Canada's RIAA wants to force Internet providers to boot pirates [ip]

[Declan McCullagh <declan () well com>]

---

> Date: Mon, 9 Aug 2004 07:21:23 -0400
> To: Declan McCullagh <declan () well com>
> From: Michael Geist <mgeist () pobox com>
> Subject: Canadian Recording Industry Calls for Notice & Termination of
>  File Sharers
>
> Declan,
>
> Of possible interest to your readers - my Toronto Star column today 
> 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 
> 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

_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)