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    61 Reforms to C-61, Day 59: Statutory Damages Reform - Removes Court Discretion For Reduced Damages

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    Thursday September 11, 2008
    While the new statutory damages provision may create a ceiling of $500 in damages for certain infringements, it also creates a minimum that is higher than the current statute.  The drafting is complex, but the change is as follows:

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    61 Reforms to C-61, Day 58: Statutory Damages Reform - What It Doesn't Cover

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    Wednesday September 10, 2008
    The problems associated with the statutory damages reform extend beyond the questions it raises.  The provision is presumably a response to the over 30,000 file sharing lawsuits in the United States which each bring the prospect of millions in liability.  Politically, the image of that kind of liability for Canadians would not sell well on the campaign trail.  Yet notwithstanding the intent, the current provision does very little to address the prospect of enormous liability for all sorts of activities.

    The new provision would likely reduce liability for downloading (though downloading of sound recordings is already arguably permitted due to the private copying levy), however, it certainly does not address uploading or the making available of content on file sharing networks without authorization.  This means that BitTorrent users - who simultaneously upload and download - will still face the possible liability of $20,000 per infringement.  Similarly, uploading a copyrighted work to YouTube raises the same potential liability. 

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    61 Reforms to C-61, Day 57: Statutory Damages Reform - Uncertainty

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    Tuesday September 09, 2008
    Reforms to the statutory damages provisions formed a big part of the government's communication strategy for Bill C-61.  Although scooped by the National Post, Industry Minister Jim Prentice emphasized the introduction of amendments to the statutory damages provisions that purportedly create limits for damages that arise from "private purposes" infringement.  The provision has proven unpopular for both sides of the copyright debate with rights holders concerned that it will not create a disincentive to infringing activities, while user groups fear that it won't apply to liability for everyday activities. The provision states:

    If a copyright owner has made an election under subsection (1), a defendant who is an individual is liable for statutory damages of $500 in respect of all the defendant’s infringements that were done for the defendant’s
    private purposes and that are involved in the proceedings.

    Moreover, a follow-up provision states:

    If a copyright owner has made an election under subsection (1) in respect of a defendant referred to in subsection (1.1), no other copyright owner may elect statutory damages in respect of that defendant for the defendant’s infringements that were done for the defendant’s private purposes before the institution of the proceedings in which the election was made.

    Tomorrow I will discuss why these provisions are not good enough.  For now, it is worth noting how much uncertainty they generate.  What is the meaning of "private purpose" (it surprisingly is not defined in the bill)?   Does the bill really mean that the first copyright owner to sue has the shot at $500, while all other copyright owners are blocked from filing suit?  Alternatively, do "all the defendant's infringements" refer only to the infringements for a particular work (ie. there are frequently multiple copyright holders for a single song) and file sharers can be still be sued for each individual download?  The uncertainty associated with the statutory damages reforms leave the sense of a hastily included provision at Prentice's request.  All sides in the copyright debate require greater clarification to judge the changes.
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    Report Says Canadian DMCA To Include $500 Fine Per Download

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    Tuesday June 03, 2008
    The National Post reports that the Canadian DMCA, which may be introduced tomorrow, will include a "personal use download" fine of $500.  The front page story indicates that the fine (presumably a new form of statutory damage award) could be awarded on a per infringement basis, leading the possibility of hundreds of thousands of dollars in liability for file sharing.  This provision has been rumoured for some time and may be designed to reduce the maximum possible awards, since the current statutory damages provision provides for damage awards of up to $20,000 per infringement. 

    Some sources say that it comes as a result of Prentice's concern that the Conservatives could be tied to huge damage awards against teenagers for peer-to-peer file sharing. If that is indeed the case, it is not clear how this provision will solve that concern.  While there are still many questions about this provision (does it target downloading or uploading? does it exempt sound recordings covered by the private copying levy?  is the $500 a set amount or a maximum? is it per infringement or cover all activity?  does it require actual evidence that files made available are downloaded?), consider a case involving 1000 song files, not an unusually high number.  The "retail" value of those files is roughly $1000, yet on a per infringement basis the Prentice proposal could lead to a damage award of $500,000. Even small scale cases would lead to huge awards - 50 songs could lead to a $25,000 fine.  Ironically, the prospect of huge damage awards comes as Canadian musicians and songwriters have both rejected lawsuits against individuals.  If Prentice hopes that the provision reduces the concern associated with file sharing lawsuits, this move may actually have the opposite effect.

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