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.
