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notice and notice

Wednesday March 23, 2011
Rogers Provides New Evidence on Effectiveness of Notice-and-Notice System
Bill C-32 looks to be headed for the dustbin if Canada heads into an election this week, but the C-32 committee is still ongoing until someone pulls the plug on the current Parlimentary session. Rogers, Telus, and Bell appeared yesterday and the discussion unsurprisingly focused on the notice-and-notice approach currently used by ISPs and codified within the bill. 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 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. While some rights holders (who the committee learned played a role in establishing notice-and-notice in the first place) have claimed the system is ineffective, Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers - far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. 

This provides solid evidence that notice-and-notice is effective in countering repeat infringement. Although the CRIA-backed Balanced Copryright for Canada group mistakenly claimed this means that one third of alleged infringers receive at least three notices, the reality is that the Rogers data suggests that 67% of recipients (which is already only five percent of subscribers) do not repeat infringe after receiving a notice and 89% cease allegedly infringing activity after a second notice. Within two notices, about 99% of Rogers subscribers are not receiving infringement notifications. 

Those numbers are very similar to data from the Entertainment Software Association of Canada, which found that 71% of notice recipients did not place an infringing file back on BitTorrent systems (though the ESAC chose to focus on the 29% that did repeat infringe, the numbers are consistent with Rogers' experience). Similarly, the Business Software Association told the CBC in 2006 that the notice-and-notice approach has "been most effective." Further, these numbers are also similar to the piracy reduction targets that the UK government has set and which have been lauded by some Canadian rights holders.

The Rogers data does leave about 1% of its subscribers as repeat infringing after two notices (the number drops far below 1% after the third notice).  While some rights holders will claim that this shows there is a need for severe consequences for the tiny fraction of users that ignore notices, the reality is the opposite is true. If any notice system is designed to educate the public and discourage infringement, it is readily apparent that notice-and-notice works extremely well since it is a tiny part of the population that seemingly ignores the notification. Moreover, if there are a couple of outliers in the population - the Rogers data showed about 1 in 800,000 at the extreme end of the spectrum of several dozen notices to a single household - there is absolutely nothing to stop the rights holder from taking legal action against those individuals. There is no need to threatens tens of thousands with cutting off Internet access, when rights holders are perfectly capable of taking action against the (literally) handful of people that repeatedly infringe at the extreme end of the scale.

The committee discussion also touched on the digital lock rules in Bill C-32. Rogers indicated that it supported some digital locks, but that it is opposed to copy control provisions in C-32 that would prevent Canadians from engaging in common consumer activities such as format shifting, time shifting, and backup copies. The ISP opposition to the current C-32 digital lock approach was echoed in the second C-32 panel, where the Canadian Federation for Humanities and Social Sciences and the Canadian Library Association both called for the right to circumvent for non-infringing purposes. In fact, the CLA said the bill is "fundamentally flawed" without such a change.  While Bill C-32 seems set to die on the order paper, there will undoubtedly be another copyright bill with another government and the information on the effectiveness of notice-and-notice - as well as the steadfast opposition to the C-32 digital lock approach - must be taken into account.

rogers on notice and notice
Content Country: 
Canada
Post Category: 
Blog

Bill C-32 looks to be headed for the dustbin if Canada heads into an election this week, but the C-32 committee is still ongoing until someone pulls the plug on the current Parlimentary session. Rogers, Telus, and Bell appeared yesterday and the discussion unsurprisingly focused on the notice-and-notice approach currently used by ISPs and codified within the bill. 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 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.

While some rights holders (who the committee learned played a role in establishing notice-and-notice in the first place) have claimed the system is ineffective, Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers - far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. 

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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 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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