Notices of Claimed Infringement
“Notice-and-notice” is the nickname for the regime put into place by sections 41.25 and 41.26 of the Copyright Act, which came into force on January 2, 2015. The rules require digital network providers, like ISPs and VPNs, to forward notices sent by copyright owners to users whose electronic location, like an IP address, the copyright owner claims is the source of possible infringement.
To comply with the regime, the notices must identify:
When the University receives such a notice, we must do two things: forward the notice to the alleged infringer, providing a success or failure receipt; and retain the information allowing the user’s identity to be determined for six months. If the copyright owner who sent the notice commences court proceedings, we may be required to retain it for more than six months.
Nothing. The Copyright Act grants the Minister of Industry the ability to determine the fee that can be charged for forwarding notices, sending back receipts, and preserving data. But it also prohibits the charging of any fee if none has been fixed.
At this time, the Minister has not fixed a fee, so the University cannot charge one. As a result, the cost to a copyright owner of sending each additional notice, once they have created an automated system for doing so, is zero. The Minister may change this in the future.
As an intermediary, the University has no knowledge of the contents of the notice, nor of what you do on the Internet. We cannot take a position on the accuracy of the notice, and we do not know what further steps its sender will take, if any.
What we can tell you is that a private party’s notice does not mean there has been any legal ruling. Only a court can do that.
As per the terms of the University’s Use of Computer Facilities Policy and Procedures, if we suspect that you are frequently or consistently violating copyright, you may receive a notice asking for acknowledgement from you about your academic integrity obligations. Failure to reply may result in your internet access being suspended.
Students found to have violated the Use of Computer Facilities Policy and Procedures can have their computer and internet privileges revoked, face fines, and have disciplinary matters reported to their Dean.
Many notices, especially those associated to pornographic material, seek payment of a settlement, claiming that if downloaders do not pay they will be sued for huge sums of money. Most commentators on the subject deem this to be a form of extortion by so-called “copyright trolls”, though the University takes no position as to the legal legitimacy of the settlement offer. Remember that if you do not reply to the rights holder who sent the notice to the University, they have no way of identifying you without a court order, and you cannot be sued if you are not identified.
No. The University will not take drastic disciplinary action against students, and Canadian law does not seek expulsion or deportation in these types of cases.
U.S. copyright fines and penalties do not apply in Canada. This of course does not mean that there are no copyright penalties in Canada.
So far, we have sent out hundreds of notices to hundreds of users.
No. The University does not monitor user use of the Internet to assist with these infringement claims. We have no involvement in collecting the IP addresses presented in a notice of claimed infringement. That is why we are in no position to speculate on the validity of a claim.
Subscriber information, individually-issued Internet Protocol addresses, and the link between them are all personal information.
We will not provide your personal information to any copyright claimant unless we are ordered to do so by a court. And we will take every opportunity to make sure that our users receive notice if we are ever asked by a court to disclose their personal information.
The Internet is federated by a common system for Internet Protocol addresses coordinated by the Internet Corporation for Assigned Names and Numbers (ICANN). The American Registry for Internet Numbers (ARIN), the Regional Internet Registry it has designated for our portion of the Americas, has assigned certain ranges of IP addresses to the University.
The University, in turn, allows the use of IP addresses by student and staff accounts that connect to our network, so that the associated device can access the Internet through the U of M. These addresses are generally assigned dynamically. The typical U of M IP address is therefore assigned to different accounts at different times.
IP address logs keep track of these assignments. They are automatically generated by our routing and authentication equipment. They are very large text files generated at high volume. In order to meet its legal obligations, the University now exports most of its IP address logs daily to a database system. The raw logs are then purged to make room for more.
Log information varies. The wireless network management software keeps 6 to 8 weeks’ worth of data. The network authentication system has logs that go back several years. The emails regarding notices that we pass along will be purged with a six month rolling window.
In isolated cases, we are required to extract certain information from our systems in order to preserve it for longer than 30 days. In some instances, we are required to do this by a court order in a criminal case. However, the most common reason for a longer preservation period is to comply with the Copyright Act.
Since January 2, 2015, we have been required to forward notices of claimed copyright infringement to the account information that matches the IP address and timestamp indicated on the notice. When we do so, we are also required to retain that IP-address-to-user correlation information, and the associated user’s identity, for six months. If the copyright owner who sent the notice commences court proceedings, we may be required to retain it for more than six months.
Yes. We can currently look up this information with reasonable accuracy going back several years. False negatives occur in around 5% of cases. False positives are highly unlikely. Having this data has been diagnostically useful to the University in the past.
No. We forward the notice, based on a database lookup as to which user was associated with the relevant IP address at the relevant time. We do not provide any information about you back to the sender.
If we ever become aware of any legal proceeding which contemplates the provision of your personal information to a third party, the University will notify you by email and provide as much information it has available about the legal proceeding under which the request is made.
The University will notify affected users if we receive a court order compelling us to disclose their personal information, unless explicitly prohibited from doing so by law.
It is good practice to make sure you secure your account. Your password should be changed regularly. Those who have the password should maintain good virus protection. Users should keep track of who has access to their accounts. Please note that the University does not permit the sharing of accounts, and that each user has agreed to be responsible for whatever is done with their account.
The University’s role is to ensure that we fulfill our legal and ethical obligations. We must comply with the Copyright Act. We remind our users of our policies regarding the use of the internet. We must also make sure our users’ privacy interests are fully respected.
Our users must know what personal information we are preserving, for how long, and why. And we must ensure that no information is disclosed to any copyright claimant without a court order. If things progress further, and the claimant goes to court seeking such an order, we must take every opportunity to make sure the user is aware of this as soon as possible, so that there is an opportunity to address the court before any disclosure is ordered.
If things progress still further, disclosure is ordered and takes place, and the rights holder wishes to pursue a copyright infringement claim, then you will receive a notification from the rights holder. At that point, the issue will be between you and the rights holder.
You can consult an attorney of your choosing, or contact the Community Legal Education Association’s Law Phone-In & Lawyer Referral Program (http://www.communitylegal.mb.ca/programs/law-phone-in-and-lawyer-referral-program/)
Copyright owners have the ability to sue infringers for the damages they have suffered due to the infringement and the profits the infringer has made. However, they also have the option of electing statutory damages at any time prior to final judgment, even if they cannot demonstrate their damages or prove an infringer’s profits.
If the infringement was for non-commercial purposes, statutory damages are between $100 and $5000. If it was for commercial purposes, statutory damages are between $500 and $20,000.
As an intermediary, it’s difficult for us to answer many of the questions that notices of claimed infringement provoke. We are not in a position to advise any third party on the application of the law to their particular situation, or the actions that they should take in response to a notice of claimed infringement, a motion for disclosure, or the defense of potential claims that may be made against you.