Copyright Notice & Notice Is Flawed

You may have read about the Supreme Court of Canada deciding Rogers can be paid its costs for telling a copyright owner the identity of movie downloading customers. What isn’t talked about is the notice and notice system that puts this in motion.

A summary of the Rogers v Voltage decision is here. Omar has written about this on Slaw as well.

This is a complex and controversial issue. The essence is that sections 41.25 and 41.26 of the Copyright Act allow the owner of a copyright (eg a movie studio) to create a notice to send to people who breached copyright by downloading the movie, or by allowing others to then upload the movie. At this point the copyright owner only knows the downloader’s IP address and their internet service provider (ISP) – not the person’s name or contact information. The ISP is obligated to forward that message on – hence the term notice and notice.

The concept of notice and notice sounds good on the surface. But no matter whether you side with the copyright owner or the downloader – it doesn’t work in practice – and doesn’t help either side.

If a consumer saw a notice that simply said:

We own movie X, we know you downloaded it, and your sharing software is allowing others to download from you. Delete it, and we will leave you alone. If you don’t, we might sue you.

most consumers would comply.

But in what I’ve seen, the notice ends up being a long email with that message buried closer to the end than the beginning. So the consumer’s first inclination is to delete it assuming it is just another unimportant message from their ISP that they can ignore along with other marketing, scam, and quasi- spam emails.

Like any email, if you don’t get the message across immediately and bluntly, it won’t be read.

The email tends to be long as the copyright owner must explain who it is, why they are emailing, and what they know about the consumer’s behaviour to convince the consumer it is legitimate, and that the consumer needs to stop. ISPs tend to add their own message on top of the copyright owner’s email. They want to clarify what is happening, who it is coming from, that they are obligated to send it on, and they won’t reveal the consumer’s identity unless ordered by a court. And both of those messages might be in both official languages.

That is understandable, but until those messages are structured to start off simple and blunt, and explain all that below it, they won’t be effective.

Comments

  1. David Collier-Brown

    In the earlier Tek Savvy case, the court supervised the notices closely, but there were several reports soon after that notices sent to customers of Tek and other ISPs were “speculative invoicing”.

    I would welcome proper regulation of the language used: It’d suggest it be compulsorily short, to the point, blunt and ordinary English.

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