Law Times

Page 8 aPril 27, 2015 • Law Times www.lawtimesnews.com iSps concerned about notice-and-notice regime New provisions for copyright infringement spark call for further action By miChael mcKiernan For Law Times he in-house lawyer for an Internet ser- vice provider has called for an over- haul of Canada's new notice-and-notice copyright regime just months after it came into effect. The system, which came into force as part of the 2012 Copyright Modernization Act on Jan. 1, for- malized a voluntary scheme used by a number of Internet service providers for more than a decade. Under the regime, all Internet ser- vice providers must now forward notices from copyright owners to users whose Internet protocol ad- dresses they've identified as a pos- sible source of infringement. However, the federal govern- ment never came forward with regulations governing the al- lowable content of the notices, something that left the process open to abuse, according to Bram Abramson, the chief legal and regulatory officer at Tek- Savvy Solutions Inc. "Nobody wants to see the sys- tem abused, but without regula- tions, there's always the chance," says Abramson. "We would like to see guide- lines on the content of the notice which specifically address items such as aggressive settlement of- fers, which we think ought not to be part of a notice that is required to be sent on," says Abramson. In addition, he says copyright holders should have to pay a fee to the Internet service provider before it has to pass on the notice. "First, for cost recovery," says Abramson, noting that TekSav- vy has already spent more than $500,000 building a system to comply with the requirements of the new regime. "But failing that, just so that the marginal cost of each new notice is more than zero be- cause when there is no marginal cost, there's no penalty for inaccu- racy or an overly high volume of notices." Abramson says some TekSavvy users have al- ready complained "fair- ly vocally" about notices they've received. "Some have been quite taken aback by very firm demands for payments or out-of- court settlements. Oth- ers contact us to say that they couldn't pos- sibly have downloaded whatever the notice says they have. There isn't much we can say to them; we're just the intermediary." Dominique Hussey, a partner at Bennett Jones LLP in Toronto and the leader of its intellectual property litigation practice group, says the federal government has found itself caught between two stools with the new regime. "From the perspective of us- ers, it is . . . open to overreaching demands by rights holders. By contrast, rights holders want to see a stronger regime that obli- gates ISPs to remove infringing content before the courts need to be involved," says Hussey. Even with regulations in place, she says some inaccurate or false claims were still likely to find their way through to consumers. "It is clear how the recipient of a demand letter should react in the circumstances: do not im- mediately capitulate or assume that the infringement occurred. Instead, read the notice carefully, determine whether the infring- ing activity took place, and, if it did, by all means, stop it," she says. "But before paying good money to settle, contact an IP lawyer." One of the most prolific send- ers of notices to TekSavvy users acts primarily for pornography producers, and Abramson wor- ries some users on the receiving end of a demand from the com- pany may feel extra pressure to pay up regardless of whether or not they actually downloaded the titles mentioned in the notice. "Nobody is going to be very enthusiastic about the mere possi- bility of a court case linking their name to some of these titles. . . . I tweeted one to give people a sense. It was for a film called Yoga Butt Sluts," says Abramson. Ren Bucholz, an intellectual property lawyer with Lenczner Slaght Royce Smith Griffin LLP, says he's skeptical about how effective the new regime will prove at reducing piracy and has concerns about notices de- livered on a large scale by some rights holders. "So far, we have seen a lot of reliance on legalese and inscru- table threats to encourage settle- ment. That's something that I think is quite problematic when the company knows it is writing to individuals and not solicitors or barristers. Some letters seem carefully calibrated to convince the recipient that there is no ra- tional option other than to pay up. That ignores the technologi- cal complexities of the Internet. For example, if you have an open wireless network in your home, you can't assume that the person who held the account did the deed. From a fairness perspec- tive, I balk at the idea of using fear to extract settlements." Bucholz once worked for the U.S.-based Internet rights group the Electronic Frontier Founda- tion where he was part of a team offering pro bono support to Internet users targeted under the powerful Digital Millen- nium Copyright Act. The act contains a misuse provision that exposes people to poten- tial damages for misrepre- sentations in their copyright notice. Bucholz says a similar provision would be a welcome addition to the Canadian no- tice-and-notice regime. "There are various ways to tinker with the legislation, whether it's approved language for the notice or penalties for misstating the legal rights at play," he says. However, James Zibarras, counsel to Voltage Pictures in its ongoing attempt to identify TekSavvy subscribers for al- leged copyright infringement, says the regime will prove "very self-policing." "The Canadian public is too well educated on these issues for them to be abused in any way. Most rights holders are going to be careful not to overreach be- cause this is an area that is subject to quite a lot of scrutiny," says Zi- barras, the managing partner at Toronto firm Brauti Thorning Zibarras LLP. "There's nothing to stop people who receive a notice making it public and getting a re- sponse that way." If the regime succeeds in re- ducing piracy, Zibarras says it will be good news for Canada's international reputation. "We are viewed as a country with very high rates of piracy per capita. This is another tool for rights holders and it sends a message to down- loaders that their activity can be pursued," he says. "It remains to be seen how seriously people who receive the notices will take them, but my sense is that if they fail to respond, there will be further action taken against them." LT Even with regulations in place, some inaccurate or false claims for copyright infringement are still likely to make their way to consumers, says Dominique Hussey. FocuS on IT/Telecommunications Law 2015 COMPENSATION SURVEY law departments grow. partnerships evolve, change, Salaries canadianlawyermag.com/surveys Managing partners and law department leaders, share what's happening in your organization. Survey closes May 4, 2015 Untitled-3 1 2015-04-08 9:59 AM T

• Cover