Notices! Online Pics! YouTube! It’s the Canadian internet law jurisprudence month in review

mmm, dusty

The month of May 2017 will go down in the annals of internet law history for having not one, not two, but five (three, sir!) three cases of note about internet law in Canada. Well, maybe not “of note”, but noteworthy. Oh crap, I just looked and one of the cases is actually from April. Well this is starting poorly.

1. Voltage Pictures, LLC v. John Doe (Notices!)
First up is another in a long series of Voltage Pictures cases. Or it’s the same one. I can’t even keep track anymore. Search Voltage on this site and you get a whole bunch of results. Suffice it to say, Voltage is suing people for illegally downloading their movies. But you knew that already, and are frankly probably pretty tired from hearing about them.

BUT! Barry Sookman says this is an important ruling! It is… a ruling. It is a ruling about if, and how much, ISPs should be paid for keeping records of illegal downloaders. That’s… a ruling. Yawn. It is kind of interesting because it talks about how the law has changed because of the notice and notice regime. So that’s something I guess?

SO! Some background. Let’s say you are a copyright holder. And you know people are illegally downloading your movies. You know their IP address, but not their name. You go to the court and say “this ISP owns that IP address that downloaded my movie, please Mr. or Mrs. Judge, order Rogers (for example) to tell me who that person is who was using that IP address.” You are asking for a Norwich Order. It’s fun! I explained all this in a previous Voltage post. Surely you remember.

So in the lower court, they granted a Norwich Order and told Rogers to cough up the subscriber info of the persons who illegally downloaded (allegedly!) a Voltage movie. Probably The Hurt Locker. It’s always The Hurt Locker. Anyway, the lower court said sure, we’ll grant your Norwich Order, but PAY UP SUCKER. Rogers demanded lots of cash, and the court said sure, because it’s ok to cover costs when a Norwich Order is granted, that’s established law.

This Appeals Court, however, said slow down kidz. The  new Notice and Notice regime (which for sure you know about because it’s my most famous post) sort of changed things. Under s. 41.26 of the Copyright Act (which is part of the N+N regime) the ISP must forward notices and keep records. The Court summarizes what an ISP must do:

Overall, putting the two sets of subsection 41.26(1) obligations together, the internet service provider must maintain records in a manner and form that allows it to identify suspected infringers, to locate the relevant records, to identify the suspected infringers, to verify the identification work it has done (if necessary), to send the notices to the suspected infringers and the copyright owner, to translate the records (if necessary) into a manner and form that allows them both to be disclosed promptly and to be used by copyright owners and later the courts to determine the identity of the suspected infringers, and, finally, to keep the records ready for prompt disclosure.

BUT! That’s a lot of work. The court  also says of 41.26: “These obligations arise only upon the internet service provider being paid a ‘lawfully charged’ fee”.  The Court then hits the big question:

In this case, what fee can Rogers charge?

The government was allowed to set fees, but it was lazy and never got around to it. However, the way the law is written, it says the government could set the maximum fee. Meaning, according to the Court, the minimum fee could be zero. The whole point of N+N is that infringers should be flogged (or something). The ISPs play their part in that regime, and if they have costs, screw ’em. Or:

Inherent in this legislative choice is the view that leaving the cost of the subsection 41.26(1) obligations with internet service providers, at least for the time being, is not unfair. After all, depending on the elasticity of demand, the costs can be passed on to the subscribers of the products of internet service providers, some of whom are the suspected infringers.

Read that bolded part. Are you shitting me? No worries that Rogers will pass along the costs to its customers. They’re nice! Anyway, the Court says Fuck Rogers in the Ass:

Throughout the hearing before us, Rogers submitted that it ought to receive reasonable compensation for what it does and that it should not be forced to provide services for free. This may be so in a political, commercial or moral sense. But, as the foregoing analysis of this remedial legislative regime suggests, this is not so in a legal sense.

The Court does throw Rogers a bone:

The internet service provider can charge a fee for the actual, reasonable and necessary costs associated with the act of disclosure. The act of disclosure does not fall within subsection 41.26(1) and, thus, is not subject to the “no regulation and, thus, no fee” default rule in subsection 41.26(2).

Or not:

the costs associated with a motion for a disclosure order are likely to be minimal.

Anyway, back to the lower court. They said sure, Rogers can charge $100 per hour to do all the work to get Voltage that customer info. That’s less than half my hourly rate! Sweet! But the Appeals Court said no way:

Allowing an internet service provider at the point of disclosure to charge a fee for these costs would be an end run around the legislative decision that these activities should not be remunerated at this time…

paragraph 2 of the Federal Court’s order, which requires the appellants to pay Rogers a fee of $100 per hour plus HST for its services, must be set aside.

So what should Voltage pay? The Court says we don’t have enough information to make that determination, so the answer is NOTHING. Ha! They literally write “We simply do not know.” In future cases, maybe ISPs will ask for reasonable (minimal fees), and they might get them. In this case, ALSO AND BTW Rogers has to pay the legal costs of Voltage. Yeesh.

Superterriiffic Happy Funtime Analysis Hour

In a battle between Voltage and Rogers, root for the meteor.

2. Trader v. CarGurus (Online pics!)

OK so this is the one from April, but it must have slipped through the cracks while I was drinking. I do need to write about it though. It’s only an Ontario Superior Court of Justice case, not any appeals court, but it’s pretty juicy. Basically, if you steal pictures off the internet and use them on your own site, you’ll need to pay up!

CarGurus is a platform for selling cars online. They scrape  auto dealers’ websites for pics and listings of dealers’ cars. They had been doing it in the USA for years. But when they entered Canada, they found that Trader, who runs the Autotrader website, did things a bit differently. They actually went to dealers and took their own pics as part of a special service. The pics were on both the dealers’ websites and the Autotrader website. And with scraping from the dealer’s websites, they ended up on the CarGurus site. Over 150,000 of them! Autortrader was not impressed, and sued.

The Court asked a series of questions, which I will answer with my usual quick wit snark:

Are the photos in question protected by copyright?

Duh, that’s what copyright is. Pictures are copyrightable!

Does Trader own the copyright in the photos?

Duh, they took them!

Did CarGurus infringe Trader’s copyright in the photos?

Duh. The Copyright Act is very specific and says only a copyright owner can take a “work” (the term used for a copyrightable thing in the Act) and “make it available to the public by telecommunication.” Posting them online is exactly that.

Is CarGurus protected by the “fair dealing” defence?

Give me a fucking break.

Is CarGurus protected from statutory damages as the provider of an “information location tool”?

No snark, this is at least kind of interesting. Section 41.27 of the Copyright Act  is this thing where you cannot sue an “information location tool” for copyright infringement. This was designed to protect innocent(?) third parties like Google who just allow you to find information. The court does a nice analysis of why CarGurus was “not merely acting as an intermediary”. The users had to contact CarGurus to find out where and who the dealer was that was selling a particular car. The site was active in its information presenting to its users. So this defense is a no-go.

If statutory damages are to be awarded, what is the appropriate quantum? Can the court order an amount that is less than the $500 per work minimum?

Holy crap. Trader asked for statutory damages under the Copyright Act, which have a minimum of $500 for commercial infringements, so $500 x 152,532 pics = $76,266,000. Ch-ching!!! But the Court says slow down there Missy, the Copyright Act also says the Court can do what it wants, so the Court decides $2 per photo is more reasonable, for a total of $305,064.

Is Trader entitled to an award of punitive damages?

Fuck and no. CarGurus was actually pretty cool and didn’t show bad faith. They sought legal advice when they entered the Canadian market. They didn’t take pics from the Autotrader website, only the dealer’s websites. The took down photos when asked. And Autotrader was skeevy because they never even told CarGurus they were taking those pics and putting them on the dealer’s sites before they sued.

Is there any basis for a permanent injunction against CarGurus?

No don’t be silly. CarGurus as mentioned was pretty cool about the whole thing:

CarGurus has removed all of the Trader Photos.  It has ceased indexing Dealer websites.  It has undertaken to Trader that it will not reproduce any future Trader photos obtained from CarGurus’ feed providers, if Trader provides a means for CarGurus to identify those photos

Superterriiffic Happy Funtime Analysis Hour

Don’t steal pics off the internet and use them on your own commercial site. Good lesson!

3. Unlocatable Copyright Owners – File: 2016-UO/TI-08 (PDF) (Youtube!)

Is that not the catchiest title of a case you’ve ever heard? I am not even sure if this counts as “jurisprudence”, but it’s fascinating nonetheless. This is a ruling of the Copyright Board of Canada. Despite their 1995-looking website, they are actually important and do a lot of things! Under the Copyright Act, the Board has a big role, setting tariffs and making decisions and just generally being involved in applying copyright law in the real world.

Here’s a neat thing. Let’s say you want to use a copyrighted work in something you are making (like your movie), and you are willing to pay the owner of the copyrighted work, but you just can’t figure out who they are or you can’t find them. You can make an application to the Board under section 77 of the Act and the Board can say sure go ahead and use it. Man, we are learning copyright law today. Even I didn’t know about this!

So this guy was making a documentary (entitled “Ceux qui font les révolutions à moitié n’ont fait que se creuser un tombeau”), and used three video snippets from YouTube in the doc. The doc was shown in theatres, and will even have a DVD release. He really tried to find the copyright owners:

The Applicant has tried to locate the rights owners of the videos using many methods. He first tried to communicate with the individuals or organizations that posted the videos on YouTube, but was unsuccessful. Then he contacted other organizations, including OMN, an Arabic Moroccan magazine, True Class Productions and demainonline.com, likely to hold the rights to the videos. Their names appeared either in the videos or on the video’s YouTube page. None of them were able to identify the rights owners of the videos.

So he asked the Board if he could have a license to use the videos. Sadly, the Board said no. Sad! See, section 77 refers to a “published” work. And the Copyright Act defines “publication” as excluding “communication to the public by telecommunication.” As we learned earlier in this post (see how that works?) putting something on the internet is communicating to the public by telecommunication. Specifically, there is a discussion about how the new (from the 2012 Copyright Act updates) “making available” right is also part of communicating to the public, and YouTube on the internet is making available. So the point is the Board does not have the power to grant the license under s. 77, because the videos were not “published”. Sad!

Superterriiffic Happy Funtime Analysis Hour

As mentioned, sad! The whole purpose of s. 77 would seem to be to allow for this circumstance. BUT! The Board actually recognizes this, and dives deep (well four paragraphs, but for the Board that’s deep). They feel bad too! They talk about how the Copyright Act provision was drafted to make Canada be in line with the Berne Convention. Also, it is likely no one ever predicted YouTube:

It appears that section 77 of the Act was not intended to permit the broad distribution of works that had not been previously made public, such as private writings. However, since this provision was enacted well before the use of the Internet by the public at large, the possibility that there may be works that have been readily made available to the public, but not “published” according to the definition of the Act, was likely not contemplated.

Sad!