It is too much for me to do all at once, so I will post over the next week or two as I complete each major issue and welcome feedback if readers have different interpretations of the bill.
I'll start with ISPs and search engines. There are some surprises here particularly with respect to the inclusion of search engines and other Internet archives. In fact, the search engine provisions raise some cause for concern since they effectively create a notice and takedown system that will encourage search engines to remove content based on mere allegations of infringement without any consequences for wrongful claims.
As I previously noted, Internet service providers are one of the big winners with this bill. There are several important provisions for the ISPs. First, the new s. 31.1 provides additional clarity (the Supreme Court ruled along these lines last summer) that providers of network services do not infringe copyright solely by providing the technology that enables the telecommunication or reproduction of a work.
Section 31.1(2) adds that caching is also covered by this immunity provision. In order to qualify for the caching provision, however, network providers must meet three conditions: (a) they do not modify the content; (b) they respect any limitations established by the person who posted the content; and (c) they do not interfere with lawful access to usage data related to it.
The bill also provides immunity against copyright infringement for ISPs for the content that they host (Section 31.1(4)). That immunity is limited, however, since it does not apply where the ISP has actual knowledge of a court decision that the person who has stored the content on the ISPs servers has infringed copyright by doing so.
The other significant ISP related provision is the establishment of a "notice-and-notice" system in Section 40.1. The system includes the following steps and conditions:
i. A copyright owner may send a notice claiming infringement to an ISP. That ISP either provides connectivity or hosting services related to the alleged infringement.
ii. The notice must be in writing. It must follow a form (if the government prescribes one) and must:
– state the claimant's name and address
– identify the work at issue and the claimant's interest in it
– specify the relevant location data
– specify the claimed infringement as well as its time and date
iii. If an ISP receives such a notice, and claimant's pays the applicable fee (which is zero unless the government sets a maximum amount), the ISP must do two things. First, it must forward the notice electronically to its subscriber (or advise the claimant why it was unable to do so). Second, it must retain records that will allow the identity of the person to whom the electronic location belongs to be determined for a period of six months. Moreover, if the claimant commences legal proceedings against the subscriber, the data retention period extends to a full year.
iv. An ISP that fails to notify the subscriber is subject to a maximum damage award of $5,000, while failure to retain the subscriber data brings with it a maximum damage award of $10,000.
Those people familiar with the law elsewhere will recognize that this system represents an important departure from the U.S. style notice and takedown system, which requires an ISP to remove allegedly infringing content where possible. That system has been criticized both for being completely ineffective and for its chilling effect on Internet users.
The bill does not include a penalty against a claimant that files a wrongful notice. This means that subscribers may receive completely erroneous notices regarding allegedly infringing content with no consequences to claimant, though presumably the government could establish a filing fee if this becomes a significant problem.
2. Search Engines/Information Location Tool Providers (ILTPs)
The bill also contains some unexpected provisions that address caching by "information location tool providers." An information location tool is defined as an instrument that allows someone to locate information that is available by means of the Internet or any other digital network. The most obvious such providers are Internet search engines and large Internet archives.
The bill provides that the notice and notice system described for ISPs also applies in a limited context to ILTPs. The ILTP provision (Section 40.3) limits the remedy available to a copyright owner to an injunction where an ILTP is alleged to have infringed copyright by making a cached copy of a work. In other words, ILTPs will not be liable for damages for caching content, but can be compelled to remove content from their cache.
In order to qualify for this limitation of liability, an ILTP must meet five conditions:
i. The caching occurs automatically and solely for the purpose of providing the information location service
ii. It must not modify the work
iii. It complies with any conditions relating to caching established by the person who made the content available, provided that the conditions are suitable for automatic implementation
iv. It does not interfere with lawful access to the usage data; and
v. It has not received notice under the "notice and notice" system.
This suggests that the government has effectively established a "notice and takedown" system for ILTP caching since most search engines will want to qualify for the limitation of liability and they will therefore remove allegedly infringing content from their cache if they receive such a notice. I think this is very problematic, particularly since there are no consequences to the claimant for submitting a false claim. One can easily envision competitors using the system to file claims with a search engine such as Google. Assuming Google removes the link, that would lead to decreased traffic for a site. Similar concerns would arise with free speech sites, which might see their traffic reduced if removed from the Google cache based on a wrongful claim. These scenarios clearly call for a counterbalance to ensure that the search engine notice and takedown approach is not abused, but unfortunately the bill in its current form does not include such a provision.