Mediacheck

Mass File Sharing Lawsuits Could be Coming

Lucky for you, downloaders, there are caps on the damages you're liable to pay.

By Michael Geist, 4 Dec 2012, TheTyee.ca

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Did you know there's now a maximum liability of $5,000 for non-commercial infringement? Download image via Shutterstock.

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The Canadian Internet community has been buzzing for the past week over reports that a Montreal-based company has captured data on one million Canadians who it says have engaged in unauthorized file sharing. While that represents a relatively small percentage of Internet users in Canada, the possibility of hundreds of thousands of lawsuits over alleged copyright infringement would be unprecedented and raise a host of legal and policy issues.

The prospect of mass lawsuits will be of particular interest to the federal government, which just completed a major round of copyright reforms. The new copyright bill established a cap on damages that was explicitly designed to dissuade would-be litigants from targeting individuals. In fact, during hearings into the copyright reform bill, Members of Parliament were given assurances that the industry had no desire to launch file sharing lawsuits.

The practice of suing individuals for copyright infringement arising from file sharing started in 2003 in the United States, where tens of thousands of people have since received letters alleging infringement. The letters typically claim that liability could run into the millions of dollars based on U.S. rules that provide for up to US$150,000 per infringement. Recipients are encouraged to settle for several thousand dollars, a steep price to pay for a few songs or movies.

Canadians first encountered file sharing lawsuits in 2004, when members of the Canadian Recording Industry Association filed actions against 29 alleged file sharers. The Canadian initiative was a failure, however, as a federal court judge expressed concern about the privacy implications of the lawsuits, doubts about whether downloading music constituted copyright infringement, and misgivings with the evidence tendered by the industry.

The $5,000 movie

With an eye on the ongoing U.S. lawsuits, the Canadian government made reforms to discourage file sharing lawsuits against individuals a priority. For example, Industry Minister Christian Paradis told the House of Commons "we are concerned about the threat of major penalties that hang over Canadians who infringe copyright for non-commercial purposes. Currently, those who have been found to violate copyright can be found liable for damages from $500 to $20,000 per work. If people illegally download five songs, for example, they could theoretically be liable for $100,000. In our view, such penalties are way out of line."

The solution was to change Canada's statutory damages rules by distinguishing between commercial infringement (which still carries liability of up to $20,000 per infringement) and non-commercial infringement, which now features a maximum liability of $5,000 for all infringements. While $5,000 is still very expensive for a downloaded movie, the law permits judges to award damages as low as $100 in such cases.

In fact, the law instructs judges to consider "in the case of infringements for non-commercial purposes, the need for an award to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff."

Rights holders can elect to pursue actual damages from copyright infringement instead of statutory damages, but those are likely to be even smaller in the case of a downloaded movie or song. The net effect, as the government indicated in its advisory on the bill, is supposed to be that "Canadians will not face disproportionate penalties for minor infringements of copyright."

Lawsuits possible

Despite the government's intentions, the prospect of hundreds of thousands of lawsuits is apparently still a real possibility. With the law instructing judges to award as little as $100 for all non-commercial infringements, the question is now whether these cases will lead to clogged courts as individuals rely on recent legal reforms to challenge demands for thousands of dollars to settle infringement claims.  [Tyee]

Read more: Politics, Science + Tech

22  Comments:

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  • rantnic

    24 weeks ago

    ANYONE CARE TO JOIN?

    The Montreal-based company that says it has captured data on one million Canadians acquired this data how? By infringing on our privacy without legal warrant?

    Just as their threat of the $5,000.00 movie is meant to scare the s*it out of those who might even pay them without due process, our "Class Action Suit" against them for illegally collecting data on our internet usage could bankrupt them.

    If, when, and only once there is legislation in place, allowing them to surreptitiously collect our private information without consent, will they be exempt form our retaliatory "Class Action Suits".

    In a free country no government should give a single private company, exclusive and free use of illegally collected information.

    Should a government enact some sort of legislation in this regard the Montreal-based company would have to destroy all of it's presently compiled information so as to be on a level playing field with any legal and fair competition that may arise from the new legislation.

  • Hakuin

    24 weeks ago

  • pwlg

    24 weeks ago

    mass

    Given the backlog in our courts I cannot see any advantage in filing mass lawsuits. With good legal advice those charged could use legitimate means to prevent these lawsuits ever getting to court due to the ability to delay, delay and delay.

    It is unfortunate that the movie industry, operating like a dinosaur, finds itself locked into the early 20th century (silent film era) in terms of distribution and access or availability to their product.

    The movie industry blames the downloaders but perhaps they have more responsibility to the state of affairs (loss of most video stores etc) than the downloaders. Instead of being ahead of the curve these industry guys preferred to follow their 1920's M.O.

  • pwlg

    24 weeks ago

    rantnic

    I myself wondered how this company in Montreal was able to access the information they reportedly have obtained without acting illegally.

    For some reason governments have not been very proactive in ensuring our rights and freedoms, especially our privacy, when it comes to the internet.

    The amount of data mining and collecting has gotten out of hand. Even small companies have applications within the POS systems that collect credit and debit card numbers and information without having any adequate security safeguards in place to protect the personal information they collect.

    I have seen clerks in small and large stores enter information off of my cards and when I catch them doing this I question them and ask that they remove this information. A few days ago a clerk told me that the system wouldn't allow them to complete the sale until all information was recorded.

    Is there something wrong with this?

    In the last 3 years my credit card has been compromised twice, I use it very little, and my debit card was compromised once.

  • DavidG

    24 weeks ago

    rantnic and pwlg

    I don't think you understand how this technology works.

    They are harvesting data via bit-torrent. If you are using an "open" tracker, like Pirate Bay, where you don't need an account, they can harvest your IP addresses. Anyone could - there is no privacy there.

    An IP address and date/time is enough to identify someone. They don't have a name, address, etc. But with an IP address, they know who your ISP is (Telus, Shaw, Rogers, etc). And your ISP knows who had what IP address at what time.

    I believe they still have to go back to your ISP and say, "Who was had IP address xxx.xxx.xxx.xxx on Tuesday, November 12th, at 10:14am". If that is the case, they still have a lot of work to do.

    If you still think this is a violation of your privacy, then you need to get off the internet. When you browse the internet, you are tracked via IP addresses, cookies, etc. If you are logged into Facebook, and there is a Facebook icon on the page, advertisers can link what you are looking at to your profile.

    The assumption of privacy on the internet is just that, and doesn't really hold up in real life.

  • igbymac

    24 weeks ago

    DavidG

    Good points but it entirely misses the mark in the general operation of things in the layman's world. One simple question: Why all the need for passwords and encryption etc if everything is publicly available or, at least, not private?

    There is a presumption of privacy on the internet. Unfortunately, that is completely without merit. It's like the general presumption that we live in a democracy or that Canada is a sovereign state. It's what we are told (propagandized) or lead to believe, but it is so removed from the actual world that those who understand such things find it laughable; it is just as you, DavidG, understand that nothing is private on the internet for the typical user. (But that is the status quo's M.O., and they bank on our ignorance every moment of the day.)

    Further, the reason the state allows them to use the cover of chasing copyright infringement for the entertainment industry has little to do with WHY they are enforcing copyright. Suffice to say follow the money.

  • DavidG

    24 weeks ago

    igbymac

    What passwords and encryption do you use? I have a password on my PC, and I expect data to stay safe there (within reason).

    If I log into Facebook, I expect that my privacy will be respected according to what is provided in the privacy notice, and terms of use. I know that most people don't read them (and I only read them sometimes).

    Computers, and the internet, are sophisticated technologies. There are basic laws to protect people from being swindled, but personal data is not considered valuable like the contents of your bank account. And it was always thus, even before the internet. Unfortunately, 98% of the people out there are unsophisticated with regards to the internet, and computers. People need to be smartened up, or computers dumbed down.

    Now... regarding whether we live in a democracy, I think that's a loaded statement. Define democracy. The Soviet Union was a democracy, because people voted. True, they only had one candidate to vote for, but they voted. True democracy, or to be governed by the demos, or people, is untenable.

    If you want to argue for more democracy, I'll paraphrase Winston Churchill, who said that the best argument against a democracy was a 5 minute conversation with the average voter. Everyone wants services provided, but no one wants to pay. Most people believe in global warming (and that it's caused by humans), but they don't think it's up to them to do something about it.

    The other word that has "demos" as it's route is "demagogue" - a populist leader who panders to the desires of the many. Tyranny of the majority is a frightening place where the rule of law falls by the wayside.

    As for "sovereign states", read Hobbes, "The Leviathan". We gave up some freedoms for a civil, and relatively safe, society. Nation-states have to do the same.

    Any assumption that we're "free", or that Canada is free to act as it wishes on the world stage, holds as much water as the presumption of privacy on the internet.

  • igbymac

    24 weeks ago

    quickly now...

    democracy: "of by and for the people"

    Democracy is completely tenable, but not if it can't register in our captured minds. Think global, act local....it is about accountability. The Greeks use to determine the heads of the army and the city waters, for example, by lottery. They presumed competence because they didn't go out of their way to make the population as ignorant as ours does.

    Churchill was a war monger and a racist; needless to say an opportunist of epic proportions. Though he may be right.

    Hobbes is a sham, an effective con and a great read. I've never signed up for any social contract, nor has anyone else. It is a nice piece of fiction though, an interesting idea. Nor did I give anyone the right to contract for me, so the social contract point needs no further attention.

  • DavidG

    24 weeks ago

    re: quickly now...

    Right - by the people, and for the people. But we don't really expect every citizen to be participating in every decision. Too many cooks, and all that. And again, tyranny of the majority.

    So we elect representatives to do it. And sometimes they do things we don't agree with - some necessary (like raising taxes), and some not necessary (signing secret trade agreements with China).

    If you want to suggest we break the country into small communes where every common decision is made by committee but with a national legal framework, I'm all for it. It would be communism, within a market economy.

    As an aside, it's funny how people get politics and economic mixed up. The Soviet Union was a totalitarian government with a state-capitalist economy. There wasn't much communism in there at all, except for a coating of syntactic sugar. And when the Americans start using the term Socialist, I shudder - they're being demagogues, because that's how you do it in the US.

    Churchill was elected after war was declared. Unless you want to argue that he egged the Germans on while a Member of Parliament via his "the Nazis are bad", and "we should be rearming". In addition to winning the Nobel Prize in Literature, and being an amazing historian, he also the source of many great quotes, even better than Mark Twain. Racist, I am not sure. Many people were back then, maybe even more than are racist today. But to condemn him for having the common attitudes of the day is like saying he heated his house with coal.

    Hobbes argued that you implicitly agreed to the social contract when you accepted the inheritance of previous generations. Their wealth was amassed within the social contract, and acceptance of that wealth implies acceptance of the contract. Hobbes always said you were free to refuse it, and to be bound only by the rule of nature. But then anyone could do you harm, with out fear of societal repercussions.

    Locke arguments amounted to much the same - most philosophers went back to some "State of Nature", and they were all pretty pessimistic about it, except the anarchists (but they're all too busy getting piercings these days to pay attention to much).

  • freewilly

    24 weeks ago

    @Hakuin

    Good article!
    You would think so many Canadians are downloading pirated music and software, the industries that pushed these crazy laws, would have come up with a better way of protecting their 'products'. But no, they are going to put the costs on taxpayers and clog up the courts with frivilous infringements. As the article states we are following the US.
    Noone seems to care about all the crap (ads, spyware bots, rogue cookies) end up in my browser's cache. I look at it, the same way someone breaks into a house.
    And then there are the idiots that will say you left your front door open.
    In a few years the internet, will be commercialized the same way television was hijacked by the tobacco industry.
    What irks me the most is our government hiring private companies to police the internet, another cost .

  • igbymac

    24 weeks ago

    politics and economics mixed up

    ... it is the art of words that has the people confused. Until you define terms specifically, they can easily be seen as one and the same.

    Churchill is like essentially every other head of state, a proven servant to power. Had the Nazis won the war, he'd be demonized, accordingly.Arguably with cause, mind you. But to the winner go the spoils.

    Whatever Hobbes is railing on about, his foundation of tacit agreement is misstated and, without some luck, so must be his conclusion. Easy to rebut -- one doesn't tacitly agree to being an environmentalist because they inherit a parking spot on the earth.

    The coercive empire of culture rains down, and we are awash by it whether we like it or not. We are ruled by naked power with the pretense of legitimacy. I know, oxymoronic. But so is our very upsidedown world, where people and the life force of our world do not matter when they are engaged in a showdown between centralized power and wealth.

  • freewilly

    24 weeks ago

    rogue networks

    Back in the day, there were thousands of private BBS's (bulletinboards). many were available for a small fee and others were free.
    It was impossible to control piracy as they mainly connected via telephone modem. As primitive as it was, BBS's could gate data to other boards and the net.

    Gateways to send data via the internet existed but setting them up and paying for a T1 line was expensive. Most of the data was sent via mail protocol. Universities and libraries have had internet access for decades
    Now we have millions of wireless routers and a means to create more networks outside of the internet (Internet protocol)
    A bulletin board is a fancy file server. Even harddrives by themselves on a wireless network are file servers.
    It is possible to create a private network unrelated and disconnected from the internet (Internet protocol). It is now, but it costs a bundle to create a private network serving a small village or town.
    If anyone is interested in router software they can checkout 'dd-wrt' to supercharge their old wireless router. With a little ingenuity and lots of reading its possible to thwart the mainstream as it exists. Build your own networks,turn your old routers into repeaters and say goodbye to the Internet, until rogue networks become mainstream.
    At least one can create a world where the government and the police can't get to you.
    A private place in a mess of circuitry.

    I remember when some of my peers, raved about how wonderful the internet would be (idiots), I never beleived it, but I adapted earlier than most.
    So here we are, gov and big business has polluted it, like they did TV. Thats another constant in this universe.

  • snert

    24 weeks ago

    pwlg

    If the costs come out of the $5,000 then there will be no money left. The lawyers will gobble that up with a couple of phone calls.

  • chaiwalla

    24 weeks ago

    The real issue

    What the content providers aren't getting is that they need to look at their distribution model and their pricing as a solution instead of using the courts to sue their customers.

    There are some new movies out that I would like to see. I would gladly pay a few bucks to stream them onto my TV. This is not an option. I have to go to a theatre to see them. For me, this means a ferry ride. Either that, or I can download the films for free. It is a ridiculous choice.

    I just bought myself a new 64 GB iPod. To legally load it with even 50 GB of music would cost around $20,000. If albums were a dollar or two, I'd pay it.

    These folks have to stop blaming the downloaders and look at fixing their broken business models.

  • featheredfriend

    23 weeks ago

    freewilly and chaiwalla

    Please. It is not the job of artists or their representatives to do a better job of protecting their product from unauthorized downloading ...any more than it's your job to do a better job of securing your house so that thieves can't break in and steal your stuff. If an artist or their rep hasn't given you permission to take their work, then it's not yours to take. Period. These "content providers" of which you speak are companies that artists have consensually agreed to do business with -- a deal in which the artists provides a share of the profits from their work in exchange for the services the company provides. But if you keep ripping off the content, then the artist doesn't make any money for the service provider and s/he loses his/her contract for services. Any which way, you're screwing the artist, so please stop dressing it up as thumbing your nose at some faceless corporation. Trust me. The corporation will just find some other way to make money. Like selling you overpriced coffee beverages or some other ridiculous thing that you never complain about paying for. If you don't like taking the ferry to go see a brand new movie, move to the mainland. But if you're willing to take a ferry to go to the mall, the Superstore, or whatever other major corporation you need to give your money to, then please take the ferry to see the movie too. And I'm sorry, but nobody's going to sell you an album for a dollar or two. It still costs in the neighbourhood of $30,000 to make one. If you don't like the music enough to pay 10 bucks for it, don't own it. Simple choice, really.

  • Dave50

    23 weeks ago

    clog up the courts plead not guilty

    lawyers are scum and will file suits just to get their 15 minute of fame and money. Good luck , just tear the letter in the garbage what are they going to do go after ever person that file share, two people could clog the courts until the next century , this is just a vale treat by some idiot, ignore these fools.

  • Kreditanstalt

    23 weeks ago

    The rule should be: if you

    The rule should be: if you put something in the public domain, you lose all rights of sole possession. Period. Problem solved.

  • igbymac

    23 weeks ago

    Kreditanstalt

    Agreed.

    I think the use of copyright and patents must be retooled to benefit society in the medium and long run while protecting the creator for truly groundbreaking work. Pumping out another Hollywood flick or Idol tune does not qualify under the most lenient of standards as far as I am concerned.

    Of course the status quo loves the dirstraction element and the marketable celebrity of such absurdities.

  • DerrickA

    23 weeks ago

    The perfect cover for extortion?

    What's to stop content providers from just gathering Canadian IP addresses at random, and claiming they were engaged in illegal filesharing activites?
    Shouldn't any such "evidence" be gathered by impartial law enforcement agencies, and not those who stand to make millions from shaking down thousands of Canadians?
    Considering the *ease at which locked home WiFi routers can be hacked, you could easily be accused of downloading a song that your neighbor's son downloaded using your connection. Ditto if you own a coffeeshop or hotel that offers WiFi to customers.

    *
    http://www.youtube.com/watch?v=0GncJTZAEtY

  • RockyRacoon

    23 weeks ago

    The fact is the ISP provider gives them the information.

    Skanks. And YOUR the paying customer.
    RR

  • igbymac

    23 weeks ago

  • bcwoodcarver

    23 weeks ago

    feathered friend

    most every song written today is ripped off from someone else. All the major stars in the music industry today steal the melody or lyrics from some unpaid songwriter in some other time. led zepplin rollingstones,etc., all stole their licks from the great blues artist of the early 20th century, who in turn, stole it from the slaves and folk singers of the 19th century.