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.