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Wednesday September 9, 2009
Bell: Why Don't Content Owners Sue Our Subscribers?

The government has just posted the audio from the Toronto copyright roundtable held in late August. The discussion started off with a bang with comments from Bell Canada. Bell had a lot of good things to say including support for the positions of Business Coalition for Balanced Copyright.  The discussion turned quickly to the role of ISPs in addressing allegations of infringement on their networks.  Bell receives upwards of 15,000 notices every month under the notice-and-notice system (primarily from the movie, gaming, and software industry), a volume that raises concerns about the associated costs.  Bell also provided a strong rejection of a three-strikes and you're out system describing those proposals as "outrageous."

The company then moved into the area of potential lawsuits with some surprising remarks:

"A role we don’t hear much about though is the role of content owners to defend in Canada their own statutory rights. Bell and a few other Canadian ISPs several years ago spent time and resources in the courts helping to develop the legal blueprint that content owners would need if and when they decided to legally pursue their rights in a way that respects the privacy and judicial rights of Canadians.  We’re still waiting.  No one is crazy about suing consumers because it is not popular.  But what sort of message does it send to Canadians about the legality of the activity when an entire industry says we won’t be suing Canadians for sharing our content without our permission."

While one can understand Bell's frustration at the demands to "do more" on the copyright file, pushing the industry to file lawsuits against its own customers surely is not the right approach.  The recording industry has stated that it does not want to pursue the lawsuit strategy, yet Canada's largest ISP thinks that not suing sends the wrong message to Canadians?  Years of experience shows that neither locks nor lawsuits provide any real benefit to the industry or the artists and the last thing ISPs should be promoting is lawsuits againt their own customers.

In case you needed another reason, the comments serve as a reminder why Canadians must speak for themselves during this copyright consultation.  There are just five days left and submitting to the process takes nothing more than an email - make sure yours is filed today.

2009 Copyright Consultation
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The ISP Copyright Consultation Questions

Submitted by mgeist on July 17, 2009 - 4:00am

Mediacaster posts the questions pertaining to ISPs that have been posed as part of the forthcoming copyright consultation. These include notice-and-takedown, ISP liability, and a making available right. The full consultation launches on Monday.

Canada Post Plays Grinch in Takedown Fight

Submitted by administrator on January 26, 2009 - 2:08pm
Teaser: 
Late last year, Canada Post and the Public Service Alliance of Canada became embroiled in a heated strike action over sick pay benefits. In the midst of the dispute, several PSAC members took direct aim at Canada Post CEO Moya Greene, recording a short parody video titled "The Greench." The video, which was posted on YouTube, adapted the well-known Dr. Seuss tune "You’re a Mean One, Mr. Grinch" to criticize Greene and the company.
Date Published: 
Monday, 26 January 2009
Publisher: 
Toronto Star
Description: 
canada post takedown column
Tuesday August 19, 2008
61 Reforms to C-61, Day 42: ISP Notice and Notice - No Penalty for False Notices
A second concern associated with the notice and notice approach in Bill C-61 is the absence of a penalty against claimants that file wrongful notices. This means that subscribers may receive completely erroneous notices regarding allegedly infringing content with no consequences to claimant.  Section 41.25(2) includes considerable specificity about what should be included in a complainant notice: the notice must in writing (in the form prescribed by the government if it chooses to include one) state the claimant's name and address identify the work at issue state the claimant's right or interest to the copyright in the work identify the location data related to the claimed infringement state the infringement claimed along with the date and time of the alleged infringement There is currently no fee associated with these notices, though the government may establish one by regulation.  The absence of a penalty for false notices is a mistake that could open the process to abuse.  While the government could intervene by establishing a notice fee (and thereby create a financial disincentive against wrongful notices), a better approach would be to create penalties for abusive notices.
61 reforms, day 42

A second concern associated with the notice and notice approach in Bill C-61 is the absence of a penalty against claimants that file wrongful notices. This means that subscribers may receive completely erroneous notices regarding allegedly infringing content with no consequences to claimant.  Section 41.25(2) includes considerable specificity about what should be included in a complainant notice:

  • the notice must in writing (in the form prescribed by the government if it chooses to include one)
  • state the claimant's name and address
  • identify the work at issue
  • state the claimant's right or interest to the copyright in the work
  • identify the location data related to the claimed infringement
  • state the infringement claimed along with the date and time of the alleged infringement

There is currently no fee associated with these notices, though the government may establish one by regulation.  The absence of a penalty for false notices is a mistake that could open the process to abuse.  While the government could intervene by establishing a notice fee (and thereby create a financial disincentive against wrongful notices), a better approach would be to create penalties for abusive notices.

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Monday August 18, 2008
61 Reforms to C-61, Day 41: ISP Notice and Notice - Mandatory Data Retention
One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages. This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake. While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.
61 reforms, day 41

One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages.

This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.

While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.

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Thursday June 12, 2008
The Canadian DMCA: Check the Fine Print
As expected, the Canadian DMCA is big, complicated, and a close model of the U.S. Digital Millennium Copyright Act (Industry Canada provides a large number of fact sheets here).  I'll have much more to say once I've had a careful read, but these are my five key points to take away: 1.   As expected, Prentice has provided a series of attention-grabbing provisions to consumers including time shifting, private copying of music (transferring a song to your iPod), and format shifting (changing format from analog to digital).  These are good provisions that did not exist in the delayed December bill.  However, check the fine print since the rules are subject to a host of strict limitations and, more importantly, undermined by the digital lock provisions.  The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down (ie. copy-controlled CD, no-copy mandate on a digital television broadcast) cannot be copied. As for every day activities like transferring a DVD to your iPod - those are infringing too. Indeed, the law makes it an infringement to circumvent the locks for these purposes. 2.   The digital lock provisions are worse than the DMCA.  Yes - worse.  The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.  While Prentice could have adopted a more balanced approach (as New Zealand and Canada's Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM'd book, or even unlocking a cellphone.  While that is the similar to the U.S. law, the exceptions are worse.  The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can't actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned.  In other words, check the fine print again - you can protect your privacy but the tools to do so are now illegal.  Dig deeper and it gets worse.  Under the U.S. law, there is mandatory review process every three years to identify new exceptions.  Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years.  3.   The other headline grabber is the $500 fine for private use infringement.  This will be heralded as a reasonable compromise, but check the fine print.  Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement).  Moreover, it is already arguably legal to download sound recordings in Canada.  Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award. 4.   The ISP provisions are precisely as expected with a statutory notice-and-notice system.  However, check the fine print.  The role of the ISP may be undermined by the Anti-Counterfeiting Trade Agreement, which the government trumpets in its press release. 5.   The education community received several provisions that are largely gutted by the fine print.  For example, library materials can be distributed in electronic form, but must not extend beyond five days.  In other words, it turns librarians into locksmiths.  Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used.  In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction.  This was precisely what many feared - rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning. I'll have more to say soon, but the takeaway is that the DMCA provisions are worse than the U.S. and the consumer exceptions riddled with limitations as the government promotes a strategy of locking down content and launching lawsuits against Internet users.
canadian dmca fine print

As expected, the Canadian DMCA is big, complicated, and a close model of the U.S. Digital Millennium Copyright Act (Industry Canada provides a large number of fact sheets here).  I'll have much more to say once I've had a careful read, but these are my five key points to take away:

1.   As expected, Prentice has provided a series of attention-grabbing provisions to consumers including time shifting, private copying of music (transferring a song to your iPod), and format shifting (changing format from analog to digital).  These are good provisions that did not exist in the delayed December bill.  However, check the fine print since the rules are subject to a host of strict limitations and, more importantly, undermined by the digital lock provisions.  The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down (ie. copy-controlled CD, no-copy mandate on a digital television broadcast) cannot be copied. As for every day activities like transferring a DVD to your iPod - those are infringing too. Indeed, the law makes it an infringement to circumvent the locks for these purposes.

2.   The digital lock provisions are worse than the DMCA.  Yes - worse.  The law creates a blanket prohibition on circumvention with very limited exceptions and creates a ban against distributing the tools that can be used to circumvent.  While Prentice could have adopted a more balanced approach (as New Zealand and Canada's Bill C-60 did), the effect of these provisions will be to make Canadians infringers for a host of activities that are common today including watching out-of-region-coded DVDs, copying and pasting materials from a DRM'd book, or even unlocking a cellphone. 

While that is the similar to the U.S. law, the exceptions are worse.  The Canadian law includes a few limited exceptions for privacy, encryption research, interoperable computer programs, people with sight disabilities, and security, yet Canadians can't actually use these exceptions since the tools needed to pick the digital lock in order to protect their privacy are banned.  In other words, check the fine print again - you can protect your privacy but the tools to do so are now illegal.  Dig deeper and it gets worse.  Under the U.S. law, there is mandatory review process every three years to identify new exceptions.  Under the Canadian law, its up to the government to introduce new exceptions if it thinks it is needed. Overall, these anti-circumvention provisions go far beyond what is needed to comply with the WIPO Internet treaties and represents an astonishing abdication of the principles of copyright balance that have guided Canadian policy for many years. 

3.   The other headline grabber is the $500 fine for private use infringement.  This will be heralded as a reasonable compromise, but check the fine print.  Canadian law already allows a court to order damages below $500 per infringement, so the change may not be as dramatic as expected (though $500 in damages is the maximum for private use infringement).  Moreover, it is already arguably legal to download sound recordings in Canada.  Under the proposal, there are exceptions for uploading or posting music online (ie. making available) and even the suggestion that posting a copyright-protected work to YouTube could result in the larger $20,000 per infringement damage award.

4.   The ISP provisions are precisely as expected with a statutory notice-and-notice system.  However, check the fine print.  The role of the ISP may be undermined by the Anti-Counterfeiting Trade Agreement, which the government trumpets in its press release.

5.   The education community received several provisions that are largely gutted by the fine print.  For example, library materials can be distributed in electronic form, but must not extend beyond five days.  In other words, it turns librarians into locksmiths.  Moreover, there is an Internet exception that educators wanted but it does not apply for any works that are either password protected or include a notification that they cannot be used.  In other words, online materials that are available under a Creative Commons license are fair game (as they are already), but most everything else is still potentially subject to a restriction.  This was precisely what many feared - rather than pursuing the far superior expansion of fair dealing, the education community got a provision that does little to enhance classroom learning.

I'll have more to say soon, but the takeaway is that the DMCA provisions are worse than the U.S. and the consumer exceptions riddled with limitations as the government promotes a strategy of locking down content and launching lawsuits against Internet users.

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Thursday February 15, 2007
The Effectiveness of Notice and Notice
The CBC runs a story today on the growing use of "notice and notice" by copyright holders.  Telus apparently sends out about a thousand notices each week, while the Business Software Alliance says it sent out 60,000 notifications to Canadians last year. These numbers are consistent with my own experience as I now regularly receive emails from Canadians asking about the implications of such notifications.  The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization on file sharing systems.  The Internet Service Provider forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and as the CBC story notes, many remove the infringing content (if indeed it is infringing) voluntarily.  Some people object to U.S.-based notifications that carry no legal weight in Canada being sent to Canadians with the cooperation of Canadian ISPs.  I am supportive of the system since I think it balances various interests in fair manner.  First, it stands in marked contrast to the U.S. notice and takedown approach, which creates incentives for ISPs to remove content without warning or evidence of actual infringement.  The recent avalanche of Viacom notices - which targeted dozens of non-infringing videos - provides a good case study for why the notice and takedown system can have a chilling effect on online speech.  Second, the approach protects user privacy, consistent with national privacy law and the CRIA file sharing case from 2004.  Third, it reflects a consistency between industry practice and proposed legislation.  While Bill C-60 was criticized for some its provisions, many applauded the decision to codify a notice-and-notice system into law (I assessed the ISP provisions here).  The IIPA may be demanding that Canada follow the U.S. approach, but the effectiveness of the Canadian notice and notice system demonstrates that a balancing privacy, free speech, and copyright can lead to solutions that serve everyone's best interests.
notice and notice in canada

The CBC runs a story today on the growing use of "notice and notice" by copyright holders.  Telus apparently sends out about a thousand notices each week, while the Business Software Alliance says it sent out 60,000 notifications to Canadians last year. These numbers are consistent with my own experience as I now regularly receive emails from Canadians asking about the implications of such notifications. 

The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization on file sharing systems.  The Internet Service Provider forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and as the CBC story notes, many remove the infringing content (if indeed it is infringing) voluntarily. 

Some people object to U.S.-based notifications that carry no legal weight in Canada being sent to Canadians with the cooperation of Canadian ISPs.  I am supportive of the system since I think it balances various interests in fair manner.  First, it stands in marked contrast to the U.S. notice and takedown approach, which creates incentives for ISPs to remove content without warning or evidence of actual infringement.  The recent avalanche of Viacom notices - which targeted dozens of non-infringing videos - provides a good case study for why the notice and takedown system can have a chilling effect on online speech.  Second, the approach protects user privacy, consistent with national privacy law and the CRIA file sharing case from 2004.  Third, it reflects a consistency between industry practice and proposed legislation.  While Bill C-60 was criticized for some its provisions, many applauded the decision to codify a notice-and-notice system into law (I assessed the ISP provisions here).  The IIPA may be demanding that Canada follow the U.S. approach, but the effectiveness of the Canadian notice and notice system demonstrates that a balancing privacy, free speech, and copyright can lead to solutions that serve everyone's best interests.

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