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A blueprint for better copyright law

Imagine an Ontario government initiative that responded to rising concern over speeding on provincial highways by installing hundreds of automated radar guns to identify cars that failed to obey the speed limit. Rather than sending a speeding ticket to those caught by the system, however, the government instead sent a bailiff to confiscate the car keys so that the alleged speeding car could no longer be used.


Such a system would obviously be criticized for being unfair and unworkable. Opponents would note that for every serial speeder taken off the road, there would be many more people wrongly identified. Moreover, the system would unfairly capture innocent parties, such as a parent who loses the ability to use their car to go to work due to a momentary mistake by a teenage child.


While such as scenario may seem far-fetched, it is the offline equivalent of the Canadian Recording Industry Association's latest proposal in its battle against music file sharing on the information highway.


Since the emergence of Napster several years ago, the number of recording industry lawsuits have gradually escalated, catching ever-more people in the crossfire. What started with a handful of actions against online music and file sharing services has expanded to include thousands of suits against individual Internet users.


A core element of the recording industry's legal strategy has been the establishment of a "notice and takedown" system. Under notice and takedown, copyright holders are entitled to notify ISPs that one of their subscribers has posted copyright infringing content (the notice). Depending on the system, ISPs respond to the notice by either notifying the subscriber (who may voluntarily take down the content), taking down the content themselves, or awaiting a court order (the takedown). In return for taking action, ISPs qualify for a safe harbour from liability.


The United States implemented a notice and takedown system several years ago. Pressure has been mounting in Canada to follow suit, particularly since the Canadian Supreme Court recently referenced the need for notice and takedown rules to remove legal uncertainty over the obligations of ISPs in the face of the notification of infringing content.


Canada has moved slowly on this issue, however, due in large measure to concerns arising from the U.S. experience. Under the U.S. system, computer-generated notices have become the standard, with errors becoming the norm. For example, notices have been sent to take down a child's Harry Potter book report, a sound recording by a university professor mistakenly identified as a song by a well-known recording artist, and an archive of public-domain films.


In fact, one study of the U.S. experience found that some ISPs receive tens of thousands of notices every month with only a handful actually relating to materials found on their networks.


Moreover, notices have also been used to suppress free speech and criticism. Diebold, an electronic voting equipment make, used the system to attempt to remove company memos detailing problems with its e-voting machines, while the Church of Scientology has used it to remove Web sites critical of its activities.


While the U.S. system is bad, CRIA has recommended that Canada adopt a framework that is even worse. Richard Pfohl, CRIA's general counsel, recently lauded the U.S. system but urged Canada to go further by recommending the adoption of what is best described as a "notice and termination" approach. According to Pfohl, if an ISP permits a subscriber to use a peer-to-peer service and they receive a notification that the subscriber is offering copyrighted works for download, then "the ISP ought to kick that subscriber off the system."


CRIA's proposal raises several critical concerns.


First, the proposal appears to be an end-around the music industry's recent failed attempt to identify alleged file sharers in Canadian federal court. Under the CRIA proposal, there would be no need to tender evidence to a court, insufficient or otherwise, since an ISP would act as judge and jury by cutting off the subscriber without any due process.


Second, the proposal would undoubtedly leave many Canadians without access to critical Internet-based services such as obtaining health care information (which Statistics Canada recently reported stands as the most popular use of the Internet among Canadians), conducting online banking, or accessing e-government services.


Just as the U.S. experience has been riddled with errors, CRIA's notice and termination proposal would cut off Internet access for entire families despite questions about whether there is even grounds for a copyright infringement claim, in addition to doubts over whether the party responsible for the file sharing is the subscriber, a family friend who used the computer without permission, or perhaps a stranger who accessed the family's wireless Internet signal.


Canadian policy makers and parliamentarians should do two things in response to the growing clamour for a Canadian notice and takedown system. First, they should roundly reject the CRIA proposal as unfair and unworkable. Second, they should move aggressively to adopt a system that respects the rights of copyright holders, the privacy rights of users, the fairness of court review, and the need to appropriately limit the burden placed on ISPs.

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