Arrrgh, there be pirates in Canada, and you may even know them

ARRRGGHHTell us something we don’t know, Mendelsohn! OK OK, we all know illegal downloading rulez in Canada. But as of now, it seems like the copyright owners are getting serious about fighting online piracy in Canada. Do you think that they won’t come after you if you just downloaded one little TV program? Well, I’ve got a real surprise for you.

So let’s make a couple of points before I tell you a bedtime story. First, the timing of this is, what, interesting? As my readers know, a few weeks ago the new copyright law came into effect. As I wrote in that post (see #5), part of the new law is a $5000 cap on damages for individuals for non-commercial infringement. So you’d think it would hardly be worth it for the copyright owners to go after these downloaders. And as Geist says, “in fact, it is likely that a court would award far less – perhaps as little as $100 – if the case went to court.” So it would seem counterproductive to sue; most lawyers won’t even get out of bed for $100.

So why now? It seems likely that the copyright holders want to test out the new law. They want to see how ISPs will respond, and how the Courts will respond. Or is it just the beginning of intimidation on a massive scale to try and curb the tide of illegal downloading? If it’s that, good fucking luck. [/checks Breaking Bad download progress]

Now it’s time for your bedtime story. You think that just downloading one measly episode of a TV show won’t put you on someone’s radar? Well, think again. Late last week, I received an email from a good friend of mine and now potential client*. This person, let’s call them “Mr. X” for fun, received an email from his ISP, let’s call them “Vidéotron” for fun, with the ominous subject line “Illicit Use of your Internet Access”. The illicit use? Downloading a single episode of How I Met Your Mother. The email is legen… (wait for it) …dary. Let’s break it down.

Madam, Sir,

We received a complaint affirming that activities associated with your IP address may infringe intellectual property rights of a third party.

Thus begins the greatest CYA letter you’ll ever read. The lawyers always go with “may”. Can’t have any false accusations. From a technical standpoint, there is a very important point to be made here about the line “your IP address”, and it’s one I’ve made before. Mr. X is the account owner, so it makes sense he got the email. But Mr. X lives with many other people. It is not necessarily Mr. X who may have infringed.

We would like to remind you that the reproduction of protected material constitutes an infringement to the exclusive right of its holder. This behaviour could expose you to legal action from this third party and to a judgment to pay damages. Generally, you must obtain the permission or rights in order to reproduce any protected material.

This is all actually pretty true! They’ve got some good lawyers over there. It seems almost friendly though. It’s like, “yo, we’re just telling you some facts you may not be aware of, but probably are.”

Please note that Videotron will not take any action against you, but if legal actions were to be brought against you by the plaintiff, we would have no other alternative except than hold you responsible for any damages you may have caused.

It’s not our fault! We’re just doing what some giant media company is telling us! We wash our hands of the whole thing!

And let’s talk about “any damages you may have caused.” If anyone out there can tell me how much money the copyright owner lost by one person downloading HIMYM (which, btw, you can watch free online), you’re a better lawyer than me.

We thus ask you to cease any activity that may be considered an infringement of a third party’s intellectual property rights.

A wise (computer-generated and fake) person once said that “asking is just polite demanding” (warning: link has auto-played sound). I am not sure that applies here. Videotron is asking nicely that Mr. X ceases. It’s not the same as “stop it or we’ll cut off your internet access.” That does kind of reflect the state of the law in Canada though. And I like the “please stop the things that may be infringing” vibe of the request. Better to be safe than sorry according to Videotron. Plus your downloading is really killing our bandwidth.

Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law. If you want to know who the plaintiff is, you can search on the internet who is the copyright owner of the material referenced in the complaint.

I really love this. “We got a complaint, we can’t tell you from who, but hit the Google and you can easily find out!” (it’s 20th Century Fox). Don’t blame us!

Thank you in advance for your cooperation.

Yours truly,

It almost could have said “warm regards,”.

The email also has a lot of technical info. The name of the downloaded file, the date, the filesharing protocol, and very specifically, the infringing IP address and infringing DNS. At some point, Videotron had to convert that data supplied in the complaint to Mr. X’s customer information. What the email doesn’t mention is whether they turned that info over to 20th Century Fox. I guess we’ll see.

Bringing it back to the new copyright law for a second, you may think that this email was reflective of the new notice and notice scheme that Bill C-11 has as part of it. But when the new law came into effect, the notice and notice provisions were put on hold so that we could get some regulations as to how the scheme will work. So I guess Videotron is just getting in some practice.

It remains to be seen whether a huge wave of lawsuits is really coming against individuals like Mr. X. In fact, the whole point of that $5000 cap was to discourage those lawsuits. Looks like copyright owners may have a different idea.

*note to the Barreau du Québec – Mr X. gave me permission to write this and approved it prior to posting

Posted in: Copyright
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16 Responses to Arrrgh, there be pirates in Canada, and you may even know them

  1. steve says:

    The entertainment industry is overflowing with money. Content, Content, Content has replaced location location location. Therefore like the King cutting off the head of the pleb who looked him in the eye, they just cant help themselves. They see mythical sales in the Billions if they could just capture the downloads. What they can not seem to understand or the people they pay to explain to them refuse to say is ” content has a extremely elastic price band”. In fact Adam Smith would say “the invisible hand will always steal content.” Now their advisers are taking home six and seven figures from telling the content kings that ecomomic models show they are only making 20% of the gross yeild. It is their job to lie to the client, otherwise they would have no client.

  2. Hadulf says:

    You see, I remember this whole part about “enabling” people to download…and the definition of it. Or most of it. ISP’s are, in the end, enabling me to a certain extent. They do not provide the direct enabling service but I gain access to it through their service/product.

    I know that’s going too far and technically, “enabling” does not stick to the ISP’s. Logically though…

    • allen says:

      That’s good thinking Had! No joke, I tried to make that exact same argument in my Masters thesis.

      Problem is, the enabling provision as it was enacted includes the phrase “primarily for the purpose of enabling acts of copyright infringement”. It’s that word “primarily” that saves an ISP imho.

  3. brl says:

    Since I’m not an intellectual property lawyer, it seems a little bit unfair to expect me to always know the difference between infringement and lawful use of content. Television networks stream their own programs on the web, for free, on demand. Independent music artists upload their music to The Pirate Bay, while more established mainstream artists publish their newest music videos for free on Vevo channels. Some people who publish books, give away an electronic version for free.

    Even this blog posting itself was reproduced from the hosting server to my computer. Do I have permission to do that? How should I know? I didn’t pass the LSAT (or attempt to). At least this blog includes a Creative Commons license which helpfully attempts to explain what Allen gives me permission to do with his intellectual property. I’ll get my lawyer to look that shit over next time I drop by for advice on lawful use of the Internet (i.e. Am I going to jail for all those *other* blogs I read, the ones *without* licenses).

    The only reason the Internet can exist at all is because there is a general expectation that if something is freely accessible then go ahead and use it. If Hollywood and their lawyers believe that somebody is illegally distributing their property, then the most reasonable first step is to assume good faith and politely assert rights and ask them to stop. I’m not proposing this as a more effective copyright enforcement strategy, because it’s not. It has near zero probability of discouraging piracy, just like every other plan which has been attempted so far. I’m suggesting this as a way for big media to still have some dignity and credibility left after the dust settles in a war they’ve already lost.

    PS: This comment is Copyright © 2012 some dude from the Internet, All Right Reserved.

    • allen says:

      Great comment brl. And really a valid point, it’s hard to tell what may be legal or not. But as the old maxim goes (and this is actually true in a court of law) “ignorance of the law is no excuse.” Fucking lawyers.

      • brl says:

        In the case of the letter received by your friend, it’s not even about ignorance of the law. The ISP deliberately refuses to disclose the key detail in determining the legitimacy of the complaint: the identity of the entity asserting ownership.

        Madam and/or Sir,

        Somebody has complained to us that you are in violation of their legal privileges. As you know, laws and consequences exist. Since we are not permitted to snitch you out unless a court tells us to, just to fuck with you we’re also not going to tell you who is accusing you of doing something wrong. As you’re probably a total idiot, we’ll attempt to justify this as an appropriate reciprocation of privacy and inform you of your option to use your imagination to figure it out. Good luck determining if this secret accusation has any merit, and we hope you are able to resolve this issue without further legal intervention since we are unable at this time to provide DSL service to you in prison.

        we’re watching you,
        Your ISP.

      • allen says:

        Nice brl. +1 for that

  4. Tom Maow says:

    Hell(o) there,

    what is actually funny is that in a linked page of the Huffington Post, you can see that the 2 most downloaded artists in the top 2 music downloading countries are Drake and Kanye West.
    This is as concerning as the chances an ISP sues me for downloading good music! (In another life and under different laws of course)

  5. Krzysztof Majewski says:

    “What the email doesn’t mention is whether they turned that info over to 20th Century Fox.”

    What about this part of the letter:
    Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law.

    Unrelatedly, the part of the letter I don’t get is this:
    if legal actions were to be brought against you by the plaintiff, we would have no other alternative except than hold you responsible for any damages you may have caused.

    Why would they hold Mr. X responsible, given that the putative legal action is brought “against [him]” and not “against [the ISP]”? And what exactly would it mean to hold him responsible? I guess they’re saying, “If 20th Century Fox sues you, we will shut down your Internet connection to cover our [joint & several] asses” ?

  6. Dena says:

    “Arrrgh, there be pirates in Canada, and you
    may even know them | Allen Mendelsohn” modernwarfare2forums
    was indeed genuinely enjoyable and enlightening!
    Within modern universe honestly, that is challenging to carry out.
    Thanks, Sean

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