James Moore, architect of S-4, in 2010. Image: Kris Krüg
Soon, you may get a letter from Christopher Sabec. It will probably be asking for $20, all because you downloaded “Bruno Mars -Just The Way You Are.m4a.”
Sabec is the CEO of Rightscorp, an American company known for monetization services to artists and holders of copyrighted intellectual property, and he's coming north to tell Canadians that it is not okay to pirate music. And new federal legislation will be a big help.
The proposed bill is S-4, the Digital Privacy Act. It was introduced by the Conservatives in the Senate and, to hear them tell it, it’s a boon for all of our privacy rights.
The bill amends the Personal Information Protection and Electronic Documents Act (PIPEDA) to allow for an organization to “disclose personal information without the knowledge or consent of the individual,” in circumstances of fraud or “for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed.”
The legislation does offer new protections for users who have their data breached or stolen. But it also legalizes the warrantless sharing of users’ data between corporations, without any sort of oversight or accountability.
Privacy experts see a pretty obvious purpose for the provision: to go after those who download movies, music, and software.
Copyright shakedowns are already popular in America, and involve figuring out who is torrenting, sharing, downloading and seeding copyright material, and then sending them copyright notices. The letters inform the user of how they broke copyright, and offer to settle the case for a set fee—Rightscorp is on the cheaper side, at $20 per infringement.
Industry Minister James Moore—the man responsible for the bill—rejected that S-4 would create a system of extra-judicial copyright vigilantism.
The notices inform the infringer if they choose to ignore or fight the order, they’ll be heading to court, an option that could result in hundreds of thousands of dollars in damages, plus legal fees.
Supporters of companies like Rightscorp call it a necessary recourse for defending intellectual property in a country like Canada, where doing so can be remarkably difficult. It’s essentially like requesting an out-of-court settlement before any court proceedings have even begun. In other words, opponents say Rightscorp is a copyright troll.
The government has pushed back on that assessment. Outside of a Senate committee studying the bill, Industry Minister James Moore—the man responsible for the bill—rejected that S-4 would create a system of extra-judicial copyright vigilantism.
“We don’t have that concern,” Moore told me. Moore’s office further closed the door that S-4 would mean anything at all for copyright holders.
“Our government’s changes will place tighter rules and stricter limits on information sharing between private organizations,” Moore’s spokesperson said in an email statement.
The Harper government’s logic is that the Digital Privacy Act is intended to crack down on fraud, not copyright infringement.
Moore’s office already contends that British Columbia and Alberta already have legislation mimicking what they’re trying to do in S-4. And if there aren't any copyright trolls out there now, they figure, there won’t be after this bill passes.
The Privacy Commissioner for Alberta has differing opinions. When asked if Alberta’s privacy legislation allows for the sort of data requests to internet service providers like Moore’s office suggested, the answer was succinct.
“No, Alberta’s Personal Information Protection Act does not apply in this situation. ISPs are federally regulated; PIPA applies to provincially regulated private sector organizations,” a spokesperson told me.
Asked if the bill will change things for Alberta, the spokesperson noted that “S-4 will impact federally regulated ISPs and how they collect, use and disclose personal information.”
The BC commissioner’s office wouldn’t comment specifically on the copyright trolling issue, but did highlight a submission to a provincial privacy review committee, noting S-4’s warrantless disclosure provisions could have, “unintended consequences in providing authorization for personal information-sharing between organizations under such broad conditions.”
So you might just be hearing from Sabec sooner rather than later. “We’re in the process of exploring that,” Sabec told me. “Our business model in Canada is not the same as in the US because the legal model is not the same.”
Nevertheless, he says, Rightscorp is coming. They’ll be starting operations now, while keeping an eye on S-4 to see how it will be interpreted. Sabec notes that while, at present, they can send the notices to infringers, they don’t have an easy recourse for getting data on just who is downloading the material.
Previous attempts to bring copyright trolling to Canada were, to some degree, thwarted. In 2012, American film company Voltage Pictures (the people behind The Hurt Locker), filed a lawsuit against independent Ontario ISP Teksavvy. They argued before the court that the internet company was required to hand over all the subscriber information for those who were illegally downloading the Iraq War drama.
A Vancouver lawyer said that he’s never heard of a case of copyright trolling here in Canada, but notes he’d welcome the change.
In a controversial decision, the court sided with Voltage, granting them access to the list of infringers. However, the judge slapped restrictions on the company’s ability to go after the infringers. Namely, it made the court an arbiter of these sorts of requests, giving judges the ability to scrutinize whether the demands were legitimate, or whether the company is attempting a throw-it-at-the-wall-and-see-what-sticks approach.
Yet, another recent court decision might frustrate these efforts. In R. v. Spencer, the Supreme Court ruled that law enforcement agencies will need to get warrants if they want ISPs to cough up users’ information. The court did not say anything about how private corporations (to which the Charter doesn’t apply), can share information between each other.
Sabec’s plan is essentially to side-step the courts. The company counts media giant BMG as a client and thinks it has found the perfect model for if and when that happens. By only requesting $20 per infringement, they can go after downloaders without getting the bad press of bankrupting teenagers and single moms.
“It’s the low settlement amount that makes it a non-story, and makes it reasonable,” Sabec said. “I don’t think there’s a client we have that doesn’t want to branch out into Canada.”
The costs could go up for big pirates, however. The more you seed or download, the more Rightscorp can ask for. In the States, the company asks for $20 per infringement, which is still substantially lower than the $150,000 per infringement that the American courts can impose. Saybeck’s company can also file to have users’ internet service suspended.
Here in Canada, there’s really no telling how the courts will interpret a request like this. The regime that the government tried to set up to deal with trolls in the Copyright Modernization Act—whereby copyright holders can send the infringement letters through the ISPs—appears to be moot in light of the not-yet-passed provisions in S-4. One way or the other, pirates would only be liable for $5000 under Canadian law.
Andrei Mincov is a Vancouver lawyer who has experience with the Canadian and American copyright systems. He says that he’s never heard of a case of copyright trolling here in Canada, but notes that he’d welcome the change.
“Currently, the damages are low, and it’s generally hard to get them,” he said.
And that’s the big barrier for companies looking to get their pound of flesh from illegal downloaders. But creating a shortcut, a direct line from rights holders to ISPs to obtain users’ home addresses, will make life much easier for them. For those corporations who provide both television and internet to Canadians, like Bell and Rogers, they will likely be tripping over themselves to feed the copyright holders to the wolves. Now all that’s left is for S-4 to pass.
Update, 06/16: The original version of this article did not make it entirely clear that the maximum penalty for illegal downloading in Canada is $5,000.