NEWS
Monday, February 2, 2014 11
Notice-and-notice
» continued from page 3
been issued to one of its customers. This is of significance because, previously, in order to send a demand
letter to an alleged infringer, rights holders would
be required to obtain a Norwich Order to obtain the
identity of that individual from the ISP. However,
there is no longer a need for rights holders to know
these identities since ISPs are obliged to comply with
the new law. In light of these considerations, the
potential for the system to be abused by copyright
trolls becomes readily apparent. In fact, it would seem
that the rules create a perverse incentive for copyright
trolls to abuse the system in this way.
Despite a lengthy consultation process, in the end,
none of these recommendations were implemented
and, instead, Moore chose to bring the law into effect
in its current form with no further regulations. As
Geist pointed out during the consultation process, the
language used in the request for submissions strongly
implied that there was little interest in departing from
the form initially proposed. However, it is not evident
that this was always the attitude. Through documents
obtained under the Access to Information Act, Geist
reveals that an earlier draft of the letter stated, “It is
important that the system be balanced and functional
for both copyright owners and Internet intermediaries.” This was subsequently rewritten to read, “It is our
goal that a system be in place that is both balanced and
functional; but, most importantly, it must endeavor to
deter infringement. It is not clear at this time that regulation beyond the legislation will help better achieve
this.” Without further information, one can only
speculate on what prompted a change in focus from
balancing the interests of all parties to simply protecting the economic interests of the rights-holder.
What all of this shows is that Moore stood in a
position to implement the necessary reforms to the
notice-and-notice system that would have prevented
rights-holders from using ISPs as instruments for
copyright trolling. As it currently stands, the government is left looking a fool for allowing such a
situation to develop after not only having fair warning from ISPs and other stakeholders, but it was also
revealed that Industry Canada had prepared a memo
outlining these very issues as early as July 2012. The
fact that Moore now faces the very predicament he
was advised of speaks either to the Minister’s arrogance or stupendous ignorance in these matters. That
ê My, what noble rhetoric trolls wear these days. Photo credit: Rightscorp.com
aside, the real question is how the Minister intends to
resolve this controversy. Reflective of true Canadian
politics, Moore publicly announced the government’s
disapproval of misleading practices such as those seen
by Rightcorp, but this amounts to little more than
casting a dirty look in the company’s direction. A
proper response should do more than just identify bad
behaviour; it should seek to prevent it from occurring
at all. It has been suggested that the most obvious
solution would be to do what should have been done
in the first place—implement the very regulations
that were so quickly and easily dismissed by Moore
back in June 2014. In the meantime, while ISPs have
no authority to make substantive corrections to the
content of these misleading