The Canadian Internet community has been buzzing for the past week over
reports that a Montreal-based company has captured data on one million
Canadians who it says have engaged in unauthorized file sharing. While
that represents a relatively small percentage of Internet users in
Canada, the possibility of hundreds of thousands of lawsuits over
alleged copyright infringement would be unprecedented and raise a host
of legal and policy issues.
My weekly technology law column (Toronto Star version, homepage version) notes the prospect of mass lawsuits will be of particular interest to the
federal government, which just completed a major round of copyright
reforms. The new copyright bill established a cap on damages that was
explicitly designed to dissuade would-be litigants from targeting
individuals. In fact, during hearings into the copyright reform bill,
Members of Parliament were given assurances that the industry had no
desire to launch file sharing lawsuits.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday December 04, 2012 |
|
View
|
|
Appeared in the Toronto Star on December 2, 2012 as New Wave of File Sharing Lawsuits Could Test Canadian Law
The Canadian Internet community has been buzzing for the past week over
reports that a Montreal-based company has captured data on one million
Canadians who it says have engaged in unauthorized file sharing. While
that represents a relatively small percentage of Internet users in
Canada, the possibility of hundreds of thousands of lawsuits over
alleged copyright infringement would be unprecedented and raise a host
of legal and policy issues.
The prospect of mass lawsuits will be of particular interest to the
federal government, which just completed a major round of copyright
reforms. The new copyright bill established a cap on damages that was
explicitly designed to dissuade would-be litigants from targeting
individuals. In fact, during hearings into the copyright reform bill,
Members of Parliament were given assurances that the industry had no
desire to launch file sharing lawsuits.
The practice of suing individuals for copyright infringement arising
from file sharing started in 2003 in the United States, where tens of
thousands of people have since received letters alleging infringement.
The letters typically claim that liability could run into the millions
of dollars based on U.S. rules that provide for up to US$150,000 per
infringement. Recipients are encouraged to settle for several thousand
dollars, a steep price to pay for a few songs or movies.
Canadians first encountered file sharing lawsuits in 2004, when members
of the Canadian Recording Industry Association filed actions against 29
alleged file sharers. The Canadian initiative was a failure, however, as
a federal court judge expressed concern about the privacy implications
of the lawsuits, doubts about whether downloading music constituted
copyright infringement, and misgivings with the evidence tendered by the
industry.
With an eye on the ongoing U.S. lawsuits, the Canadian government made
reforms to discourage file sharing lawsuits against individuals a
priority. For example, Industry Minister Christian Paradis told the
House of Commons "we are concerned about the threat of major penalties
that hang over Canadians who infringe copyright for non-commercial
purposes. Currently, those who have been found to violate copyright can
be found liable for damages from $500 to $20,000 per work. If people
illegally download five songs, for example, they could theoretically be
liable for $100,000. In our view, such penalties are way out of line."
The solution was to change Canada's statutory damages rules by
distinguishing between commercial infringement (which still carries
liability of up to $20,000 per infringement) and non-commercial
infringement, which now features a maximum liability of $5,000 for all
infringements. While $5,000 is still very expensive for a downloaded
movie, the law permits judges to award damages as low as $100 in such
cases.
In fact, the law instructs judges to consider "in the case of
infringements for non-commercial purposes, the need for an award to be
proportionate to the infringements, in consideration of the hardship the
award may cause to the defendant, whether the infringement was for
private purposes or not, and the impact of the infringements on the
plaintiff."
Rights holders can elect to pursue actual damages from copyright
infringement instead of statutory damages, but those are likely to be
even smaller in the case of a downloaded movie or song. The net effect,
as the government indicated in its advisory on the bill, is supposed to
be that "Canadians will not face disproportionate penalties for minor
infringements of copyright."
Despite the government's intentions, the prospect of hundreds of
thousands of lawsuits is apparently still a real possibility. With the
law instructing judges to award as little as $100 for all non-commercial
infringements, the question is now whether these cases will lead to
clogged courts as individuals rely on recent legal reforms to challenge
demands for thousands of dollars to settle infringement claims.
Michael Geist holds the Canada Research Chair in Internet and
E-commerce Law at the University of Ottawa, Faculty of Law. He can
reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday December 04, 2012 |
|
|
