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The Canadian Government Is Pushing Back Against Warning Letters for Illegal Downloading

It's not much and it's coming far later than even ISPs and Industry Canada wanted, but at least they're doing something.

by Christopher Malmo
Jan 13 2015, 3:38pm

Photo via Flickr user Marco Gomes

Last week, the government said it would take action to clamp down on a torrent of misleading copyright infringement letters being sent out under Canada's "notice-and-notice" copyright regime. The law, which came into full effect at the start of 2015, obliges internet service providers (ISPs) to deliver notices of alleged copyright infringement to customers.

Ministry of Industry spokesman Jake Enright responded to public pressure by saying officials would get in touch with ISPs and rights holders to ask them to cut it out.

Digital policy expert Michael Geist had previously published a letter from rights holder BMG and copyright troll Rightscorp, sent to him by someone else, threatening the recipient with $150,000 liability per infringement and asking for payment up front.

Canada's copyright law caps non-commercial liability at $5,000, so the letter's claims are clearly bogus. Given that letter recipients haven't even been proven to have committed the alleged infringement (only your IP address is accused, essentially), the letters are borderline extortionary.

Amid the threats of lawsuits and life-ruining financial penalties, the Rightscorp letters direct frightened recipients to a page that offers them a way to make the charges go away for the low, low price of $20. "Pay up now, or we'll take you to court," the message implies.

Here's why you shouldn't jump at the chance to potentially save $149,980 by settling up with Rightscorp.

ISPs are only obliged to deliver the notice (usually by email). They are not required to divulge any personal information that could identify alleged pirates without a court order, and so far there have been no reported cases of ISPs spilling the beans.

The copyright troll sending the letter doesn't know your identity, only the IP address associated with the alleged infringement. They can't take an IP address to court—assuming it's even worth it for them to try to win the case and collect $5,000, which is far from guaranteed.

Right now, if you're accused of downloading copyrighted material, the only way you could get dragged into an aggravating scenario is by responding to the letter or by contacting its sender. You could also end up losing some cash by visiting a settlement site and paying up. But so far there doesn't appear to be any real, significant legal risk posed by these troll letters. They're designed to frighten people, and in the US, firms like Rightscorp are already in hot legal water for incessant robo-calling or public, porn-shaming threats.

As Geist pointed out in a recent blog post, this mess is partly of the government's own making. ISPs and Industry Canada officials offered two copyright law reforms back in 2012 that would have prevented notices from threatening absurd penalties and lawsuits, and from demanding payment.

Civil servants had sensibly offered the option of a letter template for all copyright notices to follow, which the government declined. Industry Minister James Moore also quashed an idea that would have released ISPs from liability if they declined to forward misleading notices.

It's nice that Moore's office quickly indicated its displeasure with Rightscorp's sleazy schemes to threaten Canadians with pre-emptive penalties for crimes they haven't been proven guilty of. But as Geist argues, merely asking them to stop won't cut it. After all, the trolls are playing by the rules.

Commendably, ISPs have reacted by appending their own messages to the letters to try to inform people of their rights and privacy protections.

If the government wants to win some hearts and minds on the internet, it's time for Moore to take two actions: first, to put a regulatory stop to misleading copyright notices before any more Canadians get scammed by shakedowns like these. Second, the minister must modify Bill S-4 (the new digital privacy act, which is currently going to committee) to make it harder, not easier, for internet users' personal information to be shared.

With a federal election coming this fall, perhaps privacy-minded voters might light a fire under Moore by sending a few letters of their own.

Chris Malmo is a donor relations coordinator at OpenMedia.

Follow Chris on Twitter.

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