Internet users who download and share copyrighted content are prone to being tracked.
If a copyright owner or its agents see such transfers, it’s possible they’ll follow this up to prevent further infringement, as is their right under the law in most major jurisdictions.
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In Canada this is also the case. Under the country’s ‘notice-and-notice‘ regime, copyright holders are granted permission to send complaints to users’ ISPs, who are then required to forward them to their customers.
However, after abuse by some copyright holders, last year the government stepped in with new rules. Such notices can no longer contain offers to pay cash to make supposed lawsuits go away, via an embedded hyperlink or other means. Neither can they demand a user’s personal details.
Unfortunately the new rules – as predicted – are being abused by companies who feel the law doesn’t apply to them.
As reported by TF earlier this month, anti-piracy outfit Digital Millennium Forensics (a Canada-based company), in conjunction with Elevation Pictures, is continuing to send notices that breach all of the rules, especially the demands for cash settlement.
Since the publication of our article, TF has received numerous additional copies of notices sent to even more customers of Eastlink, the ISP featured in the piece. The government says that ISPs don’t have to pass abusive notices on but Eastlink told us they don’t have the capability to filter them out, since there are so many of them.
Since then, the flow has continued. TorrentFreak has received even more copies of abusive notices sent by Digital Millennium Forensics and forwarded by other ISPs. They include Shaw, one of Canada’s most prominent providers, through to Xplornet, the country’s “leading supplier” of rural high-speed Internet.
In Shaw’s emails to customers, the company acknowledges that “a notice does not necessarily mean that you have in fact infringed copyright or that you will be sued for copyright infringement”, adding that it is “unaware of the full details and merit of the infringement claim.” It also adds the following important text:
The Notice and Notice regime does not impose any obligation on an internet user who receives a notice of alleged infringement to do anything or to contact the copyright owner or its representative who is alleging infringement. More particularly, there is no legal obligation to make any settlement payment requested by a copyright owner. Such settlement proposals are sometimes included in a notice.
While this is perfectly accurate information, the company still forwards abusive notices to its customers when the law does not require it to do so. The same can be said of both Eastlink and Xplornet, with the latter noting the following:
In accordance with section 41.26(1)(a) of the Copyright Act, an Internet Service Provider (ISP) is required to forward any notice received from the copyright holder in a work (such as music, videos, books or games) alleging infringement of that work in connection with the Internet or other digital networks. As a result, we are forwarding to you the attached notification related to your account.
We are unaware of the details or merits of this infringement claim. If you have questions concerning this matter, please contact the copyright holder directly using the contact information in the attached notice.
This statement is problematic. While 41.26(1)(a) does indeed require an ISP to forward a notice, the notice must also comply with 41.25(2) and (3) to be valid – and parts 3(a) and 3(c) prohibit notices that include settlement demands or links to the same.
Furthermore, part 3(b) also prohibits demands for “personal information” (this is because the government wants to protect consumers) yet the advice from Xplornet is for customers with questions to contact the sender of the already abusive notice in person. This is not contrary to the law but does raise more problems.
While the ISP is correct in noting that it can’t help with the details of the complaint, subscribers who contact the anti-piracy company directly will invariably give up their anonymity and with claims like this, that rarely turns out well. The law is clear – consumers do not have to respond in any way to these notices.
Unfortunately, Xplornet did not respond to TorrentFreak’s request for comment. Shaw Communications did, however, and a spokesperson indicated that it’s aware of the issue and is calling for measures against senders of abusive notices.
“Unfortunately, some rightsholders and their representatives may continue to disregard the requirements of the notice-and-notice regime. Shaw makes it clear to our customers that they are not obligated to comply with settlement demands,” Shaw said in its response.
“At the same time, we are urging the introduction of measures in the Copyright Act to end this practice – such as monetary penalties applicable to rightsholders who issue notices that include settlement demands or other prohibited content.”
A deterrent is apparently necessary in this case since it seems clear that companies like Digital Millennium Forensics and Elevation Pictures have little respect for the new rules. Not to mention that ISPs don’t appear to have any choice but to keep sending abusive notices to their customers.
TekSavvy, an ISP with a reputation for standing up for its customers, told TF that the problem is so big and the potential liabilities so huge, ISPs are terrified to intervene in the notice-sending process.
The company says that it faces similar issues to those that have been highlighted in Europe recently – how is it possible to deploy copyright filters 100% accurately?
“TekSavvy receives hundreds of thousands of notices from scores of senders in dozens of formats that change frequently. In order to comply with the Notice and Notice obligations, ISPs have had to develop automated tools that can assess whether each notice is compliant before forwarding it, with potentially huge liability if we do not forward compliant notices,” a spokesperson said.
“Notice forwarding is an expensive and difficult service TekSavvy provides to rightsholders at no cost, and for which we are expected to provide a 100% service level. This has created a problem in Canada similar to the concerns we have constantly heard over Article 13 (now 17) in the EU.
“The obligation to filter out noncompliant notices amounts to a requirement that ISPs have perfect algorithms, but there is no standard right now that any algorithm could work from,” TekSavvy added.
Professor Michael Geist, Canada Research Chair in Internet and E-commerce Law, agrees that there are issues with the system.
“The problem is that the government’s approach does not penalize sending settlement notices via this system. Instead, it merely states that ISPs are not obligated to send such notices,” Geist told TF.
“However, given that ISPs are still required to send compliant notices under threat of penalty, many ISPs will send all notices because it is too difficult to manually distinguish between compliant and non-compliant notices.”
Like the ISPs, Geist says there are potential solutions, such as the standardization of notices or establishing penalties for sending non-compliant notices, as suggested by Shaw. As things stand, however, things are likely to continue as they are.
“There is real concern that rights holders will continue to send settlement demands knowing that many will still be passed along,” Geist added.
There is hope, however. Canada is currently working on a Statutory Review of the Copyright Act, with ISPs such as Shaw, Bell, and Rogers – supported by Google – calling for (among other things) the standardization of notices.
“The Government should use its existing authority to enact regulations requiring that notices be submitted electronically in a form that is based on the ACNS 2.0. Mandating the use of these standards will eliminate the risk of ISPs forwarding non-compliant notices,” their umbrella group Business Coalition for Balanced Copyright (BCBC) says.
TekSavvy told TF that Internet users who want to contribute to this change should take the opportunity to write to their MPs and the Minister of Innovation, Science, and Economic Development, who oversees the Copyright Act.
Worringly, it also warned that customers who receive non-compliant notices in the interim may be having their privacy breached.
When copyright notices are sent to ISPs, they store information about that complaint in order to identify alleged infringers, should that be necessary in the future. Due to the problems highlighted above, this happens even when a notice is abusive and non-compliant. For concerned customers, there is a solution, however.
“To address that privacy risk, until a standard is adopted, customers can contact us if they receive a notice that includes a settlement offer or that is otherwise not compliant with the Copyright Act, and we can remove the preserved information from our systems,” TekSavvy confirmed.
In summary, Canada-based users who receive an offer to settle in a copyright complaint do not have to contact the copyright holder and do not have to pay any settlements. They should, however, contact their ISP to ensure that the notice is scrubbed from the record and deleted from their account.