Hike in ‘copyright trolling’ feared after download ruling

Saturday, May 27th, 2017

Surprise decision targeting movie piracy ?bad news for consumers … for Canada?

The Vancouver Sun

Internet service providers are bracing for a flood of requests to turn over the identities of subscribers that allegedly download pirated movies after a court decision some Internet policy experts warn will increase “copyright trolling” in Canada at the expense of consumers.

Copyright holders such as film studios commonly use court orders to get alleged offenders’ identities from Internet providers, which typically charge a fee for tracking down the suspect associated with the IP address at the time of illegal downloading. This can be tricky, as IP addresses change constantly.

But in a decision that surprised many in the industry, the Federal Court of Appeal ruled earlier this month that Internet providers cannot charge such fees unless they convince the federal government to introduce regulations that explicitly allow them to do so.

It’s a win for Voltage Pictures LLC, a movie production company known for Dallas Buyers Club and The Hurt Locker. Voltage filed the appeal against Rogers Communications Inc. as part of a reverse class action lawsuit where it sought the identity of tens of thousands of suspected infringers.

It argued the fees — about $100 per request — amounted to a “multimillion-dollar barrier” that prevented Voltage from obtaining the required details to launch legal proceedings “to protect and vindicate their rights in the movies they make.” Judge David Stratas agreed, noting that “illegal conduct can continue, unchecked and unpunished” unless the cloak of anonymity is lifted.

But the industry worries the lack of a nominal fee for subscriber information will encourage copyright trolls — companies that send notices to consumers threatening litigation for alleged infringement in hopes they’ll be scared enough to pay up without a fight. If Internet providers can’t recoup the costs of identifying alleged offenders, they will be pushed onto all subscribers.

“It’s a horrific decision from a policy perspective and it’s bad news for consumers, it’s bad news for Internet service providers, it’s bad news for Canada,” said David Fewer, director of the Canadian Internet Policy and Public Interest Clinic.

“Your costs of engaging in trolling activity have just plummeted to the floor. This is the Federal Court of Appeal throwing the floodgates wide open.”

The ruling misconstrued the purpose and the function of Canada’s “notice and notice” regime, he said. The system, introduced in 2015, enables copyright owners to alert Internet providers of alleged infringement and requires providers to send notices to subscribers. While most copyright owners use these as an educational tool, some use them to demand sums around $3,500. Others, such as Voltage, take the next step to identify offenders in order to launch lawsuits.

The rules were a compromise between copyright owners, who want to be paid for their work, and Internet providers, which want to protect customers’ privacy, Fewer said. But trolling remains a “huge problem” in Canada, with some customers intimidated into paying thousands for an offence that he said should be more equivalent to a parking ticket. He expects the ruling could make it worse — and he’s not alone.

One telecom executive said they were “shocked” by the ruling, adding it will be expensive for all providers. The industry also expects increased lobbying activity, as the judge left room for providers to convince the government to add fees.

For its part, Rogers said in a statement it is reviewing the decision. It has until August to seek leave to appeal from the Supreme Court of Canada. Meantime, it expects its workload will go up. (Rogers received nearly 75,000 court orders to provide customer information in 2015, according to its transparency report, but most were from law enforcement. It doesn’t disclose how many were related to alleged copyright infringement.)

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