The Canadian Internet community has been buzzing for the past week over reports that a Montreal-based company has captured data on one million Canadians who it says have engaged in unauthorized file sharing. While that represents a relatively small percentage of Internet users in Canada, the possibility of hundreds of thousands of lawsuits over alleged copyright infringement would be unprecedented and raise a host of legal and policy issues.
My weekly technology law column (Toronto Star version, homepage version) notes the prospect of mass lawsuits will be of particular interest to the federal government, which just completed a major round of copyright reforms. The new copyright bill established a cap on damages that was explicitly designed to dissuade would-be litigants from targeting individuals. In fact, during hearings into the copyright reform bill, Members of Parliament were given assurances that the industry had no desire to launch file sharing lawsuits.
Read more ›
Over the past couple of days, there have been multiple reports about the return of file sharing lawsuits to Canada, with fears that thousands of Canadians could be targeted. While it is possible that many will receive demand letters, it is important to note that recent changes to Canadian copyright law limit liability in non-commercial cases to a maximum of $5,000 for all infringement claims. In fact, it is likely that a court would award far less – perhaps as little as $100 – if the case went to court as even the government’s FAQ on the recent copyright reform bill provided assurances that Canadians “will not face disproportionate penalties for minor infringements of copyright by distinguishing between commercial and non-commercial infringement.”
Bill C-11, the recently enacted copyright reform bill, featured several very good provisions including an expansion of fair dealing, a user generated content provision, new consumer protections, and a balanced approach to Internet provider liability. One of the most important changes to the law, however, was the creation of a cap on potential damages for non-commercial infringement. As I highlighted during debates on the bill, Canada is among a minority of countries that have any statutory damages at all for copyright infringement as most developed countries require rights holders to prove actual damages.
Read more ›
The “enabler provision” has emerged as one of the major demands by copyright lobby groups, who want to see significant expansion of the current provision by including SOPA-style reforms that could target sites such as Youtube. In fact, the music industry has gone even further with demands
that could create liability risk for social networking sites, search engines, blogging platforms, video sites, and many other websites featuring third party contributions. Jason Kee of the Entertainment Software Association of Canada argues
that unless the enabler provision is expanded “the provision is useless.” All of these demands come despite the fact that the industry is using existing law to sue isoHunt
for millions of dollars under current copyright law.
In addition to expanding the provision, the same groups want to add statutory damages to the mix (the music industry recently argued that statutory damages should be unlimited). Yet a June 2010 letter to SOCAN from Canadian Heritage Minister James Moore’s department indicates it is opposed to the change since it stems from a lack of understanding about how statutory damages work. The letter states:
Read more ›
One of the more interesting exchanges during Wednesday’s C-32 Legislative Committee hearing
involved questions on the bill’s reforms to statutory damages. The bill proposes to establish a maximum statutory damages penalty of $5,000 for infringement that the court considers to be non-commercial. That contrasts with commercial infringement, which carries a $20,000 per infringement maximum. Note that the minimums are roughly the same – non-commercial infringement has a $100 minimum, while commercial infringement’s minimum is $200.
Liberal MP Dan McTeague questioned the change, suggesting that it could send the wrong message about infringement and be viewed as a licence to steal. I disagreed with his position, pointing out that $5,000 was still enormous cost for most Canadians and that it is potential multi-million dollar liability for non-commercial file sharing that sends a bad message about Canadian justice.
I also made the point that statutory damages are relatively rare on the international scene, a point that I think is worth expanding upon. Perhaps because both Canada and the U.S. have statutory damages, many MPs might be under the mistaken impression that most countries have them. In fact, the opposite is the case.
Read more ›