Love Letters from the Copyright Modernization Act
10:09** this is a follow-up post from my talk at B-Sides Cape Breton where I discussed the practical impacts of the Notice-and-Notice Scheme for Copyright infringement in Canada - the complete slide-deck is available here **
B-Sides Cape Breton was fantastic. So many good questions. So... much... sass.
Thank you for having me, B-Sides CB. Also... B-Sides attendees, I made you a gift.
Down to business...
To frame the B-Sides CB talk I asked a simple question:
The Copyright Modernization Act put in place a Notice-and-Notice system allowing Copyright owners to contact an infringing party via their Internet Service Provider (ISP).
Do I have to respond to Copyright infringement notice from my ISP?
First - a crash course in Copyright.
Taylor Swift, makes the song “Shake it Off” (whether the song is any good or not is irrelevant - music criticism is not my forte).
By using her skill and judgment to make the song, Taylor Swift has created the work. Without having to register or do any voodoo, Ms. Swift holds the copyright in the work. This means she has the exclusive license to sell, licence, copy, and distribute the work. The Copyright Act gives Taylor Swift this right for her lifetime + 50 years. That's a long time.
Why so long?
This is where everything gets a little philosophical. Everybody has to eat. In order for Taylor Swift to eat so she can create music, she needs to be able to turn that music into food (money).
I turn my skill into money by advising people and writing angry letters; Taylor turns her skill into money by being a talented musician / all-round gorgeous gal.
The argument is that Taylor Swift needs the incentive of copyright protection - the force of law providing her with exclusive rights to produce, reproduce, sell, licence what she creates. The story goes, if she didn't have this protection, she'd be less able/willing to create her music... and then the world would be without Taylor Swift.
Imagine that world.
Maybe it’s because I’ve seen too many zombie movies, but I always like to identify a patient zero when it comes to trends. Voltage Pictures owns the rights in “The Hurt Locker” - and they’ve been very aggressive in enforcing their rights in Canada - because this movie was so popular its the subject of many infringement claims.
Voltage is not only relentless - they’re also the early bird. As soon as the Copyright Modernization Act became law they were chomping at the bit to use it to get at users.
As part of protecting their copyrighted works, many artists & record companies, Like Voltage and Taylor Swift, have shaped the conversation using the rhetoric of battle - creating a kind of siege mentality.
They’re protecting their stuff - you’re trying to bust in to steal their stuff.
Some of the ways in which they record companies and their lobbyists in various countries frame this discussion are not so subtle.
According to them, downloading a song is equivalent to burning and pillaging.
Those who perpetrate copyright infringement have done little to combat this rhetoric. In fact, they adopt it - like the hooligans they are.
As a brief aside, piracy as it relates to copyright is not a legal term. It appears no where in the Copyright Act.
It’s not piracy - it’s infringement.
It’s not pillaging or burning - it’s copying.
Let’s talk about the US.
An interesting bit of trivia is that Canada is a different country than the US. We have different laws and everything. For example: THIS (C) is not part of Canadian law.
We also have an entirely different system for dealing with copyright infringement online. In the US, they’ve adopted a system of notice and takedown. In this system, a copyright owner notifies YouTube (for example) that someone is infringing their copyright. YouTube has x number of days to remove the content; YouTube is not liable for the infringement until the time expires.
In Canada, we’ve adopted a different system.
The Notice-and-Notice Scheme became part of our laws via the Copyright Modernization Act on January 2, 2015. The system relies on ISPs to notify the infringing party of their infringement, rather than requiring content takedowns. The goal of the system was to balance the interests of copyright holders, privacy rights of Internet users, and legal obligations of Internet providers. The Notice-and-Notice system was also meant to be educational and raise awareness about what copyright infringement is.
ISPs like this system because as long as they comply they are protected (unlike in the US where they can be held liable).
How does it work?
Taylor Swift makes the song. The song is ripped and uploaded onto Third Party torrenting site or other service. The song is downloaded by YOU, the pirate. Taylor Swift (because she is all knowing) knows the IP address that downloaded the song for the torrenting site, but not the identity attached to that IP address. The only entity who can connect the two is the ISP.
Rather than have the ISP disclose the information directly to Taylor Swift, the Notice-and-Notice Scheme requires the ISP to send a love letter from Taylor Swift to you threatening action for copyright infringement.
Taylor Swift knows someone using your IP address downloaded “Shake it Off”, but Taylor Swift doesn’t know YOU downloaded “Shake it Off”.
The ISP does not disclose your information to Taylor Swift as part of the Notice-and-Notice process.
Under the notice-and-notice system, copyright owners are entitled to send infringement notices to Internet providers, who are legally required to forward the notifications to their subscribers.
The notices must include details on the sender, the copyright works and the alleged infringement.
If the Internet provider fails to forward the notification, it must explain why or face the prospect of damages that run as high as $10,000.
Internet providers must also retain information on the subscriber for six months (or 12 months if court proceedings are launched).
What's in these emails?
I can’t show you the notices I’ve reviewed for clients, but here's the gist of what they contain:
They allege infringement (downloading/copying music they own)
They threaten to sue you for $150,000
They identify the song
They offer to settle for $20 per infringement
They tell you litigation is expensive
They give you a website where you can view the settlement and pay it.
They tell you all the information they have on you.
What do you do when you get one of these emails?
Let’s do a little case study.
You’re a BellAliant customer. They’re your ISP. You received an email from BellAliant containing a notice forwarded from a representative of a copyright owner alleging various instances of copyright infringement associated with your download of a Taylor Swift song, “Shake it Off”. The letter says you downloaded “Shake it Off” from your IP Address; specifically, these notices alleged you illegally copied the song using the peer-to-peer sharing service, Pirate Bay. The emails say you are in violation of the “Canada Copyright Act” and that you may be liable for civil sanctions up to $5,000. The emails provide a link to a website (www.copyrightsettlements.com) where you can access their settlement proposal and pay the settlement online;
Do you simply “Shake it Off”?
Sorry, I couldn’t help myself.
This is the real question. After the notice-and-notice system came into effect the internet lit up with the kind of advice the internet loves to give…
This is a graphical representation of the internet wisdom.
Simply put, the internet wisdom was that you should not respond because there is no way for Taylor Swift to connect your IP Address with YOU. As it always the case with internet advice, this advice needs some unpacking.
All Taylor Swift has is: an IP address, the name of the song, the date it was downloaded, and the service it was downloaded from. Also, as Michael Geist has pointed out in his various blog posts on this topic, these are unproven allegations of infringement. Taylor Swift would have to be able to connect YOU with your computer chair - meaning she’d have to prove it was actually you who downloaded the song.
BellAliant is a private company governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). BellAliant can’t disclose personal information without your consent - unless they are required to do so by a judge, a government institution, or other law.
Taylor Swift is not a government institution.
She hasn’t commenced an action against you or filed any criminal charges relating to the infringement.
So, Taylor Swift has two ways of obtaining the information she doesn’t know - your identity.
(1) She could apply to a court to force the ISP to release the information; OR
(2) You could give it to her.
Taylor Swift can apply to the court to force Bell Aliant to release your information if they’re not satisfied with simply sending a notice. The court can require the ISP to reveal the identity of the subscriber. Taylor Swift can then send another notice directly to you offering to settle or they can commence an action against you - or both. Canadian courts have established strict rules and limitations around such notices.
Also, if the court finds that Taylor Swift had an “improper motive” (ie she was just after the settlement money and not interested in actually enforcing her copyright) the court could deny her application to have Bell Aliant disclose your information.
Q: What about #2 - who would ever give their information to Taylor Swift?
A: Lots of people.
This is the website provided in the notice.
When you go to this website you can login. To login you have to enter in a number they provide in the notice forwarded by your ISP. You could just be logging in because you’re curious about their settlement offer. By logging in you surrender the anonymity provided by the Notice-and-Notice scheme.You connect your alleged infringement with whatever information you enter in to discover the settlement offer.
It’s clever, and kind of evil.
For example, if you logged on to the settlement website and provided your information in order to obtain more information on the settlement or if you attempted to contact the copyright owner in order to dispute the claim the copyright owner would then have sufficient information to bring a claim against you.
In helping clients figure out how to deal with these letters I have not yet signed into these settlement websites - I don’t know the information they ask and I assume it varies, but I imagine they at least ask for your name, address, and email address. This would be enough to bring a claim against you. Even if you look at the settlement amount and think “forget it!” they have your information now - that can’t be undone.
How to respond?
In most of the cases I’ve dealt with regarding these letters, I recommend that people not respond to these emails in any way. This advice would be different, depending on the level of infringement.
If you don’t respond the copyright owner has no practical method of finding out who you are and carrying through on the threats contained within the email. In order to bring an action against you, the copyright owner would need to obtain a court order - the legal costs of doing so are far beyond any damages they would receive (there’s a $5,000 cap on damages for non-commercial infringement - but they can go outside the copyright act and seek regular damages which could be higher). This is assuming they could establish you infringed their copyright. In other words, these emails are most likely an empty threat.
What's wrong with this picture?
It turns out that many copyright owners viewed the new system as an opportunity to extract money from users. This has been called the piracy-into-profit business model.
These letters threaten the maximum penalty of $5,000 which is actually reserved for multiple instances of proven infringement and also threaten damages beyond the $5,000 cap that they likely cannot prove. Also, many copyright owners sent a flurry of notices to ISPs - these notices were often incorrect and misstated the law and the potential damages and jeopardy users were facing.
The notices began to take on the character of spam, rather than a legitimate threat. But people were still frightened by the prospect of litigation and public exposure.
Which leads me to my next question…
What about porn?
Downloading “Shake it Off” is pretty innocuous. It would perhaps be embarrassing if your colleagues learned of your secret love for Taylor Swift, but most likely not earth shattering.
What if you received one of these notices after downloading pornography?
If you downloaded porn and receive one of these notice letters in your email inbox the implications are different. Suddenly someone is threatening to expose your intensely personal sexual desires to the rigours of litigation and the public eye.
That’s a frightening prospect for most people.
Many of these letters come from rights holders who produce pornography. These rights holders are prolific users of the notice-and-notice scheme, some more than others. They’ve learned that this is an opportunity to kill two birds with one stone.
They protect their exclusive right to reproduce the work and when somebody does, inevitably, copy or download their work without permission they can threaten legal action and extract money from them.
It’s not a small amount of money, either.
The settlement amounts typically run between $20 and $500. The price point is carefully crafted: just small enough that the average person can afford it - just small enough that they’re unlikely to see a lawyer about it. Also, I’ll point out that most people with an average to healthy credit rating will have a $1,000 daily limit on their credit card - which is the payment method used on the settlement websites. How convenient.
In drafting the Copyright Modernization Act the government neglected to do one thing - they never said what can and cannot go in these notices.
There has never been a maximum or minimum settlement amount set. Remember these notices are forwarded from the copyright owner to the user. There are no meaningful restrictions on the content.
On the surface this doesn’t appear to pose a problem. In fact, settlement demands in other types of civil litigation are not governed by any specific form or content rules. But Notice-and-Notice letters go out to the general public on a massive, institutional scale to people who are not represented by lawyer. Quite simply, the Notice-and-Notice scheme has created a vehicle by which people, mostly south of the border, extract money from frightened internet users.
Some ISPs have taken it upon themselves to deal with the situation and help their customers. TekSavvy is an Ontario based ISP; they decided to take it upon themselves to fill in the gaps in these letters and address their customers’ concerns. Tek Savvy began attaching letters on top of the Notice-and-Notice letters. The TekSavvy letter provides the following information:
- TekSavvy is legally required to forward notice
- The copyright owner does not know identity of the user
- TekSavvy won’t provide the user's information without a court order
- TekSavvy can’t verify contents or sender (i.e. this could be dubious/sketchy)
- The Notice-and-Notice letter is NOT a legal ruling
- TekSavvy must retain records associated with the letter for at least 6 months
- Links to the Copyright Act and other laws
- Links to TekSavvy's privacy policy
THIS is the kind of behaviour I’d like to see from BellAliant - even though its not required by law.
Which leads me to how I propose to fix this problem.
Look. We all like free stuff. We all probably think copyright protection for the life of the artist +50 years is a bit much. I hate to break it to you - even if the term of copyright protection is dramatically reduced, you're still going to get in trouble with Taylor Swift for downloading "Shake it Off". Girl's gotta eat.
The Notice-and-Notice scheme, when compared with the system in the US, is the lesser of two evils. It's likely here to stay.
I'm a reasonable person. Here's my reasonable solution:
Tek Savvy + Form Letter
The Notice-and-Notice scheme should be changed to restrict the content of the notice letters and ISPs should be required to educate users on the implications of the notice letters.
Check this out:
Letter #1 - Education Letter from ISP
The ISP letter provides the following information:
- ISP is legally required to forward notice
- The copyright owner does not know identity of the user
- ISP won’t provide the user's information without a court order
- ISP can’t verify contents or sender (i.e. this could be dubious/sketchy)
- The Notice-and-Notice letter is NOT a legal ruling
- ISP must retain records associated with the letter for at least 6 months
- Links to the Copyright Act and other laws
- Links to ISP's privacy policy
Letter #2 - Love Letter from Copyright Owner
The notice letter from the copyright owner should only contain the following:
- Identify the IP address associated with the infringement
- Identify the work (song/movie)
- When the work was downloaded
- Through which medium it was downloaded (Pirate Bay)
- Identify the owner of the copyright (rights holder)
Letter #2 includes NO mention of penalties or settlement money. This should be explained by the ISP, if at all. The notice should be prohibited from containing any third party collection system - like copyrightsettlements.com. It should truly be a notice - and not offer to settle.
Will this remove the notice-and-notice system’s teeth?
Absolutely.
BUT removing its teeth is better than allowing a law and a system that opens the door for extortion to continue.
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