In 2019, you might finally be paying for that Crave package just to watch Game of Thrones, but chances are there are plenty more movies and shows you can’t bring yourself to spend hard-earned money on (or can't easily find).
There’s also a good chance a few of you reading now have received an email calling you out on your illegal downloading. Typically it’s from your internet service provider informing you of alleged copyright infringement, and in the past may have included a strongly-worded segment from the copyright holder saying you can make this go away by paying up.
You didn’t really have to worry about these, though. We rightfully knew this to be a toothless tactic under Canada’s notice-and-notice copyright regime—the rightsholder doesn’t even know your identity at this stage, though your internet service provider does.
According to lawyers at McInnes Cooper, an East Coast law firm, people across Canada are beginning to be sent letters that seem similar to the copyright infringement notices we’re accustomed to, but these new ones are far more serious. They arrive via registered letter—meaning that you need to acknowledge you’ve received the letter. Once the letter is in your hands you have been, as they say, served, and now have 30 days to act.
“IF YOU FAIL TO DEFEND THIS PROCEEDING [the all caps appear in the letter] judgement may be served against you,” reads the final portion of one of these registered letters.
While people have been hit by lawsuits in the past, Patrick Kerr, one of the McInnes Cooper lawyers, told VICE that they’ve seen a rash of these suits being issued and that they all follow a typical progression.
"Initially the lawsuit is filed on behalf of the movie production studio, sometimes several hundred if not more, to Jane of John Doe,” said Kerr. “There's then a motion to have the Internet Service Provider, typically Rogers or Bell in Canada, to disclose the address and name of the person allegedly associated with the IP address."
"Once these companies have these names and addresses the statement of claim is then subsequently served on the party. That party has to respond by filing a statement of defence within 30 days," he added.
If you, or whoever gets this notice by registered mail, ignores it—like would-be internet pirates have been trained to do—then a default judgement will be issued and, badda-boom, badda-bing, you just lost a lawsuit. It’s not a cheap loss either. You can be on the hook for upwards of $5,000.
Long story short, the studios are coming after people in an attempt to scare people away from downloading their wares for free. They obviously can’t sue everyone, but they can make people afraid to get sued.
The way this works is through a reverse class-action lawsuit, which, according to a McInnes Cooper explainer on the subject, allows them to consolidate “what would otherwise be hundreds of lawsuits into just a handful of lawsuits.”
Typically, a class action lawsuit allows a group of people to band together and sue one party. In this case it’s the opposite—one party can turn around and sue a mass group of people for the same thing. Compared to individual lawsuits, this is far cheaper.
Once the studio has a group of people’s IP address—say a crew of people who have downloaded and seeded a movie on a torrent site—they will sue them as a nameless entity. Then they will file for something called a Norwich order which compels internet service providers to provide names connected to these IP addresses. Norwich orders aren’t cheap and can cost a copyright holder a pretty penny (sometimes hundreds of dollars) to get a name from an ISP. This is what changes the game—changes that piece of paper from one that’s easily ignored to one that you best take seriously. Once they have your name, they’re off to the races.
The main advice Kerr and other lawyers dealing with these suits have for Canadians is: for the love of god, if it comes through registered mail (as opposed to email,) don’t ignore it.
According to Kerr, however, these cases are winnable. There’s a very real possibility that the IP address isn’t correct, and if it is, it’s by no means proof that the person attached to the address is the same person who allegedly infringed on the copyright. A person could be using someone else's Wi-Fi without their knowledge, or if they were allowed to be using the internet could still download something without their permission.
"Our position is that there are a number of potential situations wherein the identifier of the IP address didn't actually commit the alleged infringement,” said Kerr. “Even if the IP address is correct it doesn't mean the person connected to it is the perpetrator."
The list of the studios and production companies suing isn’t a small one, and contains a number of heavy hitters. McInnes Cooper’s website identified several, including Morgan Creek Productions (of Ace Ventura fame), Inc, Dallas Buyers Club LLC, WWE Studio Finance Corp, Voltage Pictures (who made The Hurt Locker), Wind River Productions (who made, uh, Wind River), and more.
"We saw this as an imbalance of power, and there was the thought that we could help people and this was going to be something more and more as the technology evolved and it became more and more possible to identify people,” Kerr told VICE.
Voltage Pictures were recently involved in a lengthy lawsuit with Rogers Communications over payments of Norwich orders that came to an end in September of 2018. The court found that copyright holders need to pay internet service providers for the fees relating to Norwich orders, which can be pricy. Despite this financial roadblock, it seems the production companies are heading forward with lawsuits.
Long story short, the odds of Canadians getting sued over downloading music and movies are going up, and there’s a chance you could get dinged by stealing some content. Seriously… just stream your bullshit, you heathens.
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