Friday April 10, 2015

Should you pay if you get an illegal download notice?

A photo illustration of a Harry Potter film about to be illegally downloaded.

A photo illustration of a Harry Potter film about to be illegally downloaded. (Getty Images)

Listen 11:34

Canada's crackdown on illegal downloading is in full swing, with more and more Canadians reporting that they're receiving notices from their internet service providers. The notices say they could be on the hook legally for downloading copyrighted files.

The warnings are part of a new provision under Canada's Copyright Modernization Act, called the "notice and notice" program, which came into effect on January 1st.

Under the provision, copyright holders — such as movie studios — send a notice to ISPs to inform them about alleged infringements. The ISP, in turn, is required by law to forward that notice onto the customer. But the ISP isn't allowed to reveal the identity of the person to the copyright holder without a court order.

Calgary's Darren Mycroft says he received four illegal downloading notices from his internet service provider, Shaw. He says he got four of the notices in his email inbox this week, all on the same day.

"It was a shock to me. I was really confused, because I don't download files illegally. I wasn't worried or scared because I know that I hadn't done anything wrong, I haven't downloaded anything illegally since Napster shut down so it wasn't me," says Mycroft.

Illegal downloading - settlement website

Screenshot of CEG TEK's website, a copyright enforcement company. Darren Mycroft says the illegal downloading notice he received from his ISP directed him to this page in order to pay settlements for files he says he did not download. (Darren Mycroft)

Mycroft says the notices he received encouraged him to go to a website to pay at least $450.00 in settlements, to avoid further legal action. But he says he has no plans to pay.

"It is almost a form of extortion in my opinion. Once you follow the link to their site, they're asking for your personal information so the privacy that's being protected by your ISP is no longer there because as soon as you go to that site they can look and actually find out who you are," says Mycroft. 

According to Industry Canada, Canadians can be liable for up to $5,000 for downloading a film or other copyrighted material for personal use under the "notice and notice" provision.

Meghan Sali, campaigns coordinator with internet advocacy organization Open Media, says Canada's copyright laws and the notices Canadians receive are doing exactly what they should: deterring people from downloading illegally.

But still, she advises Canadians not to pay settlement fees when they receive a notice from their ISP. She says the notices may not reflect the legal reality of what an illegal downloader could be required to pay. She says people are asked to pay settlement fees, when there's no proof of a law being broken.

"There need to be some clear and simple rules put into the Industry Canada's guidelines about what type of information can be included in the notice. If there aren't any rules around what can go into these notices, Canadians are unsure about whether or not this is actually a real threat to them and that is where ultimately the confusion comes in," says Sali.

Sali says other cases can involve so-called "copyright trolls", companies hired by copyright holders to go after illegal downloaders. She says "copyright trolls" bank on fears of further legal action even when there is no proof of guilt. 

"Copyright trolls actually don't want you to go to court. They know it's difficult to win and what they'd like you to do is settle outside of court and that's really where this bullying behaviour comes in," says Sali.

Mycroft says the files he is being accused of downloading are pornographic movies. He says he's looked back at the dates in question, and he suspects it may have been a friend he had over to his place that day, but he isn't sure.

Sali says Open Media has heard from many Canadians who've been pursued for files with explicit titles. 

"Usually what they [copyright trolls] do is pick titles that are explicit and pornographic because they know they're more likely to get money out of them [subscribers]. They know that these people would be embarrassed if this came to light. Essentially what this amounts to is a shakedown," says Sali.

It's not clear if that happened in Mycroft's case.

Sali says Canadians shouldn't take the consequences of illegal downloading lightly. She says if you are downloading illegally, you could end up getting sued. 

"The reason the government spent so much time crafting this system is to educate Canadians about copyright infringement. And that's what the notices do and they're remarkably effective at this," says Sali.

But Sali says she wants to see guidelines in place so that Canadians can be sure they're receiving accurate information when they receive illegal download notices.