One of the few good points in the expected Canadian DMCA is likely to be Industry Minister Jim Prentice's decision to stick with a notice-and-notice approach for ISP liability. I've described the system here. This is the same approach that was proposed in Bill C-60 and has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of reports on this new study that demonstrates again how notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement. While there will be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.
Why Notice-and-Notice Should Be Part of the Canadian DMCA
June 6, 2008
Tags: Copyright Canada / Copyright Microsite - About the Canadian DMCA / dmca / ISP / notice and notice / notice and takedown / prentice
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Episode 169: Alissa Centivany and Anthony Rosborough on Repairing Canada’s Right to Repair
June 5, 2023
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- The Draft Bill C-11 Policy Direction: Canadian Heritage Implicitly Admits What It Spent Months Denying
- Tough Talk, Empty Answers: How Heritage Minister Pablo Rodriguez is Propelling Canada’s News Sector Toward the Bill C-18 Cliff
- The Law Bytes Podcast, Episode 169: Alissa Centivany and Anthony Rosborough on Repairing Canada’s Right to Repair
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Law, Privacy and Surveillance in Canada in the Post-Snowden Era (University of Ottawa Press, 2015)
The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (University of Ottawa Press, 2013)
From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (Irwin Law, 2010)
In the Public Interest: The Future of Canadian Copyright Law (Irwin Law, 2005) .
In all of the discussion about this issue, I haven’t read or hear of anyone discussing a “prior to this date” exemption for downloaded and content shifted files, etc. Without this sort of protection, it would be entirely possible to scour hard drives and recover deleted files to prove that indeed, at one time there was infringing content on the drive. “Notice and Notice” won’t do any good if the rights holder decides that they are angry enough to force the ISP or individual to pay up for the infringement, depending upon where the files were stored (newsgroup files are stored on the ISP’s server, for instance).
I see this as being an issue for ISPs as well as home users, as when things are deleted in most cases they are still recoverable. As such, we need to determine where the liability end and what rights right holder have to remove hardware from a user to prove that infringement took place?
Is there a line drawn in the sand on this issue and if so, what does it look like and may I have permission to take a picture of it, please?
Improper infringement claims
Until now I payed little attention to the issue. However upon receiving an email the other day from my ISP, notifying me they were requested by a company in the States monitoring for the movie industry that my connection be terminated immediately based on an IP address, I had my eyes rudely opened. I immediately phoned my ISP asking what this was about, who said ignore it, they were just forwarding the notice but not to worry about it. Well then why forward it while asking to not be contacted in return, but telling me to deal with the monitoring company directly? Apart from thusly identifying myself to them.. how does this address the fact that I don’t download or upload movies, have never heard of the one they claimed I was making available, nor have I ever had what they call p2p software or connections to a program called bittorrent in my computer which they said I was using? Upon checking I had been using that particular IP address that night but the only three online activities at the time were checking the weather, an online chat through Google and browsing online books through Google’s service. To be fingered for fines or lawsuits in such a haphazard way and having to prove innocence over random false claims is a terrifying prospect. As a friend who fought in WW II recently said, he was disgusted how the freedoms so may died for were once again being taken away from us or worse yet used against us. I think for me the time has come to permanently disconnect myself from the digital age and return to saner days.
Disconnecting is Not an Option
Not with the bean-counters, tech-progress pushers and enviro-movement all pushing governmental processes online at the speeds we’ve all been seeing. You can’t file your bi-weekly UI reports via papermail anymore, for example. It’s phone, Net or your holding a disqualified claim.
If your comment was in regards to my personal choice to distance myself from the internet, I understand. However, so far our government is not threatening us with outrageous lawsuits if we miss an UI report. We are living in a new world and one that has the power to monitor and control our every move. This newest threat is but one more example of how we can be forced to comply to whatever the powers that be decide to dish out, even if it means profit for them through this new digital business venture of legalized extortion. Until there are safeguards in place which will prevent innocent and guilty alike based on hearsay from being rounded up and confined in the same concentration camp until the appropriate fine is paid or legal fees wipe one out, regardless of truth, I think I would feel safer avoiding the internet altogether. Each to their own.
Don’t feel too bad about the letter. They give those to printers to. Their p2p detection tech is horribly inaccurate. There is far too many innocent people getting falsely accused with no punishment. As for getting sued tell them to go for it, and make them look as stupid as they are in public.
cost of defending
One big problem with doing that is the cost of defending yourself. Even if you win and get some/all your legal costs reimbursed, you still will have lost a lot of time, lost your privacy, possibly your current or future job, etc. You’ll probably loose your computer equipment along with all your files for a good period of time (assuming you get it back in one piece) and you will really have protect yourself against a “fishing expedition” – its just too easy to make even accidental infringement even if you don’t intend to break the law. Then you also have to defend yourself against any normal operations you may do on a computer that “regular” people don’t commonly do – eg. running a defrag program, having privacy software, or (shock,horror) a secure deletion program installed.
And that is assuming you win. Just read some of the comments that the jurors have said. I won’t comment whether I feel shes guilty or not, but I am outraged against some of the comments made along the lines “she should have settled”, “wanted to send a message”, “Spoofing? We’re thinking, ‘Oh my God, you got to be kidding.'”