Notice bots under DMCA and C-61

The recent order denying the defendants' motion to dismiss in Lenz v. Universal has prompted some discussion of the ruling's implications for automated delivery of takedown notices under section 512 of the DMCA. (See, for example, Techdirt and Freedom to Tinker.)

The question in the Lenz case turned on whether the "good faith belief that use of the material... is not authorized by... the law" [17 U.S.C. § 512(c)(3)(A)(v)] requirement requires the potential complainant to consider Fair Use. The defendants argued that it should not. Judge Fogel disagreed, concluding:

The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

This is interesting in itself, particularly when you add the extra step and connect it to the liability under Section 512(f); which Judge Fogel does (accepting the plaintiff's claim):

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

But there's an additional implication. There are systems out there that promise to automate the identification of infringing content, and the delivery of takedown notices. But, as David Robinson of Freedom to Tinker notes, "it’s hard to imagine a computer performing the four-factor weighing test that informs a fair use determination." So, if this judgment stands, fully automated takedown notices may be illegitimate, and potentially vulnerable to counter-claims.

Since Bill C-61 proposes to establish a conceptually similar liability shield for ISPs in Canadian copyright law, one might be inclined to wonder whether the same argument would hold. The requirements for notices of infringement in this bill are as follows.

(2) A notice of claimed infringement shall be in writing in the form, if any, prescribed by regulation and shall
(a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant;
(b) identify the work or other subject-matter to which the claimed infringement relates;
(c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter;
(d) specify the location data for the electronic location to which the claimed infringement relates;
(e) specify the infringement that is claimed;
(f) specify the date and time of the commission of the claimed infringement; and
(g) contain any other information that may be prescribed by regulation.

I'm no lawyer, but I don't see anything like a "good faith" requirement. Such a requirement could be built in via regulation, but it's not explicitly present. One might imagine reading something into "the infringement that is claimed", but on its face it provides no standard that the claim can be judged against. So, fully automated notice bots would seem to be permissible, provided they can satisfy the (unspecified) regulations. Certainly these would be capable of producing a claim of infringement in the required form, if it doesn't need to be accurate, or even reasonable.

Michael Geist has noted that C-61 specifies no penalty for filing a false notice. One could argue that such a penalty is unnecessary, since the consequences of an abusive notice are much less severe that they would be under the DMCA. C-61 establishes a notice-and-notice system; the only requirements on the person receiving the notice are to pass it on to whoever owns the "electronic location" in question, and to "retain records that will allow the identity of the person to whom the electronic location belongs to be determined". If one ignores the privacy implications of the data retention requirement, it's not a very onerous obligation. Indeed, responding to those obligations could also be automated relatively simply.

So, we can imagine a scenario here where bots are trawling the net, looking for allegedly infringing content. When they find something, they generate a 41.25(2) compliant notice and send it off to another bot, which passes it on down the line, until eventually it reaches a human who can decide whether or not to do anything about it. All of this seems to be permissible under the terms of C-61, and so far it doesn't even seem especially objectionable. (Processing illegitimate notices would have similar undesirable consequences to spam, in terms of the burden they potentially impose on the network, not to mention their nuisance value. But there is a provision to cover this by adding a processing fee via regulation.)

Except that 41.27(2)(f) says the liability shield for Search Providers only applies if the provider "has not received a notice of claimed infringement relating to the work or other subject-matter that complies with subsection 41.25(2)." So, here a hypothetical illegitimate automated notice has a very different consequence. Instead of simply being a piece of spam that can be filtered, or ignored, it is targetable device that can be used to undo the liability shield offered by section 41.27(1). Of course this doesn't create any liability for the search provider--a potential complainant would still have to actually have a real claim in order to obtain any remedies. But if I were, say, Google, I wouldn't be at all happy about the prospect of being flooded with automated 41.25(2) notices, and having to identify the ones that were credible.

C-61: history and context

I mentioned in my first post that I had an interest in copyright reform. Here in Canada, there's a public debate underway about Bill C-61, An Act to Amend the Copyright Act. This is a complex piece of legislation. It's also, in my view, not a particularly good one, for a number of reasons. But, before getting into detailed discussion it's worth taking a moment to establish a bigger picture: how did we get here; and what's going on, anyway? (See also this chronology, which includes additional information.)

The bill was introduced on June 12, 2008, by the Honourable Jim Prentice, Minister of Industry and the Honourable Josée Verner, Minister of Canadian Heritage and Status of Women and Minister for La Francophonie. The government has made some effort to try to give them equal billing, but Mr. Prentice has largely taken the lead. The web site for government communication about the bill is within Industry Canada's domain, for instance. This is itself noteworthy. Traditionally, Copyright has been seen in Canada as primarily the purview of the Department of Canadian Heritage, placing the emphasis on its role in cultural policy. Giving the Department of Industry the lead role would rather strongly suggest that the present government is more interested in the commercial aspects of copyright policy.

The bill, of course, does not arrive in a vacuum. For one thing, there are World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), which Canada signed in 1997 but has not implemented or ratified. Ever since then, the question of how (and whether) to implement these treaties has been one of the central questions of copyright reform in Canada. But there are many others: copyright reform is a complex issue with many stakeholders looking for often contradictory outcomes. This tends to lead to the so-called "piling-on" effect, where each party insists that its interest be catered-to in the next revision of the Copyright Act. In recognition of this, the so-called Section 92 Report recommended that a piece-wise approach be adopted in which copyright reforms would be grouped into more manageable "thematic" packages. The "short term" package was recommended for adoption within "1 to 2 years" (i.e. by 2004), and would have included "the four digital issues and other WIPO treaty issues, access and education, photographic works, and transitional periods for unpublished posthumous works".

Of course, this didn't happen. At least not under that (Chrétien majority) government, and not by 2004. (There were a couple of smaller changes to the Copyright Act, during this period: one that excluded Internet re-transmitters from rights that cable and satellite operators have access to, and another that partly dealt with the issues about unpublished postumous works, and created an exemption to allow archival reproduction in more circumstances.) Meanwhile, the Standing Committee on Canadian Heritage released an Interim Report with a different set of recommendations. But in 2005, the Martin minority government introduced Bill C-60, which was closer to the Section 92 Report proposal. This bill died when the Martin government was defeated, in 2006.

A copyright reform bill from the Harper government appeared on the Notice Paper on December 10, 2007. Fearful of what that bill would likely entail, Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, started the Fair Copyright For Canada Facebook Group, with a stated goal of helping "ensure that the government hears from concerned Canadians". The group quickly attracted tens of thousands of members. As I write this, the group has 91,468 members. (I'm one of them.)

And the media noticed. So did the government. As noted above, the bill ultimately wasn't introduced until June (right before the House recessed for the summer break). It has been suggested that the intervening period was used to add some "consumer friendly" provisions, which might have been hoped to make the legislation more palatable to average citizens. However, these provisions have a number of limitations that make them less useful than they might be.

Over the summer, there has been a certain amount of discussion of the bill, particularly among its opponents. A casual web search for "C-61" turns up a lot of criticism, and not a lot of support. However, this probably has a lot to do with it being summer; the larger organizations are apparently taking their time to study the bill, prepare analyses and formulate strategies. If Parliament re-convenes in the fall, we can presumably expect to see more involvement from organizations like the Creator's Copyright Coalition, who can probably be expected to support the implementation of the WCT and WPPT. (Though one might expect them to also point out that their Platform on the Revision of Copyright calls for a host of additional measures that have not been included.)

As I write this, however, most observers seem to believe that there will be a fall election. If this happens, the Conservative Bill C-61, like the Liberal Bill C-60 before it (that's a co-incidence, by the way: the numbers come from the order in which the bills are introduced within a Parliamentary session), will die on the Order Paper, and the next government will have its own chance to introduce legislation. Either party could re-introduce either one of those bills, or a new one; or the issue could drop off the legislative agenda for a while.

But the debate, and the pressure behind it, won't go away, even if the bill does. Yesterday, John Degan of the PWAC put out a release noting that "[t]he Professional Writers Association of Canada (PWAC) encourages Canadian voters, media and politicians to ensure information economy issues are front and centre in any coming federal election, and into the next legislative session." I agree entirely, even though I would probably disagree with them about what that should entail or lead to.

Dark Days book launch

This evening I attended the Ottawa book launch for Dark Days: The Story of 4 Canadians Tortured in the Name of Fighting Terror (Kerry Pither, Penguin Books Canada). The focus of the event was a round-table discussion; there was also time set aside for book-signing and snacks.

The round-table was frankly a little disappointing. Or, perhaps that's the wrong word--disheartening is perhaps more apt. Shirley Heafey (former Chair of the Commission for Public Complaints Against the RCMP) in particular seemed to have a rather hopeless perspective. She repeatedly suggested that the RCMP were essentially beyond control; that their ingrained culture valued protecting the organization itself above all else; and that nobody really had any recourse in the face of this. She seemed at a loss to suggest any way to change this. Alex Neve was a little more optimistic, noting that the second O'Connor report from the Arar Commission contains a prescription for "A New Review Mechanism for the RCMP’s National Security Activities". That is, in fact, the document's title.

Only this report languishes, nearly two years after its release. On the same day that it was published, Stockwell Day announced the Iacobucci Inquiry, which has been widely criticized as being too secretive. But it defused the short term pressure to do anything.

Note that in one of the rare public hearings conducted as part of this inquiry, the Department of Justice argued that the UN Convention Against Torture (CAT) creates no obligations on Canadian officials with respect to actions of foreign governments. That is, so long as Canada doesn't itself practice torture, the convention offers no restraint against Canadian government complicity in torture abroad. This is, it would seem, the policy of the current Conservative government. But, lest the Liberal party try to make any hay of this, one should recall that two previous Liberal governments did very little while Maher Arar was being tortured in Syria, an oversight for which they were criticized (see item 16) by the UN Human Rights Committe.

The Iacobucci Inquiry, meanwhile, is supposed to table its report on or before October 20. Which might be in the middle of an election campaign. Kerry Pither noted during the round-table discussion that there had been some suggestion that if Parliament wasn't sitting, the report might be held back until it was. But, either way, it seems like a good question to ask the candidates when they come knocking on your door this fall is "What's your position on torture?" Then you can ask them what they intend to do with the recommendations of the O'Connor report.

Welcome

Just what the world needs: another blog! Worse, it's another blog about law and politics and, well, pointless argument. Worse yet: Canadian law and politics--the dullest kind, as I'm sure the discerning international reader will readily attest.

But there's an election in the wind, fixed dates be damned. And I'm spending a fair amount of time talking and thinking about things like copyright reform. It seems only fair to write some of this down, and annoy you with it.

Some of this is bound to be deadly-dull to those of you who don't thrive on pointless argument. So maybe I'll throw in the odd post about food, or something else entertaining.