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Tuesday December 04, 2012 |
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.
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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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Tuesday March 06, 2012 |
The "enabler provision" has emerged as one of the major demands by
copyright lobby groups, who want to see significant expansion of the
current provision by including SOPA-style reforms that could target
sites such as Youtube. In fact, the music industry has gone even
further with demands
that could create liability risk for social networking sites, search
engines, blogging platforms, video sites, and many other websites
featuring third party contributions. Jason Kee of the Entertainment
Software Association of Canada argues
that unless the enabler provision is expanded "the provision is
useless." All of these demands come despite the fact that the industry
is using existing law to sue isoHunt
for millions of dollars under current copyright law.
In addition to expanding the provision, the same groups want to add
statutory damages to the mix (the music industry recently argued that
statutory damages should be unlimited).
Yet a June
2010 letter
to SOCAN from Canadian Heritage Minister James Moore's department
indicates it is opposed to the change since it stems from a lack of
understanding about how statutory damages work. The letter
states:
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Friday December 03, 2010 |
One of the more interesting exchanges during Wednesday's
C-32 Legislative Committee hearing involved questions on the bill's
reforms to statutory damages. The
bill proposes to establish a maximum statutory damages penalty of
$5,000 for infringement that the court considers to be
non-commercial. That contrasts with commercial infringement,
which carries a $20,000 per infringement maximum. Note that the
minimums are roughly the same - non-commercial infringement has a $100
minimum, while commercial infringement's minimum is $200.
Liberal MP Dan McTeague questioned the change, suggesting that it could
send the wrong message about infringement and be viewed as a licence to
steal. I disagreed with his position, pointing out that $5,000
was
still enormous cost for most Canadians and that it is potential
multi-million
dollar liability for non-commercial file sharing that sends a bad
message
about Canadian justice.
I also made the point that statutory damages are relatively rare on the
international scene, a point that I think is worth expanding
upon.
Perhaps because both Canada and the U.S. have statutory damages, many
MPs might be under the mistaken impression that most countries have
them. In fact, the opposite is the case.
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