Judge Allows Bells Fight Against Copyright Abuse to Continue

Copyright holder allegedly sent extortion notices and incomplete notices and sued when those notices didn’t get forwarded.

One of the long-running, albeit quieter battles these days is the fight against copyright abuse. Copyright abuse can take a number of forms. One great example is using copyright as a censorship tool. Specifically, someone posts an original work that contains criticism of another party. That party then uses a copyright notice to censor said content even though they have no real valid claim for copyright infringement. Either the work falls squarely within the realm of fair use/fair dealing or doesn’t even use copyrighted material at all.

Another form of copyright abuse is dragnet extortion. This is done by using a frequently inaccurate bot to send hundreds of thousands of notices around and demanding payments from victims while threatening millions in fines. This is done whether or not the claim has merit, but the point is to try and turn the copyright system into an extortion racket for the purposes of profit.

Here in Canada, when the Harper Conservative government was in power, the copyright debate was still raging. Rights holders were wanting to turn copyright laws into their own personal ATM. This by saying that they have every right to sue alleged file-sharers for hundreds of thousands for each non-commercial violation. Canadians pushed back, pointing out that getting fined for hundreds of thousands for the innocuous “crime” of non-commercial copyright infringement is excessive. The fear at the time was that Canada could follow the disastrous lead in the US and utilize a notice-and-takedown system.

To the relief of Canadians, it seemed that the Harper Conservative government… of all governments… would be the ones to finally listen to reason. In 2015, they moved forward with efforts to implement a notice-and-notice system. They recognized that there is a very big difference between commercial copyright infringement and non-commercial copyright infringement. So, despite the many objections of the copyright industry, they set fines for non-commercial infringement to $100 to $5,000 in penalties – not the hundreds of thousands to millions of dollars as demanded by the copyright industry.

This copyright regime ultimately passed and is how the law works today. The idea is that if you are caught infringing on copyright law through things like file-sharing networks, the rights holder can send a notice saying that you are breaking the law. The user would then have the opportunity to stop what they are doing. While for some, that doesn’t sound like a very effective system, the system did ultimately work in the end. Many users who receive notices end up stopping. No need for threatening exorbitant fees. A solution to this long standing problem had finally been reached.

The problem is that there are those in the copyright industry who want to bring back the bad old days. They aren’t interested in stopping copyright infringement and protecting copyrighted works. They want to continue extorting users by demanding massive payments well in excess of the originally set fines. So, taking advantage of the fact that not everyone is an expert in copyright law, some opted to abuse the notice-and-notice system. This by sending notices threatening hundreds of thousands in fines if they don’t send them all of their information to implement a plan to pay for a “settlement” (re: ransom).

This has resulted an off again, on again battle where what is contained in copyright notices may or may not be breaking the law. One practice back in 2013 was known as speculative invoicing where the notice claims that the target (innocent or not) as been sued and that the company, in that case, Voltage Pictures, was offering to “settle” the case or face millions in fines – not something that is a thing in Canadian copyright law for non-commercial infringement.

What’s more, the copyright industry argued that sending notices should be a free service to them. They argued that notices should be free and that the ISPs should simply eat the cost. In 2018, the Supreme Court in Canada ruled that ISPs do, in fact, have the right to be compensated for the work of processing these claims. This further put a strain on efforts to turn copyright law into a massive money making racket.

Recently, one of those fights was apparently allowed to move forward again. A case involving Bell saw movie companies sending abusive or incomplete notices to alleged copyright infringers. Bell apparently opted not to send those notices due to them not being compliant with the law. In response, the movie companies sued Bell for $400 million for failing to forward those notices. A previous ruling said that Bell didn’t have enough evidence to make those claims in court and that Bell was not allowed to change their filing to include any additional evidence. On appeal, that ruling was overturned and Bell could amend their filing after all. From the Globe and Mail:

The case, first brought in 2021 by major law firm Aird & Berlis LLP on behalf of five film companies, got new wind last week when a Federal Court of Appeal judge partly reversed a previous decision, allowing Bell to continue to argue “copyright misuse.”

It’s the first time the defence – arguing that companies are using copyright law for reasons other than protecting their intellectual property – has been used in Canada.

The judge’s decision to allow the telecom to amend and add detail to its pleadings sets a new precedent that could ultimately protect consumers who have illegally downloaded content, as other ISPs will now be allowed to use the defence, experts say.

First, the telecom has said it did not forward some notices for viable reasons, including that some were duplicates or erroneous, or that it lacked subscribers’ contact information. It has also challenged the argument that the $10,000 statutory penalty should be applied individually to each unsent notice.

Separately, Bell alleges in a counterclaim that the production companies’ method of copyright enforcement is itself unjust, in that it is used to “harass and intimidate alleged infringers, and to make exorbitant claims against ISPs. Bell pleads that it should not be liable for statutory damages in these circumstances,” according to Justice Judith Woods in her Aug. 29 decision.

In doing so, Bell is alleging copyright misuse. At the trial division, the judge felt there were not enough material facts to support that allegation, and another judge found that Bell should not be allowed to alter its pleadings.

But on Aug. 29, the Federal Court of Appeal found that Bell should be able to amend its argument to elaborate on its allegations.

So, the case is moving forward. Hopefully, it’ll help answer important questions like what constitutes a proper notice and what constitutes extortion.

(Via @Fagstein)

Drew Wilson on Mastodon, Twitter and Facebook.