Earlier this week, the Canadian notice-and-notice law took effect. Now, it seems that copyright holders are sending legal threats which contain false information about the legal reality in Canada.
One of the features of the new copyright laws was that each act of infringement for personal use contains a cap. This cap was set at $5,000 for non-commercial copyright infringement. Now, legal notices being sent out apparently show that these private enforcement agencies simply didn’t get the memo. Michael Geist has posted a boilerplate legal threat. It reads in part:
Your ISP service could be suspended if this matter is not resolved.
You could be liable for up to $150,000 per infringement in civil penalties.
Both of these lines are misleading. There are no laws that require ISPs to suspend a users account based on copyright infringement. This type of action is simply up to the ISP to decide. The second line, however, is completely false when put into the perspective of a copyright holder targeting a user for non-commercial copyright infringement as far as the laws that were recently brought into force are concerned. The letter was apparently sent by copyright troll Rightscorp.
What is just as troubling for many is the fact that Rightscorp is apparently citing US laws rather than Canadian laws. US laws simply do not apply in Canada, yet the notice reads:
This unauthorized copying and/or distribution constitutes copyright infringement under the U.S. Copyright Act. Pursuant to 17 U.S.C. 512(c), this letter serves as actual notice of infringement. We hereby demand you immediately and permanently cease and desist the unauthorized copying and/or distribution (including, but not limited to downloading, uploading, file sharing, file ‘swapping’ or other similar activities) of recordings of BMG Artist compositions, including but not limited to those items listed in this correspondence.
The demand letter also contains this:
In order to help you avoid further legal action from BMG, we have been authorized to offer a settlement solution that we believe is reasonable for everyone. To access this settlement offer, please copy and paste the URL below into a browser and follow the instructions for the settlement offer:
This is not the purpose of the notice-and-notice system. What is being said is clearly abuse of the system as the intent of the laws were to allow rightsholders to demand users to cease and desist certain activities – not for the purpose of racketeering and extortion.
Michael Geist commented on this demand letter with the following:
These actions necessitate two responses. First, Internet service providers should add their own information to the notices, advising their subscribers on the true state of Canadian law and reassuring them that they have not disclosed their personal information to the notice sender. The law does not prohibit ISPs from adding additional information within the forwarded notice and they should begin doing so immediately.
Second, the government should quickly implement regulations prohibiting the inclusion of settlement demands within the notices and creating penalties for those companies that send notices with false or misleading information. The Canadian government has frequently defended the notice-and-notice system as a balanced approach, but its fairness is being undermined with Canadians now facing the prospect of misleading settlement demands.
What is clear in the demand letter is that this letter prays on ignorance of the law. Not everyone has full knowledge of Canadian law. It seems that Rightscorp also doesn’t have full knowledge of Canadian law if this demand letter is anything to go by. While we aren’t aware of any response from the government, it appears that ISPs are taking notice. In a followup post, Michael Geist points to letters attached by ISPs to the demand letters. One letter by Shaw states in part:
We are unaware of the full details and merit of this infringement claim. If you have questions concerning this matter, please contact the content owner directly – contact information is listed in the attached notice.
Infringement of copyright laws may result in the content owner pursuing remedies available under applicable laws to protect its interests. We encourage enabling secured passwords on your home Wi-Fi network if you have one to avoid unauthorized use of your Internet connection.
It’s actually unfortunate seeing this as the most this letter does is say that there is no known merits to the particular demand letter. Beyond that, there’s no real valueable information other than simply saying ask around. A Teksavvy letter states in part:
(a) We haven’t told the sender who you are. Your privacy is paramount to us. We don’t track, or know, what you do. We do know what IP address we assigned to you within the last 30 days. But we don’t provide personal information like that to anyone unless a court orders us to — and we have not done so here. The notice was simply received by us, and we have forwarded it electronically on to you.
(b) We are an intermediary that is required to forward this notice to you. We do not, and cannot, verify its contents or its sender. However, a private party’s notice does not mean there has been any legal ruling. Only a court can do that.
(c) It is good practice to make sure you secure your account. Your wireless router should be password-protected; the password should be changed regularly; and those who have the password should maintain good virus protection. Your MyAccount allows you to check your bandwidth usage: do so regularly, and make sure what is happening and what you think is happening line up.
(d) We retain IP address information for 30 days. If your modem has not been powered off during that period, then we may have IP address information going back to the last time you did. In addition to requiring us to forward this notice, the Copyright Act also requires us to retain the records matching the IP address and time to your account for six months. If the people who sent the notice apply to a court, they can require us to hold it for longer.
We have provided some links below. The notice, which we are required to forward unaltered, follows.
Geist comments that misleading statements in the notices from copyright trolls and/or owners is still a concern. Ideally, one might argue, action should be taken by the government regarding false or misleading notices of infringement. It was, after all, their law that they wrote. As a result, the government should ensure that the system is not being abused. Whether or not the current government is going to take action, however, remains to be seen.
Drew Wilson on Twitter: @icecube85 and Google+.
