It was inevitable. Sooner or later an infringement notice would arrive in the inbox of someone’s granny accusing her of illegally downloading an online warfare video game/hip hop music video/22nd Century rogue robot movie (take your pick). In this case it was the warfare game, a game which our grandmother had never heard of and would have no reason to download. In May of 2016, eighty-six year old Christine McMillan reportedly received such a notice for downloading Metro 2033, an “apocalyptic first person shooter” video. The notices, which came into effect in 2015 as part of revisions to Canada’s copyright act in 2012, are based on notification by content owners (rights holders) to ISPs of IP addresses identified as engaging in infringing behaviour. By law, the ISPs are required to forward the notice to the registered user of the IP address in question, drawing the alleged infringement to the subscriber’s attention. The purpose of the notices is to raise awareness about piracy, to educate consumers and to dissuade them from continuing infringing behaviour. It is commonly known as the “notice and notice” system, after the fact that the rights holder issues a notice to the ISP and the ISP then passes on that notice to the subscriber.
Without doubt most if not all infringement notices are accurate in terms of identifying where the infringing behaviour is taking place, but given the complexities of the internet one can never be sure which individual is actually engaging in the proscribed activity. In the case of our shocked grandmother, it is always possible that someone else had access to her computer at times, or perhaps an error was made in identifying the ISP address (just one digit can make a big difference), or maybe her wireless network was not secure and someone in the neighbourhood was poaching on her account. While there are many explanations for the occasional mistaken notice, when something like this goes wrong it feeds public perceptions that rights holders are persecuting “innocent” consumers. The media is quick to pounce. “It feels like blackmail” scream the headlines, detailing stories of “traumatized” students and others receiving notices demanding payment for illegal downloads.
The problems stem not just from potential errors in identifying the actual infringer, but largely from companies engaged by some rights holders to seek payment from alleged infringers, even though the “notice and notice” regime makes no provision for levying fines or requiring payment. The Government of Canada website set up to explain the process is very clear;
“The Notice and Notice regime does not impose any obligations on a subscriber who receives a notice and it does not require the subscriber to contact the copyright owner or the intermediary”.
There is provision under the law for sanctions, with a maximum liability of $5000 for all non-commercial infringements. Such an infringement would have to be pursued in a court of law, however, with a judicial determination as to the amount of penalty. This is unlikely to happen except in extreme cases.
What has attracted public attention is the inclusion of “settlement notices” issued by the collection companies which are attached to some notifications of infringement. This is what happened in the case of Christine McMillan. Typically these notices draw the attention of the recipient to the alleged infraction, and invite them to contact the representative of the rights holder to discuss a settlement. Depending on your point of view, this has been construed as stretching the law to frighten recipients into self-identifying and to coerce them into reaching a settlement, or as an effective means to combat piracy, as claimed by some of the firms sending the settlement letters. The “effectiveness argument” is based on the principle of making consumers aware that there is a cost to infringement while offering them a simple and relatively inexpensive way of settling without litigation. In Australia there has been talk of pursuing a “traffic fine” approach to get the message through to consumers accessing infringing content that there is a price to be paid for ignoring the law. Interestingly, the collected funds will be used for consumer education about piracy.
Like the half-full or empty glass, much depends on one’s perspective and how the message is sent and received when dealing with matters such as personal infringing behaviour. It is a delicate balancing act to make consumers aware that there is a potential cost to piracy, while not alienating the public and potentially painting the content industry as bullies harassing vulnerable parties, such as grandmothers. What is the right mix of carrot and stick, and to whom should the stick be applied? There are no easy answers, but too much stick applied to the wrong parties can be counter-productive, as was amply demonstrated by the lawsuits launched by some content owners in the early 2000s.
The focus of the Canadian “notice and notice” regime is on consumer awareness, education and dissuasion rather than punishment. To reinforce this message, the Motion Picture Association-Canada has put up the website “Respect Copyright in Canada” explaining the purpose of the “notice and notice” regime and offering clear and useful guidance to consumers regarding what to do if they receive an infringement notice. The most important message of course is, “stop illegal downloading” and then “take steps to secure your Internet account”. The website also makes it clear that if the alleged behavior stops, no additional notices will be sent. To supplement this warning system is another very useful website, “Where to Watch in Canada”, which guides consumers to legitimate online sources of movies and TV content in Canada.
Online piracy is an important issue, in Canada as elsewhere. Repeated infringers who express disdain for the law and who see nothing wrong in appropriating content without payment may be beyond the scope of education, and in such cases there may be a place for some form of penalty. However, I still believe that most consumers, if made aware of the consequences of infringement both for themselves and for the artists and industries that create the content they enjoy, and if pointed to easily accessible sources of legitimate content, will avoid the pirate websites. There can be legitimate debate about the best ways to deal with online piracy, and there are a number of methods that have proven effective—but picking on granny is surely not one of them!
© Hugh Stephens 2016. All Rights Reserved.