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Canadian Copyright Notice-and-Notice System: Citing False Legal information
An anonymous reader writes Canada's new copyright
notice-and-notice system has been in place for less than a
week, but rights holders are already exploiting a loophole to send
demands for payment citing false legal information. Earlier this
week, a Canadian
ISP forwarded to Michael Geist a sample notice it received
from Rightscorp on behalf of BMG. The notice falsely warns that the
recipient could be liable for up to $150,000 per infringement when
the reality is that Canadian law caps liability for non-commercial
infringement at $5,000 for all infringements. The notice also warns
that the user's Internet service could be suspended, yet there is no
such provision under Canadian law. In a nutshell, Rightscorp and BMG
are using the notice-and-notice system to require ISPs to send
threats and misstatements of Canadian law in an effort to extract
payments based on unproven infringement allegations.
It's short for "If you see it (notice) send a letter (notice)".
-=This sig has nothing to do with my comment. Move along now=-
It may be illegal to lie for gain, particularly for a corporation, depending on the precise details of the case. They're opening themselves up to criminal charges, not to mention civil lawsuits.
How about lying about false and massive penalties in order to extract payment for an alledged offence that hasn't been proven to have taken place? Sounds like fraud, which is certainly illegal...
Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain (adjectival form fraudulent; to defraud is the verb). Fraud - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/F...
It is not illegal to lie — except under oath.
It is, however, illegal to infringe on copyrights. If the legal lying helps reduce the illegal infringement, I'm fine with it.
But it won't, of course, because the illegal infringers will see the lies and use that to justify their infringement.
What would make a difference is to make legal content available more widely and without restriction. Why should I "buy" a DRM movie download that I can only watch on a designated "approved" device and only as long as the company I "bought" it from is still in business when it's even easier to download it from a torrent, and then I have full use of it on any device forever.
Generally when I want to buy a movie, I'll just buy a used DVD and rip it myself though sometimes if it's something I want to watch right away I'll torrent it and buy it at the same time so I can watch the movie immediately. I believe I'm violating the law in both cases despite the fact that I have physical DVD's for all of my movies.
If I could buy a non-DRM'ed "official" movie in digital form for a reasonable price, I'd rather do that since I'd be guaranteed a high quality copy in my language (that sure beats waiting 3 hours for a torrent to download only to find out that the audio is in Mandarin with no subtitles), but there's no way to do so.
While Canadian law does indeed cap infringement awards at $5000, there's no reason the rights holders can't sue in U.S. courts where there is no such limit. Once the ISP reveals the identity, which they are required to do under Canadian law, nothing limits what the rights holder can do with that information. Canadian courts may not comply with judgements of U.S. courts, but if the defendant has any assets in the U.S. or travels there, they could be at risk.
If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
If you notice this Notice you'll notice this Notice is not worth noticing.
Criminal Code of Canada 346(1)
Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.
In Canada, once you have paid for a license of a movie, it is legal to rip it from a physical copy, or download a digital copy.
In Canada when you play money, you have to get something in return in the form of a physical item, a license, a limited license, or a service.
Home videos were going to be under the physical item category originally. The problem the MPAC had with this is that legally, in Canada, you cannot put any restrictions on what people do with an item that is labeled as physical.
The MPAC wanted home videos only to be used for private showings, thus they lobbied to have home videos be classified as a license. The problem they have now is that you own a license to watch that performance of the movie. If you have a VHS copy of The Jungle Book, it is legal for you to download the 1080p version and watch it.
The movie studios, or record companies, can get around this a bit by coming out with modified versions of the movies, or music. There is a threshold for how much change there needs to be for this to happen.
Also Herr Harper passed a law making it illegal to teach other people how to crack encryption. Though cracking the encryption for personal use is not illegal.
Basically, if you buy a movie, you own a license to view that performance, doesn't matter how you get it. Higher quality transfers, or remastering are generally still considered the same performance.
Microsoft, Apple, Google, Amazon what's the difference? All steal money from devs and control with walled gardens.
It might actually be more expedient to sue them for unsolicited, fraudulent legal advice, against the Bar of whatever province the consumer was sued in.
Fraud is a criminal offence, requiring the person be making a false statement to obtain money, and the false statement not to opinions like "my product is better than his".
In the US, the tradition is to sue folks. In Canada we tend to call the cops. I'm mildly surprised no-one has said they done so already.
davecb@spamcop.net
why do people keep saying "notice and notice"?
They used Xzibit as a consultant.
I am becoming gerund, destroyer of verbs.
I thought it was see something, shoot something.
IANAL, but suppressing copyright infringement is neither unfair nor unlawful. Whatever else may be wrong about it, fraud it is not.
That claim requires the end justifies the means. Never has, never will.
davecb@spamcop.net
That's because extortion has nothing to do with lying. Extortion is the criminal offense of obtaining money, property, or services from a person, entity, or institution, through coercion. You know, like your MAFIAA buddies.
Recent copyright law renders it illegal to break any digital "lock" mechanism, regardless of whether it's for the sake of format shifting or not. There are exceptions, but you'll note that platform shifting is not one of them:
source
Platform shifting is still legal, but not of, for instance, Blu-rays or DVDs
It might be legal, though I'm unconvinced. It is definitely unethical, and it *should* be illegal.
Keep in mind that the only possible justification for copyright's existence is that, on the whole, it benefits society. Every time it is abused, it tips the balance a little more. I'm no longer certain that it *is* a net benefit to society; we may be better off without it.
oh, before you say it isn't fraud in this case, try reading up on Canadian law:
Section 380(1) of the Criminal Code of Canada provides the general definition for fraud in Canada:
380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of the subject-matter of the offence does not exceed five thousand dollars.
In addition to the penalties outlined above, the court can also issue a prohibition order under s. 380.2 (preventing a person from "seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person"). It can also make a restitution order under s. 380.3.
The Canadian courts have held that the offence consists of two distinct elements:
A prohibited act of deceit, falsehood or other fraudulent means. In the absence of deceit or falsehood, the courts will look objectively for a "dishonest act"; and
The deprivation must be caused by the prohibited act, and deprivation must relate to property, money, valuable security, or any service.
The Supreme Court of Canada has held that deprivation is satisfied on proof of detriment, prejudice or risk of prejudice; it is not essential that there be actual loss. Deprivation of confidential information, in the nature of a trade secret or copyrighted material that has commercial value, has also been held to fall within the scope of the offence.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
Basically, you believe that the ends justifies the means. In this case, the ends are to extract money from the masses. And, the means involves lying.
This has damned near nothing to do with enforcing copyright law. Perhaps you didn't notice the name of the corporation involved - Rightscorp, acting on behalf of BMG. Or, you've forgotten how they've made news in the past. They dwell among the scum of the earth. They have been shot down time and again for exploiting loopholes in the law. And, oh yeah - perhaps you've also failed to notice that in this case, they are indeed exploiting a loophole in the law.
Rightscorp has no intellectual property to protect. It is nothing more than a remora, living off the larger shark, BMG.
Scum.
If you have any real intellectual property to worry about, are you willing to allow a remora like company to attach itself to you, so that it can milk money out of your property?
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
You don't get names from the ISP... or addresses, or anything else.
You send your notice to the ISP and they forward it to the person using the IP at the time you allege the infringement happened.
in old English law, prior to 2006 and as specified in the Fraud Act (1978?), obtaining or attempting to obtain pecuniary advantage, as here, by deception, as here, is fraud. In the Fraud Act it is defined as a summary offence - no question of intent. Did the fraud occur or did it not occur? If it did, then it did, end of story. Bend over, new fish.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
there does not have to be a proven loss, according to both the quoted Statute and the Case Law. There only has to be a proven intent to obtain pecuniary advantage by deception, as is precisely what is happening here.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
The real issue is that the ISP's are monitoring your network traffic at all. Does anyone not take issue with the fact that the providers know what websites you visit, what you download and what files you share with friends, family, and neighbors. That is the bigger issue. Without a warrant, these companies are pretty much watching and reporting everything you do, even on personal time. That in itself is significant. Sharing movies or music is incidental. These companies also know your personal details, religious/philosophical/political affiliations, your family, sexual preferences and so on. This is dangerous for a company to use and unquestioningly hand over to anyone without a warrant. Since when is it more important if I lend a friend a DVD more important than my privacy? There is a case to be made for running tor relays, advocating for user privacy, corporate accountability (and to keep their seemingly limitless powers in check) as well as government powers in check. This movie/mp3 stuff is beside the point. For those of you with computers in your bedrooms or homes, you now have confirmation that you are not alone and someone is watching and reporting everything you do.
"SO we bide our time, waiting for a purer kick to bloom and the future is still bleak, uncertain and beautiful" -GSYBE
This unauthorized copying and/or distribution constitutes copyright infringement under the U.S. Copyright Act. Pursuant to 17 U.S.C. 512(c), this letter serves as actual notice of infringement.
WTF would Canadians care about 17 U.S.C. 512(c)?
If they can't afford Canadian legal staff to even write their letters they will likely not have much success in Canadian courts anytime soon either.
Ergo, misprepresenting the Lawful position in order to obtain a settlement equal to the actual cap under threat of a claim for some thirty times the cap which would be dismissed anyway, but not before it bankrupted the respondent, would be found as fraud.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
Even if you have to hold your nose, Vote NDP next time. At least the leader has half a brain more than no brain Trudeau. I'd normally vote Conservative (they use to be like Democrats in the US). But I can't do it now. Too many reasons to count why.
-- I ignore anonymous replies to my comments and postings.
I posted a story a while ago about a slew of John Doe copyright cases that were dismissed out of hand for the simple reason that the COPYRIGHT HOLDER, NOT A THIRD PARTY, is the sole entity with the right to file such claims, AND that there is no way to prove an IP as a form of personal identity.
That post was dropped in favour of a slush piece about Kim Kardashian's ever increasing glutes.
Political debates have me rolling my eyes so much I think I got optical whiplash. I should sue. - Foamy The Squirrel
I've already received a notice and my ISP did exactly that. Here's the full text of the message I received:
Hello,
TekSavvy has received what the Copyright Act calls a "notice of claimed infringement". It listed an IP address and time. Our systems indicate that the IP address listed in the notice was likely assigned to your account at the specified time. We are therefore legally required to forward the notice to you. The notice is reproduced, unaltered, below.
First, though, there are some things you should know:
(a) We haven't told the sender who you are. Your privacy is paramount to us. We don't track, or know, what you do. We do know what IP address we assigned to you within the last 30 days. But we don't provide personal information like that to anyone unless a court orders us to -- and we have not done so here. The notice was simply received by us, and we have forwarded it electronically on to you.
(b) We are an intermediary that is required to forward this notice to you. We do not, and cannot, verify its contents or its sender. However, a private party's notice does not mean there has been any legal ruling. Only a court can do that.
(c) It is good practice to make sure you secure your account. Your wireless router should be password-protected; the password should be changed regularly; and those who have the password should maintain good virus protection. Your MyAccount allows you to check your bandwidth usage: do so regularly, and make sure what is happening and what you think is happening line up.
(d) We retain IP address information for 30 days. If your modem has not been powered off during that period, then we may have IP address information going back to the last time you did. In addition to requiring us to forward this notice, the Copyright Act also requires us to retain the records matching the IP address and time to your account for six months. If the people who sent the notice apply to a court, they can require us to hold it for longer.
We have provided some links below. The notice, which we are required to forward unaltered, follows.
Copyright Act (see, especially, sections 41.25-26):
http://laws-lois.justice.gc.ca...
TekSavvy:
http://teksavvy.com/en/why-tek...
https://myaccount.teksavvy.com...
Automated translation (you may need to copy and paste):
https://translate.google.com/?...
http://www.bing.com/translator...
--- Forwarded Notice of Infringement follows:
-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1
Notice ID: XX-XXXXXXXXX
Notice Date: 04 Jan 2015 03:52:22 GMT
TekSavvy Solutions, Inc.
Dear Sir or Madam:
Irdeto USA, Inc. (hereinafter referred to as "Irdeto") swears under penalty of perjury that Paramount Pictures Corporation ("Paramount") has authorized Irdeto to act as its non-exclusive agent for copyright infringement notification. Irdeto's search of the protocol listed below has detected infringements of Paramount's copyright interests on your IP addresses as detailed in the below report.
Irdeto has reasonable good faith belief that use of the material in the manner complained of in the below report is not authorized by Paramount, its agents, or the law. The information provided herein is accurate to the best of our knowledge. Therefore, this letter is an official notification to effect removal of the detected infringement listed in the below report. The below documentation specifies the exact location of the infringement.
We hereby request that you immediately remove or block access to the infringing material, as specified in the copyright laws, and insure the user refrains from using or sharing with others unauthorized Paramount's materials in the future (see, 17 U.
The ISP receiving the message has to pass it on to the customer [notice #1] and at the same time confirm to the original sender that they passed it on [notice #2]