Canadian Recording Industry Calls for Notice & Termination of File Sharers

[dave () farber net]

___

Dave Farber  +1 412 726 9889



...... Forwarded Message .......
From: Michael Geist <mgeist () pobox com>
To: dave () farber net
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 () pobox com              http://www.michaelgeist.ca



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