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.
The provision also does nothing to address personal infringement that may occur when a user transfers a DVD to their computer or a copy-protected CD to their iPod. The bill states that:
Subsections (1.1) to (1.3) do not apply with respect to infringements that were made possible because the defendant circumvented or caused to be circumvented a technological measure that protected the work or other
subject-matter, within the meanings of the definitions “circumvent” and “technological measure” in section 41.
This limitations means that users face liability of up to $20,000 per infringement where they circumvent a DVD or copy-protected CD and make an unauthorized copy. The circumvention itself does not raise statutory damages, but the copy that follows does. If the goal is to limit liability for private infringement, surely it should also address situations where a user copies their store-bought CD or DVD. Even better, the government should take the opportunity to more clearly delineate between commercial piracy (which should carry significant damages) and non-commercial infringement (where actual damages should be proven).