying settlement fees. ISPs have little choice but to forward the notifications and there seems little likelihood that a company like Rightscorp, which is being sued in the U.S. for its practices, will care what a Canadian government minister has to say.
Merely stating that the government disapproves of the misleading practices is not enough. To address the issue, the government should ask the Competition Bureau to conduct an investigation into the misleading conduct. Moreover, Moore should move quickly to implement the very regulations he previously dismissed, which could be used to prohibit the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information.
The post Canada’s Copyright Notice Fiasco: Why Industry Minister James Moore Bears Some Responsibility appeared first on Michael Geist.
Canada’s new copyright notification system – dubbed the “notice-and-notice” approach since it allows rights holders to send notices alleging infringement to Internet providers who are required to forward those notices to subscribers – took effect at the start of the year. The launch attracted considerable attention with many Canadians examining their Internet habits and the state of Canadian copyright law.
Supporters of the approach, which has been used informally for over a decade, argue that it strikes the right balance by educating the public about copyright without the threat of lawsuits or lost Internet access. Internet providers do not disclose their subscribers’ identity and the government has created strict caps on liability for non-commercial infringement, making lawsuits for individual file sharing unlikely.
Yet despite the good intentions, the notice-and-notice system has already been subject to misuse. At least one U.S.-based anti-piracy firm has been using the system to send notifications to subscribers that misstate Canadian law, citing U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they pay a settlement fee.
The inclusion of a settlement fee demand within the notices is the consequence of a loophole in the law that arose due to Industry Minister James Moore’s desire to implement the system without accompanying regulations. On Friday, NDP Industry Critic Peggy Nash called on the government to close the loophole, noting “the Conservatives have a duty to protect the public against companies that try to intimidate Canadians by sending them false legal information. They need to close the loopholes now.”
The government engaged in a lengthy consultation process on notice-and-notice regulations after passing its 2012 copyright reform package. Internet providers argued that the system transferred significant costs to them in order to process notices and that there should be a fee charged to rights holders. Moreover, they noted that the law specified certain requirements for the notices, but did not establish any limitations on the inclusion of additional information nor any penalties for notices that contain false or misleading information.
Most stakeholders expected some regulations, but Moore decided to forge ahead with only the statutory provisions. As a result, companies are free to use the notice system to add information that extends beyond the minimum required by the statute. Although the system is only days old, rights holders have already sent notices that contain inaccurate legal information accompanied by demands for payment.
For example, one notice obtained the Star claims that Canadian subscribers could face liability of up to $150,000 per infringement. In reality, Canadian law limits liability at $5,000 for all infringements. Moreover, the same notice also warns that subscribers could face suspension of their accounts, though there is no such provision under Canadian law.
Relying on the false information regarding Canadian law, the notice then offers to “settle” the dispute if the subscriber pays a fee of $20. The notice does not mention that the rights holder does not know the identity of the subscriber and would need a court order to proceed with potential litigation.
The misuse of the Canadian system could have been avoided with more detailed regulations that featured explicit limits on the content of copyright notices. Without such limitations, rights holders are free to exploit the loophole by using the system in a manner that was never envisioned by the government, sending millions of demand letters at no cost to unsuspecting Canadians.
Given the current situation, Internet service providers should add their own information to the notices, providing their subscribers with an accurate picture of Canadian law and assurances that they have not disclosed their information to the notice sender. In fact, several providers have started supplementing the notices with additional information to subscribers so that they better understand the context of threats. Interestingly, in the United States, Internet giant Comcast has removed threatening language from notices before forwarding them to subscribers.
Further, Moore should move quickly to implement regulations prohibiting the inclusion of settlement demands within the notices and create penalties for those companies that send notices with false or misleading information. The federal government regularly cites the notice-and-notice system as a balanced approach, but its fairness is being undermined with Canadians now facing the prospect of a barrage of misleading settlement demands.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at email@example.com or online at www.michaelgeist.ca.
The post Canadians Facing Barrage of Misleading Copyright Demand Notices Due Loophole in New Law appeared first on Michael Geist.
Canadian ISPs Responding to Copyright Notices By Adding Information on Notice System, Privacy Concerns
The revelations that Rightscorp has been using the new copyright notice-and-notice system to force Internet providers to forward notifications with false copyright law information and demands for payment sparked considerable concern among many Canadian Internet users. In my post on the issue, I suggested two responses. First, the introduction of government regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information. Second, Internet service providers adding their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender.
While there has been no response from the government, some Canadian ISPs are providing their subscribers with much-needed context. For example, TechAeris has posted the message provided by Shaw Cablesystems, which states:
Start Communications, a London-based ISP, states:
Subject: Copyright Infringement Notice
TorrentFreak has posted the message from Bell Aliant:
From: Copyright Notification
These are a good start, but TekSavvy’s proposed message provides even more detail and reassures subscribers on the status of their personal information. Yesterday, TekSavvy’s CEO Marc Gaudrault posted a sample message the company is considering including with the notice:
Subject: Notice of claimed copyright infringement
This is precisely the kind of the information that ISPs should be providing their subscribers, though action to stop misleading or inaccurate notices along with settlement demands in notices is still needed. It remains to be seen how some of the other major ISPs handle the notice-and-notice issue.
The post Canadian ISPs Responding to Copyright Notices By Adding Information on Notice System, Privacy Concerns appeared first on Michael Geist.
Rightscorp and BMG Exploiting Copyright Notice-and-Notice System: Citing False Legal Information in Payment Demands
Canada’s new copyright notice-and-notice system has been in place for less than a week, but rights holders are already exploiting a loophole to send demands for payment citing false legal information. Earlier this week, a Canadian ISP forwarded to me a sample notice it received from Rightscorp on behalf of BMG Rights Management. The notice, which is posted below with identifying information removed, must be forwarded to the subscriber or the ISP faces the possibility of statutory damages of between $5 – 10,000. Rightscorp announced that it was entering the Canadian market last year, so its participation in the notice-and-notice system is not a surprise. What is surprising is that the company has brought its model of issuing demands for payments to Canada by warning of U.S. damage awards and Internet termination in order to stoke fear among Canadians that they could face massive liability if they refuse to pay.
The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), some experts argue that certain personal music downloads may qualify as private copying and therefore be legal in Canada (Howard Knopf explains the applicability when the music is copied to “audio recording medium”).
In addition to misstating Canadian law, the notice is instructive for what it does not say. While a recipient might fear a lawsuit with huge liability, there is very little likelihood of a lawsuit given that Rightscorp and BMG do not have the personal information of the subscriber. To obtain that information, they would need a court order, which can be a very expensive proposition. Moreover, this is merely an allegation that would need to be proven in court (assuming the rights holder is able to obtain a court order for the subscriber information).
The full notice states:
Subject: Unauthorized Use of Copyrights RE:
In a nutshell, Rightscorp and BMG are using the notice-and-notice system to require ISPs to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.
The government could have avoided this misuse of the system had it issued regulations specifying the precise content of the notices. Despite months of discussions on the regulations, Industry Minister James Moore abandoned the process, implementing the system with no additional information requirements and no sanctions for the inclusion of false or misleading information. The government’s backgrounder says that the law “sets clear rules on the content of these notices”, however, it does not restrict the ability for rights holders to include information that goes beyond the statutory minimum. Rightscorp and BMG are exploiting this loophole to send demands for payment accompanied by false information on Canadian law.
These actions necessitate two responses. First, Internet service providers should add their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender. The law does not prohibit ISPs from adding additional information within the forwarded notice and they should begin doing so immediately.
Second, the government should quickly implement regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information. The Canadian government has frequently defended the notice-and-notice system as a balanced approach, but its fairness is being undermined with Canadians now facing the prospect of misleading settlement demands.
Glass Houses and Throwing Stones: Why a Canadian Anti-Piracy Firm May Need to Send Itself Copyright Infringement Notices
Canipre, a Montreal-based intellectual property enforcement firm, yesterday issued a press release announcing an infringement monitoring program designed to take advantage of the new copyright notice-and-notice system. The release notes that the service detects online infringement and sends notifications alleging infringement to Canadian Internet providers, who must forward the notifications to their subscribers. The company has been involved in the Voltage Pictures – TekSavvy lawsuit and it cites that case as evidence of the effectiveness of its services.
Yet what Canipre does not say is that a blog associated with the company may have been engaged in copyright infringement for many months. The blog – copyrightenforcement.ca – is run by Barry Logan, the company’s Managing Director, Operations (I received an email from Mr. Logan last year that listed the site as his blog address). In addition to posting releases from Canipre and information about the TekSavvy case, the site has posted dozens of full-text articles from media organizations around the world.
For example, last week it posted the full text of a 1200 word article on TV piracy from the Wire Report, an Ottawa-based telecom publication. The article resides behind a paywall limited to subscribers and is listed as “exclusive content.” In fact, reposting full-text articles from other sources is a regular occurrence on the site. Posts in December feature articles from the Huffington Post Canada, Business Insider, and CNET. Earlier posts include full-text articles from the Hollywood Reporter, StreamDaily, Reuters, the Canadian Press, Global News, Vancouver Sun, and the National Post. Some of the posts include articles that strip out reference to the author (Chronicle Herald, CBC) and others include no attribution whatsoever. The site also uses photos from the articles, often without attribution.
While the use of clips of articles will often qualify as fair dealing and even full text of articles can be fair dealing in some circumstances, posting full text articles without attribution or including subscription-only information that is not otherwise available, is much more likely to be viewed as infringement if posted without authorization. Canipre would likely offer its services to the media companies whose work is affected, yet it might want to take a closer look at its internal conduct before throwing stones in the form of thousands of notices alleging infringement.
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