Lately, more and more Canadians have been receiving notices of copyright infringement as a function of Canada’s notice and notice system. Although these notifications are coming from your ISP, like Bell or Rogers, they are really the product of CEG-TEK – a U.S. based anti-piracy firm that tracks down users who pirate media. Due to the rise in these anti-piracy firms, Canadian law now requires that internet service providers forward along these notices to their rightful recipients. CEG-TEK has been benefitting from this law and the loophole in the system that this allows for them, by sending recipients, not only notices of copyright infringement, but also including a settlement demand within that communication.
Despite this, ISP’s do not actually reveal their consumer’s personal information as part of the notice and notice process. The holder of the copyright is only given an IP address and data (which the holder considers evidence), that link it to an infringement. The ISP is unaware of which one of its customers is actually receiving the notice.
These warnings that are mailed by the ISP’s are unverified assertions of copyright infringement. In order for a rights holder to effectively go after an individual that it believes has infringed on its copyright, it would have to first acquire a court order, stating that the ISP has to divulge the identity of the infringer. To avoid this, Canadian courts have constructed privacy safeguards around the prospective discovery of exactly this type of information. In this situation, the Internet Service Providers have the ability to oppose the revelation of the subscriber’s identity or ask for subscriber notification of the legal process.
If the rights holder is successful in procuring the personal information of the subscriber, it may then send another letter that stresses a payment be made in return for the settlement of the case. Recently, Canadian courts have made it compulsory that these types of letters be reviewed by the Court, before they are sent out to subscribers.
If a settlement is not reached or pursued, the rights holder has the opportunity to obtain an infringement action in Court. If this were to happen, the rights holder would be left with the burden of proof. It would have to prove its rights in the work, that an infringement has happened, and that the person in question (the subscriber), was responsible for such an infringement. The rights holder would then also have to prove that some damage had occurred, since there is a cap on non-commercial infringement under the law.
The way to object to such claims would be by giving evidence that the subscriber was not part of the unauthorized download. This could be proven by the rights holder having an incorrect IP address, unsecure wireless network, or just a mistake made by the rights holder. Alternatively, the subscriber could also argue the case that their downloading of the questionable media was not a violation of Canadian copyright law.
