The entertainment and software industries have found an effective tool to deter some Canadians from downloading TV programs, movies, music and software. And it doesn't involve going to court.
A number of industry groups, mostly based in the United States, are relying on e-mail to get the message out that peer-to-peer file sharing is illegal. Thousands of the e-mails are being sent to Canadian users each month under a program known as "notice and notice."
Major Canadian internet service providers including Rogers, Bell and Telus have voluntarily agreed to distribute the notices to their customers on behalf of the industry associations. Telus forwards an average of 4,000 notices every month.
Stephen Harrington received a notice late last year after downloading a computer game from a bit torrent file-sharing site. (Bit torrent sites are used to share larger files, such as movies.)
Harrington wanted to play the game with his friends,liked it,and purchased it a few days later.
"Actually, I almost deleted it. But I read through and was quite surprised. But I was initially concerned," Harrington said.
The entertainment industry has long expressed frustration with Canada, and its unwillingness to modernize copyright laws.
"Canada's copyright laws regarding uploading and downloading are unclear, and that does present a number of challenges in curbing internet piracy," said Neil MacBride, a vice-president with the Business Software Alliance, a Washington D.C.-based industry association that fights software piracy.
The Business Software Alliance sent out about 60,000 "notice and notice" e-mails to Canadian internet users in 2006. "They've been most effective," MacBride said.
'Stop this infringing activity'
"If you're somebody who's [downloading] and you receive word that you're essentially using somebody else's property without their permission, it seems to have the desired effect — namely, people take it seriously and alter their behaviour accordingly."
The notices contain terse legal language: "This unauthorized copying and distribution constitutes copyright infringement under applicable national laws and international treaties. We urge you to take immediate action to stop this infringing activity and inform us of the results of your actions," reads one of the e-mails, sent by NBC Universal to Canadian internet users whowere suspected of downloading a NBC television show.
Canadian users are tracked by IP address when content is downloaded from the internet.
"It doesn't have any significant legal weight in the sense that it doesn't mean they're facing a lawsuit immediately or even the claims of infringement have been proven," said leading internet law expert Michael Geist of the University of Ottawa.
But Geist said the "notice and notice" program has been successful in scaring people to stop downloading.
"I think they've proven surprisingly effective and in fact indications are that when subscribers receive these, a significant proportion will take down the offending content if, in fact, it is infringing," he said.
Harrington says he has not downloaded material using peer-to-peer sites since he received his e-mail notice, forwarded by his ISP, Rogers Communications. But he is concerned about privacy: What information are the ISPs passing along to the industry groups?
"The ISPs are the only ones who know what individuals are doing what, so they're trying to push that thin blue line and get to individual privacy that way," he said.
No privacy issues, ISPs say
Both Rogers and Telus maintain they do not pass any personal information, such as user name or address, to any of the groups initiating the notice e-mails.
"We protect the rights of our customers and the privacy of our customers and the information about our customers quite vigorously and we do not pass the information about our customers on to third parties," said Michael Lee, chief strategy officer for Rogers Communications.
The notice program in effect in Canada is essentially a tool to alert users that they are downloading what the industry groups see as copyrighted material. Even though tens of thousands of e-mails have been distributed over the last few years, no one has been prosecuted for copyright violation as a result of the notices.
"Notice and notice" differs from the "notice and take-down" program that's in place in the United States. There, when an industry group notices an alleged copyright violation, an e-mail similar to the ones being sent to Canadian users is forwarded to the American ISP. In most cases, the ISPs are forced to immediately take down the content or face penalties.
"I think notice-in-notice is a great alternative that really respects privacy and free speech much more than notice and take-down," said Ren Bucholz of the internet advocacy group Electronic Frontier Foundation.