It’s not ‘notice-and-Norwich,’ SCC to hear in disclosure costs case

The notice-and-notice regime requires internet service providers (ISPs) to forward copyright infringement notices, not to identify customers to rightsholders for free, a coalition of ISPs and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) are arguing at the Supreme Court of Canada. The case in question, brought by Rogers Communications Inc., centers on a Federal Court of Appeal decision in favour of Voltage Pictures LLC that said ISPs can’t charge for disclosing customer info in copyright infringement cases, unless the government chooses to set a fee ceiling. The Wire Report has reported that the amount Rogers was charging for disclosure — $100 an hour — could be high enough to provide a deterrent to copyright holders looking to take legal action, given the low maximum damages for non-commercial infringement under Canadian law. Intervenor statements were due Wednesday, and the court will hear the case April 26. CIPPIC also brought up that argument in its filing, writing that “a costless process for rights holders would create an incentive for mass Norwich requests associated with all notices that intermediaries forward.” Voltage, and the Federal Court of Appeal in the decision under review, are mixing up two different mechanisms under Canadian law, the two intervenors are arguing. The notice-and-notice system, which came into force in 2015, obliges ISPs to forward copyright infringement notices to subscribers, while the mechanism by which a court orders ISPs to identify customers — a Norwich order — predates it by decades. “Rights holders are entitled to enforce their copyrights but not by conflating distinct procedures. Parliament did not, with the Copyright Modernization Act, create a notice-and-Norwich scheme,” CIPPIC said. When the government put the notice-and-notice regime in place, it “chose to deter infringement via awareness-raising rather than mass litigation against content consumers,” it said, adding that the legislation that created that regime doesn’t in any way indicate notice-and-notice should be used to facilitate litigation. Voltage, on the other hand, maintained in its statement that the ISP already has the customers’ identity on file, and all that is necessary to disclose it is “a quick look up,” which doesn’t necessitate the costs Rogers was charging. Because Rogers already identified the customer when it sent the notice, disclosing that customer’s ID shouldn’t involve re-verifying that information, it said. “Either Rogers is abdicating its responsibility to properly identify its own subscribers when it forwards copyright infringement notices to them, or, it has performed an adequate job identifying them prior to ‘notice transmission,’” Voltage said. But a coalition of ISPs put forward that while the notice-and-notice regime means ISPs have to forward notices of claimed infringement, it does not “require that the identity of the person actually be determined, verified, or prepared for disclosure at the notice stage.” The coalition includes Canada’s largest telecoms, with BCE Inc., Telus Corp., Shaw Communications Inc., Quebecor Inc., Saskatchewan Telecommunications Holding Co., and Cogeco Inc. backing Rogers, as well as the Canadian Network Operators’ Consortium (CNOC), which represents smaller ISPs, and TekSavvy Solutions Inc. and Xplornet Communications Inc. Rogers’ statement of fact outlined that it has an automated system to forward notices, which handles as many as 200,000 a month, but when it receives a court order, it manually verifies that information. “Court orders are not like notices received through the Notice and Notice Platform, where identically formatted requests are submitted to an email account and analyzed by a computer program. Instead, when Rogers receives a Court order, employees must examine it, satisfy themselves it is legitimate, determine what information is being sought, and then look up the relevant company records,” it said. The process of manually identifying a subscriber “requires the use of three separate highly specialized data extraction systems and between two and three Rogers employees,” and about 20 to 30 minutes. That puts its costs at about $100 an hour, it concluded. CIPPIC made the point that automated systems are not rigorous enough when it comes to disclosure of customer identities. While a customer who gets an erroneous notice can simply ignore it, a wrong identity disclosure has much higher stakes. “Internet subscribers named through a Norwich process face significant problems, ranging from legal costs to liability for infringement,” it said. “This is why information must be verified manually; this crucial process cannot be entrusted entirely to machines.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

It’s not ‘notice-and-Norwich,’ SCC to hear in disclosure costs case

Broadcast | April 20, 2018

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It’s not ‘notice-and-Norwich,’ SCC to hear in disclosure costs case

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