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