Canadian ISPs Want To Amend Law To Outlaw Settlement Letters
from the about-time dept
As Canada looks to update its copyright laws as part of the USMCA, the replacement for NAFTA strong-armed into existence by Donald Trump, we covered previously how ridiculous it is that copyright interests have been allowed to stick their nose in the whole thing and make all kinds of demands. Part of USMCA involves allowing Canada to keep its notice and notice system, as opposed to the notice and takedown system we have here in the States. While Canada's system is preferable to our own, it's not without it's flaws, of course. One of those flaws is how the notice and notice system has devolved into a deluge of settlement letters.
So dire is the plague of threat letters, in fact, that ISPs in Canada are using this opportunity to suggest outlawing those threat letters be included in the updates of Canadian copyright laws.
During a hearing before the House Heritage Committee last week, Pam Dinsmore of Rogers Communications mentioned that her company sends roughly 2.4 million notices per year. Like other ISPs, Rogers is not against the system itself, but it believes that updates are required.
This was the focus of an earlier hearing last month before the INDU committee, where Canadian ISPs including TekSavvy, Shaw, Rogers, and Bell shared their experiences. One issue all parties appeared to agree on is that the notice-and-notice scheme should ban settlement demands.
TekSavvy was actually more pointed in its criticism, with its representative calling out the current settlement letter schemes as designed to intimidate and mislead consumers to extract money from the uninformed. He also helpfully pointed out that these settlement letters have all the hallmarks of spam, scams, and spear phishing attempts, often designed to simply get consumers to reveal more information about themselves that can then be weaponized for more threats and demands.
“This puts ISPs in a difficult position, since we’re required to forward notices to end-users, including whatever extraneous, misleading or harmful content may be included,” he added.
TekSavvy recommended that the notice-and-notice scheme should be updated to ban these types of settlement notices as well as other unrelated info. This ban on settlement requests or other clear abuse was shared by Shaw, Rogers, and Bell.
And why not? The copyright holders and their partners did this to themselves, after all, designing a business model built on intimidation and obfuscation, and then expecting the public and government to simply be okay with all of it. The notice and notice system, after all, was designed to curtail piracy through education and transparent oversight, not through strong-arm tactics. And it's not as though outlawing settlement letters within the notice and notice system would prevent rightsholders from targeting pirates themselves. It would just mean that they couldn't rely on ISPs to do their dirty work for them.
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Filed Under: canada, copyright, copyright trolling, nafta, settlement letters, usmca
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NO, the PIRATES did it to themselves.
Sheesh.
Have to start at the very foundation by stating that creators have (in the US / UK legal tradition) CLEAR EXCLUSIVE RIGHT TO THEIR WORKS. It's explicitly in the US Constitution. -- But of course Techdirt doesn't agree with the Constitution, SO completely overlooks the fundamental Right of Creators and asserts that pirates somehow have the better moral case.
Now, since we know there's a whole lotta infringement going, on any given notice isn't unlikely to be false accusation. There are special provisions of laws to handle the volume of a type of small-claims not worth clogging real courts with. That's the system, pirates: you claim creators aren't losing money, but it's IRRELEVANT:they do have the Rights attending creation to BILL you for unauthorized downloading. PERIOD.
Also: no ISP, supposedly neutral carrier, gets to control the free speech of the parties alleging infringement in communicating to the alleged infringer.
The always interesting point is that apparently all ISPs believe it's their place if not duty to lay out money for attorneys / lawsuits to protect pirates. Pretty clearly it's because promoting piracy and the notion of free content easily available DOES put money into ISP accounts. -- What needs changed in law is ISPs taking the side of pirates. That makes them legally liable in the US. See Grande Comm suit et al.
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NO, the TROLLS did it to themselves.
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Re: NO, the PIRATES did it to themselves.
An IP address is not a personal identifier, and can be shared by family members, Also WiFi, allowing guests on a network, and malware are possible sources of access to the network for a download, if the accuser has actually detected infringement.
Also, the reliability of detecting infringement on an IP address is as demonstrated by DMCA notices of infringement detected on websites, a lot of demands are based on false accusations.
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The surprising part
As in the USA, the huge Canadian ISPs often are the copyright holders or partners. They've taken anti-user actions on this basis before, so it's a little surprising to see them here.
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Re: NO, the PIRATES did it to themselves.
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Re: NO, the PIRATES did it to themselves.
Except this story is about Canada, where the constitution doesn't apply.
Also:
Copyright was defined for a limited 14 year period in the founding father's time. And it's gotten more and more absurdly long since, it's up to Life plus 70 years today, and life plus 100 years in some countries.
Except a few problems with that:
The accuser isn't the only to have rights, so do the accused.
No, these 'small-claims' are NOT authorized through 'special provisions'. It's an attempt to abuse out of court settlements to shake down a ton of people for quick cash.
Umm... what? So it's a violation of your free speech rights if you tell me to send a message and I say no?
... You know it costs the ISP's money to act as the copyright troll's messenger, right? Not only do they need to hire a bunch of people to process these claims (assuming they just roll over and never question anything the copyright holders tell them), it can cause them negative publicity for blindly handing customer info over to third parties & violating their privacy rights, which can cost them customers. Plus there's customer privacy laws they could potentially violate as well for turning said info over.
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Any Canadian lawyers here?
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Re: Re: NO, the PIRATES did it to themselves.
"false accusations" ie. hearsay in many cases. A BitTorrent tracker might just say your IP address is connected to a torrent, and then you'll get a letter (some planned to include random addresses as a form of plausible deniability and/or to frustrate the copyright spammers). Researchers have got people to send letters containing the IP addresses of printers.
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Re: Re: NO, the PIRATES did it to themselves.
While those constitutional points are true, the bigger hole in the argument is that the US constitution didn't give anyone "rights" to their writings. It allowed Congress to do so, didn't require it. (By which definition it's a privilege, not a right—a minor bug in the clause's text.)
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Re: NO, the PIRATES did it to themselves.
1) This does not guarantee the software has accurately identified infringement. (Depending on the software/method - the files identified might not be infringing, or the movement of the files may be legal)
2) This does not guarantee the account holder has committed infringement (the account holder also does not have a positive duty of care)
3) This does not guarantee a member of the household committed that infringement
4) this does not guarantee the infringement was committed by any person known to be using the Account holders connection
Because of this, settlement with the account holder might easily not be a valid move. In America the courts are increasingly dismissive of assertions that an IP address in a torrent swarm is sufficient evidence to compel further discovery, because of these very facts. I can not assert knowledge of the environment in Canada.
A notice of suspected infringement with education as to how to prevent unauthorized use of wifi and what infringement they think occurred is well within their legal rights.
ISPs in Canada, having read these notices going to their customers, are concerned the letters misrepresent and/or falsify the law and the legal rights of the accused in an effort to strong arm legal settlements that are not, necessarily, valid. Copies we have seen in the past support this.
The statement you quote notes that efforts to change this are due entirely to the choices made by rights holders to seek quick rents and hard-sell tactics.
They are not calling for a ban on sending notices, or actual legal filings, just settlement demand letters. Because at that stage such a demand is not only unsupported, but the demands misrepresent the law. Unless you are suggesting copyright holders should get to break the law?
And this of course ignores concerns about malicious actors. BY misrepresenting the law, a malicious actor (say, Prenda Law) could acquire settlements for copyrights they don't own, Honey Pots, or even fake the detection of infringement, and make a quick buck. Court punishments years later won't help the victims, and wont help the artists.
You seem to be making the argument that no demand letters = no enforcement. But that entirely misrepresents the issues at hand.
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Re: NO, the TROLLS did it to themselves.
The ISP's and the record companies clearly have no right to spy on the communications of the end users.
Or do you of all people think that corporations should have the unlimited right to read our mail?
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Re: Any Canadian lawyers here?
To attack the "business model" shows the real agenda of the pro-piracy movement. If you don't pay creators, and don't protect their work, you will have reduced quality of works and works that are used to market much more expensive premium content to patrons. This is already happening with Patreon. YouTube combines strong distribution with strong enforcement and is reaping the rewards. Still, lots of the content on YouTube is just a teaser for the more profitable, premium content which can't be offered for sale and which is now more of a trade secret.
Forcing creators to protect their work individually is what copyright law was designed to prevent the need for. Now e're back to a "pre-copyright" situation, not much different than what we had when murder was still legal. I mean, it was the fault of anyone who allowed someone to kill them, right?
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Re: Re: Any Canadian lawyers here?
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Re: Re: Any Canadian lawyers here?
A settlement letter says something to the effect that you may be sued if you do not pay a fee for the things you allegedly downloaded without a license.
Extortion is obtaining things, usually $$$, through force or threats.
Hmmmmm - these two sure do seem to be very similar - no?
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Re: Re: Altogether now...
Who hated the process of due
Each film that he'd paid
Was DMCAed
And shoved up his ass with a screw
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Re: Re: Re: Any Canadian lawyers here?
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Re: Re: Re: Any Canadian lawyers here?
As an actual creator of content which has been pirated quite a lot, I can speak to the damage piracy does. The "business model" was based on the LAW that courts are refusing to enforce, literally leaving people defenseless against infringement if tying it to the IP address isn't sufficient grounds to sue.
If someone drievs your car and has an accident, you are liable for it.
I understand that people want to steal stuff, and that's also why today's kids are listening to yesterday's music, i.e., that which was made when artists actually got paid.
YouTubers are making millions for cellphone videos while those who write really good books just have them stolen. If that's the world you want, it's the one we have.
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Re: Re: Re: Re: Any Canadian lawyers here?
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Re: Re: Re: Re: Re: Any Canadian lawyers here?
Imagine that.
If copyright is so unenforceable we can just get rid of it and protect no one's work. Then it'll all be marketing, distribution, aggresation, and popularity.
Saying a business model is failing due to criminal activity is flawed as well. it's like saying no one can open a store without mentioning that burglary is no longer enforced, and blaming the storeowner for trying.
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Re: Re: Re: Any Canadian lawyers here?
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We've already seen this with what Uber and Lyft did to the taxi medallion owners in NYC, who invested in that "business model" based on the law. They did that to themselves as well? Or perhaps there was a reason for the medallion system, such as too many cabs flooding the streets during the Great Depression, and now we're seeing the same problems again.
There has to be a way to stop piracy online, but to say that piracy is okay (or that it's tolerable to allow it) just because it can't be policed is flawed logic.
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Re: Re: Re: Re: Re: Re: Any Canadian lawyers here?
How many cases did Prenda Law and Malibu Media bring to the courts and were decided based on IP evidence? Oh, that's right - every time it was challenged, they ran like hell. The only judgments that went in their favor was because the defendant agreed to plead guilty to set a precedent after they had all their cases regularly tossed out by the courts, aside from the ones they ran away from.
How's that Paul Hansmeier defense fund coming along, bro?
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Re:
Shopping malls pay for security cameras and guards. Why should you be absolved of this fee?
Are you a freetard?
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Re: Re: Re: Any Canadian lawyers here?
They get around it here by a slew of exemptions (many of the same that allow collection agencies to function). I was simply curious as to how the Canadians handle it.
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Re: Re: Re: Re: Any Canadian lawyers here?
Your "trade secret" delusion just isn't happening, nor is your imagined reduction in quality, and your murder comparison is laughable.
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Re: Re: Re: Re: Any Canadian lawyers here?
Same way it works in the US: Because anything goes when it comes to protecting The Most Holy Copyright, Without Which Society Itself Would Collapse.
Extortion? Not a problem.
Shoot first, ask question never? Why not?
Silence or otherwise harm someone by removing their content just because you claimed it was yours? No biggie, just handwave it away.
Demanding that everyone else do your job for you, often at significant expense to them*? Perfectly acceptable.
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Re: Re: Any Canadian lawyers here?
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Re: Re:
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Re:
There is, abolish copyright, and things will go on much as they are now, those who connect with fans will make a living, and those who don't will not.
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Blame Canada?
Still, I'd hate to see any government engage in prior restraint of speech like this - even if it involves scammy demands for cash based on spurious copyright claims.
If there's enough evidence to actually charge or sue the senders for fraud or extortion, that would be best. Barring that, a better approach is probably for the ISPs to put together a boiler plate information sheet that give affected users better information about their legal rights and common tactics used by these trolls. They can then include that with any settlement/demand letter they are required to forward by law.
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Re: Blame Canada?
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Re: Any Canadian lawyers here?
I was asking to the specific of how Canadian laws regarding Extortion are being worked around for the "violation" letters.
In the US, there's a pile of Exceptions that cover a host of things that otherwise might be considered Extortion.
Someone above mentioned "when Murder was still legal". That's actually a good one - "Murder" has never been legal anywhere. The word is a legal construct that basically means "illegal taking of a life". There are several degrees of Homicide, including but not limited to Murder. There are special exceptions to all of them.
Extortion statutes, limitations, and exceptions probably takes up several shelves, not including case law.
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Re: Re: Re: Re: Any Canadian lawyers here?
If this is allowed ... I imagine it will be used elsewhere,
for example - a bank robber would claim his robbery note was an attempt to mitigate. LOL, yeah sure it is - stop resisting scumbag.
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Re:
Oh, you are arguing for "felony interference in a business model"?
Business model relies upon something that can not be policed ... so lets base said model on something that needs to be policed - Brilliant!
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Re: 'non-attorneys"
You only NEED an attorney for very few things.
I'm not an attorney and I've handled dozens of Evictions, Small Claims, and, like pretty much everyone in the US, traffic tickets.
I wouldn't defend myself on a Felony charge, but most Misdemeanors don't require spending thousands on a lawyer.
In the particular case of these "violation" letters, I'd probably get a consultation from a law firm on if I could go after the *messenger*. Lawyers LIKE deep pockets when it comes to suits.
However, I was simply curious how Canada handles "threatening letters" under their existing Extortion laws.
Apparently, nobody here knows.
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Re: Re:
Abolishing copyright means anyone can use anyone's work.
How much do you think investors would put into a film if this were the case? Publishers into a book?
This would effectively turn creating works itno a hobby, which would help the smaller creators though only because they would lsoe the least and could steal the most.
Makes one wonder why we ever had copyright to begin with.
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Re: Re:
Those silly laws regulating taxis on which medallions were purchased in NYC for $1.6 million recently no longer apply to Uber and Lyft, so it's the cabdrivers' fault for clinging to that "obsolete" business model of regulated taxis that was designed to limit the number of cars on the road (a new problem in NYC again).
There are already online lawyers who don't have big overhead and who like making a living from home4 willing to do many legal tasks for a fraction of what lawyers charge now, so we are seeing that. Just wonder how the lawyers would react if one applied the copyright logic of this article to that scenario.
It's a form of corporate Darwinism that is sociopathic at best.
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Re: Copyright?
Where do you get that from a third party sending threatening "letters" to people who that third party claims are pirates, and don't forward what money they collect (extort) from such people to the Copyright holders?
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Re: Re:
no "business model" should be allowed to be built on criminal conduct, yet if one cannot sue a pirate via its IP address they will get off scot-free, and copyright protection is literally gone.
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Re: Re: Re: Re: Re: Any Canadian lawyers here?
One woman in the US got a demand for settlement and said "Bring it on!" Everyone cheered but the jury, who awarded the RIAA $225,000 after they had no choice but to "bring it on."
Copyright holders can set their own terms for their works anyway. Copyright law is like divorce law in that it allows this to be done by default just like divorce law is a default prenup.
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IN fact, an ISP could easily be sued for unjust enrichment, since intent is not a key element of this claim. The users who bought the work then pirated would also be on the hook for all subsequent theft of the work, which would cost a bit more since serial numbers would have to be inserted in each copy.
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Re: Re: Re:
The middlemen will suffer is not a good reason for keeping copyright, and has nothing to do with new works being created, or the actual creators being able to make a living.
Well, if you look into its history, it has it roots in managing the printing of books, where printers produces as many copies as they though they could sell before being able to sell the first copy. Under those conditions, having more than one printer in a market print books was a recipe for bankruptcy, as one or both would end up with a large number of unsold copies. A mechanism to enforce single printer in a market actually benefited the printers. The printer would buy manuscripts so that they had something to print.
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Re: Re: Re: NO, the PIRATES did it to themselves.
Seems pretty clear it was intended to give Congress the power to define what rights a creator had over their work.
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Re: NO, the PIRATES did it to themselves.
You owe $50,000 to Techdirt, and I expect a check to arrive at their offices within 48hours.
You just SAID all notices are valid, therefore pay up you pirating scum.
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Re: Re: Any Canadian lawyers here?
what type of crack or crystal meth are you on?
Because dude, you have SERIOUS mental issues and need professional help urgently!
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Suee
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Re: Re: Re:
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Re:
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Re: Re: Re: Re: Re: Re: Any Canadian lawyers here?
That would require the presentation of proof in a court of law, which is something the trolls are not willing to do - all they are interested in is the easy money.
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Re: Re: Re:
You can't even properly identify who "stole" from you. You run as soon as proof is asked for.
You claim no business model should be built on criminal conduct, yet enforce copyright using brute force and crooks.
You're not fooling anyone, bobmail.
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Re: Re: Re:
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Re: Re: Re:
So no loss there. Shockingly it's one of the few times I can kinda agree with blue boy. (End times scenario, I know!) Besides, let's face it - the lawyers you use for enforcing copyright are so hilariously incompetent, the bar they set goes into the negatives.
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Re: Re: Re: Re:
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Re: Re: Re: Re:
Copyright is at Congress's discretion.
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Re: Re: Re: Re: Re:
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'Would you look at the time, seems I need to leave RIGHT NOW.'
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Re: NO, the PIRATES did it to themselves.
"It's explicitly in the US Constitution. -- But of course Techdirt doesn't agree with the Constitution, SO completely overlooks the fundamental Right of Creators and asserts that pirates somehow have the better moral case."
A document you may not have read. Not too surprising for a copyright cultist who still insists on quoting said document, alas.
"That's the system, pirates: you claim creators aren't losing money, but it's IRRELEVANT:they do have the Rights attending creation to BILL you for unauthorized downloading. PERIOD."
The problem here is that what you're actually supporting is that ordinary people are, en masse, sent the legal equivalent of small-sum extortion letters without any backing from a court of law. Because copyright. This, by any definition, is actually racketeering.
As if we needed more evidence that the average copyright cultist gives exactly zero shits about anyone's rights...
Two things to factually address:
1)The copyright clause specifies that the US congress has the power to implement a copyright mechanism, in order to promote progress to science and arts. This is intriguing since it isn't mandating congress to do anything. Congress can cease using said power over a single simple-majority session and thus remove all constitutional support for US Copyright. That actually makes the copyright clause LESS binding than the actual amendments.
2) No civilized society through history has ever implemented a "guilty until proven innocent" legal paradigm. For very good and valid reason. "Because copyright" is not a sufficient reason to run the principle of law backwards.
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Re: Re: Re: Re: Any Canadian lawyers here?
Also you're a litigious asshole with a professed desire for cop-induced violence.
Piss off.
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