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Copyright Infringement

This page provides information about how copyright infringement is handled at NCF.

Note: This information is not a substitute for legal advice. If you need more information please consult a lawyer who deals in copyright law.

Contents

New Law

On 1 January 2015 The Copyright Act was amended to introduce new rules for people alleged to have infringed copyrights. This new procedure, termed a "Notice and Notice System", changes the obligations for Internet Service Providers (ISPs), like NCF, as well as for its members.

The new rules require members to be notified by NCF when copyright infringement is alleged and NCF would be subject to fines if we fail to comply. Copyright holders can request proof of compliance, too, although that proof will not identify the person the notice was sent to.

When A Copyright Infringement Occurs

It is important to know that it is against the law to download copyrighted material without permission of the copyright holder. This applies to all forms of copyrighted material, including books, articles, movies and music.

How ISPs Respond to Infringement Notices

A sample infringement notice
A sample NCF letter to accompany an infringement notice
  1. Copyright holders or their agents (usually legal firms representing the copyright holder) monitor internet downloads and determine the IP address of people involving in alleged illegal downloading.
  2. The copyright holder then looks up which ISP holds that IP address and sends them an email
  3. The email is parsed by NCF's automated script, which checks the logs to see which member had that IP address at the time of the infringement
  4. The complaint is then forwarded to the NCF member by NCF with an explanation

It is worth noting that no personally-identifying details are sent back to copyright holder without a court order. So at this point the copyright holder does not know the name or other identifying information of the alleged infringer, just your IP address.

Your IP Address

An IP address is your digital address. Generally, a new address is assigned to you whenever your modem connects to your ISP. Every request you make on the internet comes from your digital address and all your online activity traces back to your IP address.

Because IP addresses change regularly, rights holders generally cannot tell whether two different infringements happened from the same account and rights holders cannot use your IP addresses to identify you personally. They can however determine which ISP the address is from. Only the ISP will know who was assigned that IP address at that time and the rights holder can only get your name through a court order, unless you write back to them and thus identify yourself.

Penalties

Under the new rules the fines are less than penalties for non-digital infringement. The aim of the Act is to reduce copyright piracy, while focusing on major culprits and it distinguishes consumers from those involved in commercial piracy. In other words there are harsher penalties levied at those who run or facilitate mass file sharing systems (eg, Pirate Bay)

Maximum Penalties

Specifically for consumers penalties range from $100-5000 in total damages. There are higher penalties for multiple infringements, capped at $5000.

The awards of damages could be higher if multiple copyright holders are involved or multiple downloads.

Protecting Your Privacy

Please be aware, your ISP forwards notices as they are received, and does not verify the accuracy of the information contained in them.

Some enforcement agents have been known to provide misleading information, to try to frighten users into a quick settlement. They sometimes demand you contact them immediately, but contacting the rights holder will make them aware of your identity, which they would otherwise need a court order to obtain.

How Is Copyright Infringement Tracked?

Because downloads (including streaming) from websites require a court order to search server logs and courts do not routinely allow warrants without evidence of infringement, most copyright holders do not concern themselves with website downloads, but instead concentrate on BitTorrent and other peer-to-peer file sharing. With these services there is no central server and the files are hosted on users' computers, allowing users connect to each other to download files.

With peer-to-peer file sharing a central server may list files available, but does not host any files directly. Peer-to-peer file sharing essentially creates a swarm of computers to share files and everyone can see everyone else on it by IP address. This makes it easy for enforcement agencies join a swarm and begin downloading a file. Any client that exchanges bytes with them can be identified as a possible copyright infringer.

What does NCF know about my connection?

When you connect to the internet, your ISP assigns you an IP address and it is used for every connection you make online. NCF logs which IP address it assigns to whom and when. This is necessary to direct traffic to you, but can also be used to identify you.

NCF does not see everything you do on your internet connection. This requires equipment to do deep-packet inspection, which is expensive and requires real-time analysis. NCF does not opt to invest in this technology, although some of the larger ISPs are known to carry out deep-packet inspection on their customers.

ISP Enforcement

So far, ISPs are not being called to be enforcers on the internet. The Act says that ISPs will "not be held liable for the copyright infringements of their subscribers, to the extent that they are acting as neutral intermediaries"

ISPs are only subject to fines only for failure to comply with notice-and-notice policy. This means that it falls to rights holders to enforce their copyrights through litigation in court (law suits).

Members Responses

When they receive infringement notices some members are concerned and confused, because they don't think they've done anything wrong. They often think that they haven't broken the law or that it must have been someone else.

According to Canadian law, any download of copyrighted content without permission is illegal. These notices are legitimate legal notices and rights holders are entitled take civil action. Rights holders are entitled to seek legal recourse, even just for the first offence. The current implementation relies on warnings and NCF has not received any court orders yet, as of October 2015, so it is likely that after you receive a notice that if you take steps to prevent future infringements, should be safe from law suits, at this point in time.

The best way to avoid being sued is to prevent infringements by your account:

  • If you have been downloading from P2P services, or other pirated sources, stop immediately
  • If you have not, find out how they occurred, and take steps to prevent it

If you don't think it was you

Many people who get these notices think there must have been a mistake, but if you're certain you didn't download anything illegally, try to figure out who did.

Check:

  • Is your wireless network secured? Don't run open wireless networks
  • Is there anyone else using your internet account who might have?
  • Do you have other people in your house making illegal downloads?

Securing your wireless

Don't run open wireless. If you run unsecured WIFI, anyone can access your connection. This makes it possible for other people to use your internet connection to download copyrighted material and other illegal uses. It is not easy to prove your innocence with regards to downloads and you are responsible if they trace to your IP address.

Secure your wireless network, make sure that it is protected with a password to sign in. Then your traffic is encrypted and cannot be intercepted by computers that are within your network's range. This prevents unauthorized persons from using your internet connection.

If your wireless network is secured then it will require a password the first time you connected to it. Some operating systems show a "lock icon" next to the network connection symbol, too. You can also log into your modem and check your settings. If a password is not set, you can create one.

Note that all modems sold by NCF are secured automatically.

Authorized Users In Your Home

Sometimes authorized users may be downloading copyrighted materials without your knowledge (e.g., children who aren't aware of the laws they may be breaking). The account holder may still be held responsible for their actions. It is important to talk with your family members about respecting copyrights and the penalties for infringement.

How can you tell if someone in your household is downloading copyrighted material? Try asking them, but if they deny it, then look for someone who:

  • Watches lots of movies, but has no Netflix or iTunes subscription
  • Plays a variety of games, but has no packaging for bought games
  • Has a stack of burned DVDs, labeled with a Sharpie
  • Uses file sharing software such as BitTorrent
  • Has open windows on computer screens with a long list of progress bars
  • Has files with strange file names like True.Detective.S02E05.HDT V.x264-ASAP[ettv]
  • Or if you receive a notice of infringement from your ISP

Provide Alternatives

The best way to keep people from engaging in illegal downloading, is to provide them with legal options. If they have access to Netflix and Spotify, they may be less likely to be tempted by illegal downloading.

Note: Keep in mind that you are not liable for watching something on YouTube that the right's holder has made publicly available. If the video is infringing, it's up to YouTube or the individual who posted the video to take it down.

Public Open Wireless

While it may be tempting just to use public wireless and try to circumvent the law, this is not a good idea. It is possible to monitor open WIFI traffic, so one should refrain from any activity you wouldn't want others to see

It is still the downloading of copyrighted materials that is illegal.

While harder for rights holders to track down public wireless users, not impossible, and you would still be liable for damages.

Many WIFI providers require you to accept terms of service that put the legal burden on to you, the end user, rather than the internet account holder.

Virtual Private Networks

Virtual Private Networks (VPNs) may help protect against identification, or to provide access to out-of-country services, but using VPNs to hide possibly-illegal activity may not be the best idea.

The VPN company will have to be subject to a court-ordered search in order to reveal the real IP that they then follow up with the ISP. Some VPN companies may claim they don't track IPs, but they could also be lying, and they could even be tracking you. What do you really know about your VPN provider?

Some people use a VPN service for defeating country-locks, such as accessing Pandora, US Netflix or Hulu. This may not be illegal, but it will violate terms of use.

The Impact to Date at NCF

NCF has not yet been contacted by any of the enforcement agencies, except through automatic notices. We have to keep the logs of the emails in case they ever do contact us or make any requests. This is not a guarantee that no action will be taken. Logs must be kept for at least a year, so rights holders don't need to take immediate action, it can take some time.

The copyrights holder industry has a history of waiting before taking action, so as to build up a larger case. So don't think that just because you have only received a few notices that a law suit will not follow at some point in the future.

Statistics

Here are some statistics from the first nine months that the new "notice-and-notice" system was in effect in Canada in 2015.

  • 44% of infringement notices were received by NCF and delivered to account holders within one day of incident
  • 22% take more than a week to be received by NCF and delivered to member
  • The maximum time from date of infringement has been 16 days
  • More than 700 notices have been sent out to over 8% of NCF members

Who Cares?

Who should care about these regulations?

You should if:

  • You have copyright material that you wish to protect
  • You use material from the internet that may be copyright protected, without permission (music, photos, games, etc.)
  • You allow others to access the internet through your connection