You’ve Been Noticed… and Noticed: Illegal Downloading in Canada Just Got a Bit More Consequential

We’ve started seeing more and more information surface about the Notice and Notice regime – in which, following a complaint from the rights holders, Internet Service Providers and Search Engines will be required to forward notices of infringement to subscribers who are alleged to have downloaded copyrighted content. The law came into effect on January 1, 2015.

Essentially, the regime empowers the rights holder (e.g., the case of Voltage Pictures notifying TekSavvy) to send a notice to the ISP alleging the breach, which the ISP will then forward to its subscribers based on the IP addresses connected with the alleged breach. The ISP is not required to release the personal information of the subscriber to the rights holder, and there is no fine or legal action associated with the notice. It is simply notification that the IP address has been associated with a copyright breach via an action of downloading. This amendment of the Copyright Modernization Act provides a legal safe harbour for ISPs to not be liable for the actions of their subscribers. The ISP is required to maintain these records for 6 months in the event that the rights holder chooses to pursue legal action.

You’ve Been Served

Limitations of the new system have begun to emerge, with the University of Ottawa’s Canada Internet and E-Commerce Law Research Chair, Michael Geist, reflecting on the implications in a recent Toronto Star article: “At least one U.S.-based anti-piracy firm has used the system to send notifications to subscribers that misstate Canadian law, citing U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they pay a settlement fee.” The notice demand from the US copyright monetization company Rightscorp cites US law and states a settlement fee, which is actually not legal according to the Canadian policy. US rights holders cannot legally contact any individual Canadian subscriber directly. Instead, the notice must be sent from the US rights holder to the Canadian ISP, and, under the new regime, the ISP is required to forward the notice. Analysts are calling for ISPs to amend and standardize their notifications to include reference to Canadian law and to the rights and responsibilities of the recipient of the notice, instead of simply forwarding the US template, which may contain misrepresented language.

Canadian copyright firm Canipre distributed fresh ISP notices. Any Canadian who receives an ISP notice should be aware of their rights as follows:

  • The rights holder does not know the personal identity of the recipient, and will need a court order to proceed with any potential litigation
  • Notices cannot include a settlement demand of any amount
  • The maximum fine within Canadian law is $5,000 for individual or $20,000 for commercial infringements (not the $150,000 allowable in the US), which penalty requires litigation
  • A provision exists (although not ratified at this time) for the possibility of administrative fees for the processing of notices to be transferred from the ISP to the subscriber
  • The subscriber’s account is not liable to be terminated
  • The notification has to include certain information: the copyrighted work, the IP address that was used, the time the alleged infringement occurred
  • The infringement only relates to downloaded content, not to streaming

You Can VPN but You Cannot Hide

A significant consideration of the Notice and Notice regime is that its terms do not currently include VPN providers, although this is a major access tunnel for many who download content. When a subscriber is using a VPN, their IP address is masked, but there are ways to technologically detect that a proxy server has been used, especially if the VPN maintains internal logs (which some do). A recent case raises concerns about how evolving technologies might enable the tracking of VPN usage – which could unveil the current shield that VPN users may have against the Notice and Notice regime.

After a Torrentfreak report that VPN subscribers were receiving error messages when attempting to access geo-blocked Netflix libraries using their VPN, official spokespersons responded that no policy change to Netflix anti-VPN access had been made. A draft Netflix content protection agreement, however, references the use of “geo-location bypass detection technology.” It is a no-brainer that Netflix may feel pressure from studios and rights holders to tighten anti-VPN policies in order to prevent geo-hurdling of licensed content, with the issue of “semi-sanctioned” piracy being raised in recent Sony/Netflix negotiations. In fact, newer versions of the Netflix Android app force the Google Public Domain Name System (DNS) instead of any third party DNS settings – which does not allow the user to successfully geo-hurdle. These features are not apparent at this time on the desktop native version, but it is evident that technology may advance to identify activity undertaken behind a masked IP.

The business component of the VPN and its noble purpose beyond accessing US Netflix (in heavily censored nations the VPN still represents freedom of access to information) mean that these services are likely to multiply in availability and/or enjoy increased subscription. VPNs are not going out of business any time soon. Neither are ISPs, which may simply be the gatekeepers, but which are now being co-opted into managing that access. Of course, the ways in which subscribers can conveniently and economically access online content are also a booming business. Online audiences are not bereft of choice by any means, but some may pause to freshly consider the evolving impact of the action of illegally downloading.

Renee Robinson
Renee Robinson, Strategist and CEO at Strategic Screen, is a media industry creative strategist and thought-leader with management experience in programming, regulation/policy, strategic planning, and industry intelligence - both in Canada and internationally. Prior to relocating to Toronto in 2008, Renee advised on policy development and industry intelligence to the Ministers of Culture, Entertainment, Tourism, and Foreign Affairs in Jamaica. Renee holds a MA in Communications and Culture with a specialization in Telecommunication policy.
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