Report Says Canadian DMCA To Include $500 Fine Per Download

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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