The launch of the Canadian copyright notice system earlier this year raised serious concerns as Rightscorp, a U.S.-based anti-piracy company, sent notices that misstated Canadian law and demanded that users pay to settle claims. The misuse of the Canadian system was the result of the government’s failure to establish regulations prohibiting misleading content or the use of notice-and-notice to demand settlements. Despite more than a year of work on potential regulations – including possible costs to rights holders for sending notifications – Industry Minister James Moore abandoned the process, implementing the system with no costs, no limitations on notice content, no restrictions on settlement demands, and no sanctions for the inclusion of false or misleading information. The government’s backgrounder says that the law “sets clear rules on the content of these notices”, however, it does not restrict the ability for rights holders to include information that goes beyond the statutory minimum.
The furor over the Rightscorp notices died down in recent weeks, but now another U.S. anti-piracy firm is flooding the Canadian market with thousands of notices, all seeking payment for alleged infringements. CEG TEK, a well-known U.S. firm, is sending notices that reference Canadian copyright law, but use the notice-and-notice system to pressure recipients into paying large settlements. A blog reader sent along a sample notice posted below (TekSavvy has posted a similar one they received).
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The revelations that Rightscorp has been using the new copyright notice-and-notice system to force Internet providers to forward notifications with false copyright law information and demands for payment sparked considerable concern among many Canadian Internet users. In my post on the issue, I suggested two responses. First, the introduction of government regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information. Second, Internet service providers adding their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender.
While there has been no response from the government, some Canadian ISPs are providing their subscribers with much-needed context. For example, TechAeris has posted the message provided by Shaw Cablesystems, which states:
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Canada’s new copyright notice-and-notice system has been in place for less than a week, but rights holders are already exploiting a loophole to send demands for payment citing false legal information. Earlier this week, a Canadian ISP forwarded to me a sample notice it received from Rightscorp on behalf of BMG Rights Management. The notice, which is posted below with identifying information removed, must be forwarded to the subscriber or the ISP faces the possibility of statutory damages of between $5 – 10,000. Rightscorp announced that it was entering the Canadian market last year, so its participation in the notice-and-notice system is not a surprise. What is surprising is that the company has brought its model of issuing demands for payments to Canada by warning of U.S. damage awards and Internet termination in order to stoke fear among Canadians that they could face massive liability if they refuse to pay.
The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), personal music downloads may qualify as private copying and therefore be legal in Canada.
In addition to misstating Canadian law, the notice is instructive for what it does not say. While a recipient might fear a lawsuit with huge liability, there is very little likelihood of a lawsuit given that Rightscorp and BMG do not have the personal information of the subscriber. To obtain that information, they would need a court order, which can be a very expensive proposition. Moreover, this is merely an allegation that would need to be proven in court (assuming the rights holder is able to obtain a court order for the subscriber information).
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