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    Why Liability Is Limited: A Primer on New Copyright Damages as File Sharing Lawsuits Head To Canada

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    Wednesday November 28, 2012
    Over the past couple of days, there have been multiple reports about the return of file sharing lawsuits to Canada, with fears that thousands of Canadians could be targeted. While it is possible that many will receive demand letters, it is important to note that recent changes to Canadian copyright law limit liability in non-commercial cases to a maximum of $5,000 for all infringement claims. In fact, it is likely that a court would award far less - perhaps as little as $100 - if the case went to court as even the government's FAQ on the recent copyright reform bill provided assurances that Canadians "will not face disproportionate penalties for minor infringements of copyright by distinguishing between commercial and non-commercial infringement."

    Bill C-11, the recently enacted copyright reform bill, featured several very good provisions including an expansion of fair dealing, a user generated content provision, new consumer protections, and a balanced approach to Internet provider liability. One of the most important changes to the law, however, was the creation of a cap on potential damages for non-commercial infringement. As I highlighted during debates on the bill, Canada is among a minority of countries that have any statutory damages at all for copyright infringement as most developed countries require rights holders to prove actual damages.



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    The Music Industry's Digital Reversal

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    Monday January 12, 2009
    My weekly technology law column (Toronto Star version, homepage version) opens by noting that Canadians focused on hockey success and economic doom-and-gloom over the past month may have missed a series of events that suggest a dramatic shift for the recording industry.  For much of the past decade, the industry has relied on three pillars to combat peer-to-peer file sharing - lawsuits, locks, and legislation.  

    The lawsuits, which began in 2003, resulted in suits against more than 35,000 alleged file sharers in the United States.  The locks, which refers to digital locks that seek to impose copy-controls on music files, was a requirement for online services such as iTunes before it was given the green light, while the lobbying for legislative reforms to support the use of copy-controls led Canada to introduce the failed Bill C-61.

    In a matter of weeks, the foundation of each of these pillars has either crumbled or shown serious signs of cracking.

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