Soccer fans around the world are anxiously anticipating this summer's FIFA World Cup. FIFA's broadcast partner, Infront Sports and Media, is apparently looking ahead to the World Cup for a different reason. With the exclusive broadcast rights in hand, Infront's lawyers are sending pre-emptive notice and takedown notifications to Internet service providers. One Canadian ISP has received a letter from Baker & McKenzie, the Infront's Canadian counsel, in which the firm notes the potential for the posting of unauthorized clips or images from the games and demands:
"Should your service be used for the purpose of such unlawful activities we will alert you as a matter of urgency and trust you will assist in taking down any infringing material so you can avoid any joint liability for such infringements, as well as assisting us in identifying the infringers."
While the World Cup is an important sports event, is it really so important that its rights holders and their lawyers believe that Canadian law doesn't apply to them? At least three issues come to mind.
First, Canada does not have a notice and takedown system, but rather an informal notice and notice agreement that even rightsholders such as AOL/Time Warner believe is suitable. This system requires that ISPs only notify subscribers of allegations of infringement with the takedown only coming under court order. If this system is good enough for child pornography, surely it is good enough for a video clip of soccer game. Second, the veiled threat of joint liability is simply nonsense. There is no legal reason to believe that an intermediary would be held liable for the allegedly infringing actions of a subscriber where it declines a demand to takedown content absent a court order. Third, the request to assist in the identification of alleged infringers is particularly offensive, since runs completely counter to Canada's privacy legislation and the Federal Count of Appeal's BMG v. Doe decision that set out a clear roadmap for the disclosure of such personal information.
It is abusive demands such as these that give many Canadians reason for concern about overly aggressive rights holders who shoot first and aim later. Rather than a pre-emptive takedown notification, this situation seems to call for a pre-emptive privacy education from the Privacy Commissioner of Canada for Insight and its lawyers.