Stuart Freen is a JD candidate at Osgoode Hall Law School.
While most of the media coverage of Bill C-32 (aka the “Copyright Modernization Act”) has focused on either the increased protection for digital locks or the new categories of user rights, the bill also includes some tough new laws aimed at stamping out illegitimate bit torrent trackers and other peer-to-peer services. The proposed amendments would expand the secondary infringement section of the Copyright Act, making it illegal to provide internet services that are intended to facilitate copyright infringement. The amendments are carefully worded to catch pirate file sharing services while at the same time excluding legitimate search engines and internet service providers. But, do the new provisions strike the right balance?
The existing secondary infringement provisions are found in s. 27(2) of the Copyright Act, R.S. 1985, c. C-42. The section prohibits selling, renting, importing or distributing works that infringe copyright in Canada. Essentially, the secondary infringement section aims to cut off piracy at the middle man; it makes it illegal to deal in copyrighted works even when the dealer did not copy the works itself.
Bill C-32 would extend the secondary infringement provisions to specifically include online services. The proposed s. 27(2.3) states that:
(2.3) It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
In addition, Bill C-32 would introduce a number of factors that a court could consider in determining whether an online service was a good or bad one:
(2.4) In determining whether a person has infringed copyright under subsection (2.3), the court may consider
(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
(c) whether the service has significant uses other than to enable acts of copyright infringement;
(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
(e) any benefits the person received as a result of enabling the acts of copyright infringement; and
(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement.
The new sections clearly target online file-sharing services, including bit-torrent trackers and some streaming video sites. Canada has become somewhat notorious in recent years for being a safe-haven for media piracy. Several of the world’s largest bit torrent sites such as isoHunt are hosted in Canada, and law enforcement has thus-far been unwilling to shut down servers and arrest operators as other countries like Sweden and the Netherlands have recently done. The United States has repeatedly listed Canada on an IP “watch list”, and IFPI recently condemned Canada as a “major source of the world’s piracy problem.”
With bit torrent technology, a service provider (also known as a “tracker”) acts as an intermediary, directing traffic between peers. The tracker does not, strictly speaking, host any infringing files. Instead, it merely points users to other users to allow them to download files directly from one another. Shutting down a tracker will shut down a whole trading network. The technology can (and has) been used for legitimate purposes such as distributing open source software, but overwhelmingly it is used to share pirated movies, music and software.
Bill C-32 treads a fine line between outlawing services that trade primarily in copyrighted goods (such as isoHunt), and criminalizing services that, though they can be used for illegitimate purposes, are on the whole not intended for piracy. Search engines like Google, for instance, can be used to find copyrighted works, but that is obviously not their primary intention. Other file-hosting services like Youtube and Megavideo occupy more of a grey area; while they certainly do facilitate piracy at some level and perhaps even profit from it, they undoubtedly have primarily legitimate or neutral purposes. (Note: Those sites aren’t Canadian, but they illustrate the point. Megavideo in particular is largely used for streaming pirated TV shows and movies.)
The bill attempts to distinguish between legitimate and illegitimate service providers through the factors in proposed s. 27(2.4), and on the whole it does a good job. Factors (e) and (f) suggest that the balance may be in favour of the service providers, i.e. it will have to be fairly obvious that a site caters to pirates before it’s shut down. Intention is a key theme in the new section. Where it appears that a service provider intended or ought to have known that their service would be used for piracy, it will be considered infringement. The factors in s. 27(2.4) all assess different aspects of a service provider’s intention, and they seem to hit all of the important points. The factors are reminiscent of the factors considered by the US Supreme Court in MGM v. Grokster, which might indicate the approach a Canadian court would take when considering the section.
The combined effect is that sites like Youtube that do make efforts to control piracy should be safe from the new provisions, while true ‘skull and crossbones’ pirate sites will almost certainly be caught. The interesting cases will be the in-between technology neutral sites like Megavideo that have both legitimate and illegitimate functions. It will be a line-drawing exercise to determine which are intended for copyright infringement and which are not.
6 Responses
If youth voted, any party favouring a shut down of bit torrent trackers, would be booted quickly from government.
“Canada has become somewhat notorious in recent years for being a safe-haven for media piracy.”
Notorious where? As Howard Knopgf points out, Canadian Copyright Law is plenty tough: http://excesscopyright.blogspot.com/2010/02/22nd-example-of-how-canadian-copyright.html
The largest promoter of that misinformation is the USTR, who also tag countries embracing open source software, because the USTR goal isn’t “truth justice and the American Way” it’s “Supremacy of American Commerce”. ANd of course the USTR’s goal is the furthering of the MPAA/RIAA agenda.
In fact not so long ago the US Government itself admitted that Counterfeiting and Piracy Data Unreliable” http://www.michaelgeist.ca/content/view/4958/125/
Repetition of rumours, particularly erroneous ones, evidences the bias of this article.
Laurel, I would point out that this is a blog post, not a news article. If my bias against bit torrent sites that allow for widespread downloading of commercial movies, music and software has been revealed then so be it. I would have thought that that would be a non-issue. It seems to me that this kind of wholesale piracy is indefensible. Regardless of how well-deserved Canada’s notoriety is, it seems like a no-brainer that large pirate bit torrent sites should be shut down. They’re the internet equivalent of selling burned DVDs at a flea market.
What’s more interesting is how the law will treat service providers that are NOT blatantly ripping off creators, but nevertheless have been used to facilitate infringement.
Because it’s a blog post you’re allowed to spread misinformation?
You say, “It seems to me that this kind of wholesale piracy is indefensible. Regardless of how well-deserved Canada’s notoriety is, it seems like a no-brainer that large pirate bit torrent sites should be shut down. ”
To which I would have to respond, “what wholesale piracy?”
Because there is little or no accurate data about piracy. The fact that the USTR chooses to allege that Canada is a “pirate haven” does not make it so.
Maybe I’m behind the times, but I grew up in a world where allegations were not evidence.
I have had my internet shut off because of an incident in America. I then moved to Canada for seven months with my girlfriend and even surpassed the downloading limit from my service provider(Rogers) 300%, yes, 300%. (about 250 gigs in one month)
That is by far the most amazing lack of enforcement I have ever seen when it comes to the internet.
I’m sorry to say this Laurel, you are very much behind the times. It is incredibly easy to track down the users of public torrents and private torrents. I don’t think you’ve ever used a bittorrent program before because you can even see the nationality everyone is located at when they are connected to you or remotely connected to a torrent. The ip is listed right on the interface. If you have than I’m amazed you haven’t seen the same Canadian demographic I have. It’s common knowledge to anyone of a private torrent community that it is MORE safe to download from Canada.
Hi guys..(Bradley n Laurel)
While it is true that the most known Torrents sites are located in Canada, and that there are a large number of Canadians using them. It is hard to believe that you can put a number saying that the majority of torrents users are Canadians…, I mean you have the whole world to look at.
Also, depending on the time of use…
Ask yourself, how many U$A citizens own a torrent site..?
How many of the Torrents sites in Canada are owned by Canadians..?
I have always asked myself, who would set up a torrent and to what end…? they aren’t making money on it. Are they..?
As I’m sure that artist and production houses want to get their dues for the services/arts.. When is enough..?
I grow up in the States and in other nations, and one thing I can see clearly now is the fact that U$A it’s all about the mighty buck… which is has none off.
Yeah, their economy is fake and manipulated to maintain people thinking their money has value.
In fact Bradley, when you lived in Canada and you surpassed your allowance bandwidth (by 300%), that is fine by the Service providers as long as you pay for the over flow.
I want to know,
Did you pay for the over flow..?
or,
did you just take the next bus/plain across the border..?
So, in principal, the Canadian service providers will let you do as much as you can do, except some type of pornography, as long as you pay.
Piracy…
Well, Bradley…
If you are walking down the street and find a $100 dollar bill, and not even 50 meter away, you find another $100 and pocket them both in your wallet…
Are you stilling…?
Would you share it with someone you know..?
I guess it’s all perspective…
While it would be illegal for the owner of the media to share it at all…
Is it illegal to take something that is freely available on your bandwidth..?
Of course, it would be illegal for that 2nd person to give/sell or other wise share that freely available media.
Simply because he is not the original owner…
If you ask me…
I would just make it so, somehow (can’t say how) the file uploaded to the torrent servers or online file sharing sites be tagged with a marker containing the originating IP address. Since it would have been the owner/seeder that is breaking the law by sharing something that is not really their own.
Keep in mind, when you buy the CD/DVD/Software, you don’t own the content. You simply paid for the wright of “personal use”. Meaning, you can’t claim it as your own.
In conclusion, ISPs may be somewhat at fault by allowing Torrents sites to exist, but ISPs have a business to run. Thus, when the court tell the ISPs to stop selling their services to Torrents and Porn Site, where are they going to make money from…? Selling customers information to the highest bidders like the Phone companies do now to Telemarketing companies… The ones I think should be targeted should be the Up-loaders/Seeders of the files and not the poor sucker that finds a digital $100 on the front lawn of his bandwidth…
Have fun guys…
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