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

From: Declan McCullagh (declan@private)
Date: Tue Aug 10 2004 - 06:23:31 PDT


---

>Date: Mon, 9 Aug 2004 07:21:23 -0400
>To: Declan McCullagh <declan@private>
>From: Michael Geist <mgeist@private>
>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@private              http://www.michaelgeist.ca
>

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