Facebook Copyright by Bernard Goldbach https://flic.kr/p/a5K9eE (CC BY 2.0)

Facebook Copyright by Bernard Goldbach https://flic.kr/p/a5K9eE (CC BY 2.0)


Supreme Court of Canada on Copyright Notices: Identification of IP Address “Not Conclusive of Guilt”

The initial emphasis on last week’s Supreme Court of Canada’s copyright notice decision has focused on how Internet providers can pass along the specific costs associated with subscriber disclosures beyond those required for the notice-and-notice system to rights holders. The ruling rightly restores the notice system back to its intended approach, but it is not the only takeaway with implications for the recent flurry of file sharing lawsuits. While there has been a huge number of claims filed in Canada (with some surprisingly large settlements), the Supreme Court acknowledged important limitations in notice claims, noting that merely being associated with an IP address is not conclusive of guilt.

The full quote from the majority:

It must be borne in mind that being associated with an IP address that is the subject of a notice under s. 41.26(1)(a) is not conclusive of guilt.  As I have explained, the person to whom an IP address belonged at the time of an alleged infringement may not be the same person who has shared copyrighted content online. It is also possible that an error on the part of a copyright owner would result in the incorrect identification of an IP address as having been the source of online copyright infringement. Requiring an ISP to identify by name and physical address the person to whom the pertinent IP address belonged would, therefore, not only alter the balance which Parliament struck in legislating the notice and notice regime, but do so to the detriment of the privacy interests of persons, including innocent persons, receiving notice.

The passage is critically important since it lends support to many notice recipients who maintain that they have been misidentified or the notice has been sent in error. While some may feel that they have little alternative but to settle, the Supreme Court’s language sends a reminder that IP address alone may be insufficient evidence to support a claim of copyright infringement. Those that fight back against overly aggressive notices may find the claims dropped. Alternatively, contesting a claim would require copyright owners to tender more evidence than just an allegation supported by an identifiable IP address.

Moreover, the finding reinforces the need for the government to act by stopping the inclusion of settlement demands within copyright notices. The system was never intended to be used to send legal claims and pressure recipients to settle unproven infringement allegations. Indeed, with the court recognizing the privacy interests at stake and that an IP address alone is not conclusive of guilt, the decision increases the pressure on government to address the inappropriate conduct by rights holders who are using the system to pressure thousands of Canadians into paying hundreds of dollars despite the obvious limitations associated with their claims.


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  2. That full quote from the majority has a potentially interesting implication.

    Can (i.e. spineless) ISPs be held liable (i.e. and sued) for violating the privacy of their customers resulting from turning over identifying information based solely on the claim of infringement by IP address?

    This might be the thing that makes spineless ISPs think twice about simply capitulating because it’s the easiest thing to do.

    Doesn’t the whole concept of billing for costs for having to find the identifying information for an IP-address-offender just go away if IP-address alone is not enough to furnish identifying information?

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  7. Shawn H Corey says:

    Question: When will false notice claim be considered infringement on copyright with the same penalties, both civil and criminal? If a false claim results in the removal of valid copyright material, then it is interference with the copyright’s holder to exploit their copyright and should be considered fraud.

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  9. IP address spoofing is easy. Leaving your wifi open for your guests and neighbours was the norm at one time, and is still common. (Though some, I’m sure, have trouble justifying sharing anything…) Our kids bring dozens of friends over through the week, they all use the wifi. Even the little pizza joints have wifi now. Everyone I know has a kodi box, no one thinks it’s illegal at all.

    If I’m going to be responsible for policing my kids’ friends (er..no!), then won’t businesses be responsible for policing their customers, too? (er…also, no!)

    So I think it’s time to admit that we can’t police the Internet because, as they said a generation ago, “on the Internet, no one knows your a dog.” The Internet should remain copyright exempt. Rip, mix and burn, as Apple once said.

    The arts have never really needed copyright. No one should have had to use a million dollar studio to record a song, or needed a hundred million dollars to tell a story. Copyright helps middlemen, and the art “industry”, but not the arts. True artistic inspiration and impetus cannot really be purchased with money.

    Let’s also stop pretending we can automatically filter out stories that are fake, or speech that is hateful, or infringement that is not exempt. Or that we can arrive at a consensus on what is indecent, or on, say, whether gambling is allowed. Regulating speech only helps the rich, the lawyers and the mainstream media.

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