Canadian ISPs Call For Standardization And Fines For Copyright Trolls Ignoring Changes To Copyright Law
from the needs-teeth dept
Sometimes stories that appear to have good outcomes end up with unsatisfying ends. Such appears to be the case with the recent changes to Canada's copyright laws. After ISPs in Canada began making a great deal of noise about the plague that is settlement threat letters, which ISPs are required to pass through to their customers under threat of fines, the government did the unthinkable and changed the law. The changes made it so that copyright trolls could not force ISPs to pass these letters to ISP customers if the letters contained the usual tactics: offers to settle the claim of infringement, requests for payment or personal information, a reference or link to any such demands, etc. This should have been the end, in other words, of copyright troll fishing expeditions as facilitated by ISPs.
But, as Michael Geist pointed out at the time, that hope was always fleeting, as the new law failed to put in place any punishment for copyright trolls should they simply ignore the law. And ignore the law they most certain did!
Unfortunately the new rules – as predicted – are being abused by companies who feel the law doesn’t apply to them.
As reported by TF earlier this month, anti-piracy outfit Digital Millennium Forensics (a Canada-based company), in conjunction with Elevation Pictures, is continuing to send notices that breach all of the rules, especially the demands for cash settlement. Since the publication of our article, TF has received numerous additional copies of notices sent to even more customers of Eastlink, the ISP featured in the piece. The government says that ISPs don’t have to pass abusive notices on but Eastlink told us they don’t have the capability to filter them out, since there are so many of them.
Since then, the flow has continued. TorrentFreak has received even more copies of abusive notices sent by Digital Millennium Forensics and forwarded by other ISPs. They include Shaw, one of Canada’s most prominent providers, through to Xplornet, the country’s “leading supplier” of rural high-speed Internet.
The examples continue to flourish from there. ISPs that have bothered to comment have pointed out that they have no good way of filtering the letters trolls send to them for content that violates the law. There are so many of these letters, which was the entire problem to begin with, that doing this manually would be a full on nightmare. It's also worth noting that the ISPs' job is not to confirm that third parties are complying with these new aspects of Canadian copyright law. So the ISPs are throwing up their hands, forwarding all notices along as they had been before, and nothing has changed.
Well, some ISPs have suggested how this might be fixed: the standardization of these notices and some actual teeth in the law to punish violations.
Unfortunately, Xplornet did not respond to TorrentFreak’s request for comment. Shaw Communications did, however, and a spokesperson indicated that it’s aware of the issue and is calling for measures against senders of abusive notices.
“Unfortunately, some rightsholders and their representatives may continue to disregard the requirements of the notice-and-notice regime. Shaw makes it clear to our customers that they are not obligated to comply with settlement demands,” Shaw said in its response. “At the same time, we are urging the introduction of measures in the Copyright Act to end this practice – such as monetary penalties applicable to rightsholders who issue notices that include settlement demands or other prohibited content.”
Frankly, the very least the government could do would be to give its constituents some reason to comply with its written law. After all, if the law was worth writing, isn't it worth making sure that that same law is actually followed? Not to mention that ISPs are already under threat of monetary fine if they don't comply with the law in forwarding the notices on to customers, so why not ensure rightsholders are treated the same?
Geist is back again, pointing out that this is all a problem of scale. A problem of the copyright trolls' own making.
“The problem is that the government’s approach does not penalize sending settlement notices via this system. Instead, it merely states that ISPs are not obligated to send such notices,” Geist told TF. “However, given that ISPs are still required to send compliant notices under threat of penalty, many ISPs will send all notices because it is too difficult to manually distinguish between compliant and non-compliant notices.”
Like the ISPs, Geist says there are potential solutions, such as the standardization of notices or establishing penalties for sending non-compliant notices, as suggested by Shaw. As things stand, however, things are likely to continue as they are.
Making the much-needed changes to Canadian copyright law is an exercise in mental timewasting and isn't worth whatever paper the law was written on. The encouraging part of all of this is that ISPs were able to get this law written in the first place. Hopefully, they'll be able to get the law some actual teeth as well.
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Filed Under: canada, copyright, copyright trolling, demand letters, isps
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Trivial to fix IF the desire is actually there
If there's a penalty facing the ISP's for not sending legally compliant notices, then the solution to this is simple: Every non-compliant/illegal notice sent by the copyright extortionists triggers an identical penalty levied against the one sending the notice, with the amount paid out to be split between the ISP and the extortionist's would-be-victim.
To provide incentive to pay and do so quickly until the penalty if paid then all notices sent from that individual/group can be considered to be non-compliant and tossed with no legal repercussions.
Make it so the law actually has penalties on both sides rather than being entirely one-sided and I imagine abuse would drop dramatically.
As an aside I find it both funny and telling that the ones trying to extort people by accusing them of violating the law in turn have no hesitation in ignoring the law themselves. Nicely highlights how they consider the law binding only to so as it's not binding them, and that they're only in it for a quick buck.
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The Right Destination
I think the ISP's should forward the letters, but to the Canadian Parliament, maybe particularly to those who wrote the new law without penalties for the trolls. If their statement of the volume of copyright trolls violating the laws is correct, Parliament won't put up with it for long. Then, let the press know, so those in Parliament who would likely turn on the ISP's rather than the trolls, would be called out for ignoring the trolls ignoring the law.
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Put them on a notice and takedown system
The notice senders need to be put on a notice and takedown system. The ISP adds a cover letter to the infringement notice detailing Canadian law, and gives a place for the notice recipient to file a complaint that the notice is non-compliant. After 6 complaints, the ISP is no longer required to forward notices from that notice sender. Also, the ISP is under no requirement to actually investigate the veracity of the complaints.
Give them a taste of their own medicine.
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John Herrick Smith isn't going to like this very much, is he?
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All this will do is make sure the rightsholders just take individuals to court, though it will stop the "extortionist trolls" who abuse the process. It will just make it more difficult for legitimate plaintiffs to settle cases. Hope whoever loses a fortune in court because of this intransigence winds up feeling their little moment was worth it.
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Yes, it will. That is the problem with due process. It makes getting justice more difficult. The only reason we put up with due process, is that it makes getting INJUSTICE more difficult. MUCH more difficult.
That's why due process is such an important part of the bill of rights. You have to PROVE you're a legitimate plaintiff, yes, but the flip side of it is, nobody can use the law to harass you until they've proven THEY are a legitimate plaintiff.
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... Step four: Lawsuits!
Please, SOP for copyright extortionists is to run away the second someone tries to drag them to court, so it sure as hell isn't going to get them to actually file a lawsuit, and for those who aren't gaming the process for a quick buck the idea that they have to follow the gorram law(you know, like they're demanding others do) and can't demand payment to go away in the letter isn't going to change a thing.
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That thing where they are used to society being forced to pay the price to protect their copyrights & it is a sin to think they should bear any burdens...
They would scream bloody murder about how having to comply or pay fines (which is sorta of sad since its what they want everyone else to do), but even modest fines should result in them learning to comply... and for those who don't, add a multiplier.
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Re:
All this will do is make sure the rightsholders just take individuals to court, though it will stop the "extortionist trolls" who abuse the process.
Okay? No idea why you're trying to frame this as a downside from the pro-copyright perspective.
It will just make it more difficult for legitimate plaintiffs to settle cases.
There's your mistake right there. Settlement doesn't determine legitimacy. It's nothing more than a letter saying "Pay me money to go away". But then again, unless you're a plaintiff who's setting up a honeypot (Prenda), who hasn't applied for the copyright on their works (Malibu Media), or trying to make money off settling cases against people who can't fight back (Strike 3), why the concern?
Hope whoever loses a fortune in court because of this intransigence winds up feeling their little moment was worth it.
Sure, if the legitimate plaintiff decides their case is worth the risk. Usually plaintiffs have a nasty little habit of running away the moment the judge calls their evidence into question.
Seriously, Jhon. This copyright troll defense strategy of yours is getting stale...
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When fines are actually levied in those rare cases like Prenda, how long did it take and how many lawsuits before any money left their hands?
I was goong to add cold and dead bit that would be wishful thinking.
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"Unfortunately the new rules – as predicted – are being abused by companies who feel the law doesn’t apply to them."
Sounds like the typical corporate response.
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Re: The Right Destination
People are getting choked and hogtied similar to s&m and handcuffed to the point somehow they are going to scream rebellion and push back against this black cloud of sadistic law whoring ever expanding their horizon of greed and blood lust. Then we will see the true cowardice of this system lash out and let the bombs fall where they may. Those days are not so far away.
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Re:
Getting summoned into court for what you know is a foolish, frivolous attack on your freedoms guaranteed by our nation's constitution is harrassment in my book.
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I hate seeing Canada being sucked into this vortex of new world order mentality and control.
Take off, eh?
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Re:
My point is that legitimate plaintiffs who could have relied on the DMCA would instead have to sue. There was a woman who refused to settle for $3,000, said "bring it on!" The RIAA brought it on and won a $225,000 judgment. Did she expect a standing ovation from the jury?
Take away the DMCA or its equivalents and pirates will wind up in court losing a lot more.
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Re: Re:
And how many cases do plaintiffs bring that end in a judgement like Jammie Thomas-Rasset's did?
Right... They all run like hell the moment the judge asks them questions about their Guardaley-brand IP address generation system.
I thought nailing pirates and making them lose was your end goal, Jhon. Why are you so concerned about bringing pirates to court? Don't you want to sack more pirates for six-digit settlements?
It's almost like you know you have more to lose by taking on this gamble.
How's that Malibu Media fund coming along bro?
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