[IP] Canadian Recording Industry Calls for Notice & Termination of File Sharers
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Dave Farber +1 412 726 9889
...... Forwarded Message .......
From: Michael Geist <mgeist@xxxxxxxxx>
To: dave@xxxxxxxxxx
Date: Mon, 09 Aug 2004 07:20:48 -0400
Subj: Canadian Recording Industry Calls for Notice & Termination of File
Sharers
Dave,
As a follow-up to your recent Disney and RIAA postings, my Toronto
Star column today may be of interest. It focuses on the Canadian
Recording Industry Association's call for what is effectively a
notice and termination approach to removing allegedly copyright
infringing material. CRIA's counsel told a parliamentary committee
that once an ISP receives notification that a subscriber is offering
copyrighted works for download, the ISP "ought to kick that
subscriber off the system." The approach would be the most radical
worldwide as the proposed removal would presumably come without a
court hearing or other due process. Given that CRIA lost its file
sharing suit in Canada earlier this year, this would appear to be an
end-around the court system by attempting to force ISPs to terminate
subscriber service based on a mere allegation of activity that may or
may not constitute copyright infringement.
Since Canada has yet to adopt a notice and takedown system, the
column proposes a four step procedure that respects the rights of
copyright holders, the privacy rights of users, the fairness of court
review, and the need to appropriately limit the burden placed on ISPs.
Column at <http://geistnoticeandtermination.notlong.com/>.
MG
A blueprint for better, and fairer, copyright law
MICHAEL GEIST
LAW BYTES
Toronto Star
Imagine an Ontario government initiative that responded to rising
concern over speeding on provincial highways by installing hundreds
of automated radar guns to identify cars that failed to obey the
speed limit. Rather than sending a speeding ticket to those caught by
the system, however, the government instead sent a bailiff to
confiscate the car keys so that the alleged speeding car could no
longer be used.
Such a system would obviously be criticized for being unfair and
unworkable. Opponents would note that for every serial speeder taken
off the road, there would be many more people wrongly identified.
Moreover, the system would unfairly capture innocent parties, such as
a parent who loses the ability to use their car to go to work due to
a momentary mistake by a teenage child.
While such as scenario may seem far-fetched, it is the offline
equivalent of the Canadian Recording Industry Association's latest
proposal in its battle against music file sharing on the information
highway.
Since the emergence of Napster several years ago, the number of
recording industry lawsuits have gradually escalated, catching
ever-more people in the crossfire. What started with a handful of
actions against online music and file sharing services has expanded
to include thousands of suits against individual Internet users.
A core element of the recording industry's legal strategy has been
the establishment of a "notice and takedown" system. Under notice and
takedown, copyright holders are entitled to notify ISPs that one of
their subscribers has posted copyright infringing content (the
notice). Depending on the system, ISPs respond to the notice by
either notifying the subscriber (who may voluntarily take down the
content), taking down the content themselves, or awaiting a court
order (the takedown). In return for taking action, ISPs qualify for a
safe harbour from liability.
The United States implemented a notice and takedown system several
years ago. Pressure has been mounting in Canada to follow suit,
particularly since the Canadian Supreme Court recently referenced the
need for notice and takedown rules to remove legal uncertainty over
the obligations of ISPs in the face of the notification of infringing
content.
Canada has moved slowly on this issue, however, due in large measure
to concerns arising from the U.S. experience. Under the U.S. system,
computer-generated notices have become the standard, with errors
becoming the norm. For example, notices have been sent to take down a
child's Harry Potter book report, a sound recording by a university
professor mistakenly identified as a song by a well-known recording
artist, and an archive of public-domain films.
In fact, one study of the U.S. experience found that some ISPs
receive tens of thousands of notices every month with only a handful
actually relating to materials found on their networks.
Moreover, notices have also been used to suppress free speech and
criticism. Diebold, an electronic voting equipment make, used the
system to attempt to remove company memos detailing problems with its
e-voting machines, while the Church of Scientology has used it to
remove Web sites critical of its activities.
While the U.S. system is bad, CRIA has recommended that Canada adopt
a framework that is even worse. Richard Pfohl, CRIA's general
counsel, recently lauded the U.S. system but urged Canada to go
further by recommending the adoption of what is best described as a
"notice and termination" approach. According to Pfohl, if an ISP
permits a subscriber to use a peer-to-peer service and they receive a
notification that the subscriber is offering copyrighted works for
download, then "the ISP ought to kick that subscriber off the system."
CRIA's proposal raises several critical concerns.
First, the proposal appears to be an end-around the music industry's
recent failed attempt to identify alleged file sharers in Canadian
federal court. Under the CRIA proposal, there would be no need to
tender evidence to a court, insufficient or otherwise, since an ISP
would act as judge and jury by cutting off the subscriber without any
due process.
Second, the proposal would undoubtedly leave many Canadians without
access to critical Internet-based services such as obtaining health
care information (which Statistics Canada recently reported stands as
the most popular use of the Internet among Canadians), conducting
online banking, or accessing e-government services.
Just as the U.S. experience has been riddled with errors, CRIA's
notice and termination proposal would cut off Internet access for
entire families despite questions about whether there is even grounds
for a copyright infringement claim, in addition to doubts over
whether the party responsible for the file sharing is the subscriber,
a family friend who used the computer without permission, or perhaps
a stranger who accessed the family's wireless Internet signal.
Canadian policy makers and parliamentarians should do two things in
response to the growing clamour for a Canadian notice and takedown
system. First, they should roundly reject the CRIA proposal as unfair
and unworkable. Second, they should move aggressively to adopt a
system that respects the rights of copyright holders, the privacy
rights of users, the fairness of court review, and the need to
appropriately limit the burden placed on ISPs.
Such a system would be characterized by a four-step process. First, a
copyright holder, having exercised appropriate due diligence in
confirming an alleged infringement, sends a notice to the ISP.
Second, the ISP promptly notifies its customer of the allegation and
leaves it to the customer to voluntarily take down the content.
Third, if the customer refuses to take down the content, the
copyright holder applies to a Canadian court to order its removal.
The ISP serves as a conduit to ensure that the subscriber is aware of
the court proceeding and can challenge if desired. Fourth, if the
court issues an order, the ISP responds to the order by taking down
the content.
This notice and takedown approach would provide copyright holders
with an efficient mechanism for removing infringing content. It would
also ensure respect for subscriber privacy and free speech rights,
while granting ISPs limited liability.
For the two new Canadian ministers responsible for copyright policy,
the notice and takedown policy issues represents a top priority given
the desire for greater legal certainty from all Internet participants.
Liza Frulla, the new Canadian Heritage minister, participated in the
much-maligned Canadian Heritage committee copyright report released
last spring. That report addressed the notice and takedown issue,
rejecting the CRIA proposal by emphasizing the need for a new policy
that respects the Canadian Charter of Rights and Freedoms, a standard
that a notice and termination policy surely does not meet.
David Emerson, the new Industry Minister, faces a choice between
CRIA, an industry association whose members do not even represent the
majority of Canadian recording artists, and the millions of Canadians
who rely on the Web for communication and access to health
information, electronic banking, and e-government services.
While copyright policy often presents a difficult balance between the
interests of users and creators, on this particular policy issue, the
choice is clear.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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