Obiter Dicta Issue 10 - February 2, 2015 - Page 11

NEWS Monday, February 2, 2014   11 Notice-and-notice » continued from page 3 been issued to one of its customers. This is of significance because, previously, in order to send a demand letter to an alleged infringer, rights holders would be required to obtain a Norwich Order to obtain the identity of that individual from the ISP. However, there is no longer a need for rights holders to know these identities since ISPs are obliged to comply with the new law. In light of these considerations, the potential for the system to be abused by copyright trolls becomes readily apparent. In fact, it would seem that the rules create a perverse incentive for copyright trolls to abuse the system in this way. Despite a lengthy consultation process, in the end, none of these recommendations were implemented and, instead, Moore chose to bring the law into effect in its current form with no further regulations. As Geist pointed out during the consultation process, the language used in the request for submissions strongly implied that there was little interest in departing from the form initially proposed. However, it is not evident that this was always the attitude. Through documents obtained under the Access to Information Act, Geist reveals that an earlier draft of the letter stated, “It is important that the system be balanced and functional for both copyright owners and Internet intermediaries.” This was subsequently rewritten to read, “It is our goal that a system be in place that is both balanced and functional; but, most importantly, it must endeavor to deter infringement. It is not clear at this time that regulation beyond the legislation will help better achieve this.” Without further information, one can only speculate on what prompted a change in focus from balancing the interests of all parties to simply protecting the economic interests of the rights-holder. What all of this shows is that Moore stood in a position to implement the necessary reforms to the notice-and-notice system that would have prevented rights-holders from using ISPs as instruments for copyright trolling. As it currently stands, the government is left looking a fool for allowing such a situation to develop after not only having fair warning from ISPs and other stakeholders, but it was also revealed that Industry Canada had prepared a memo outlining these very issues as early as July 2012. The fact that Moore now faces the very predicament he was advised of speaks either to the Minister’s arrogance or stupendous ignorance in these matters. That ê  My, what noble rhetoric trolls wear these days. Photo credit: Rightscorp.com aside, the real question is how the Minister intends to resolve this controversy. Reflective of true Canadian politics, Moore publicly announced the government’s disapproval of misleading practices such as those seen by Rightcorp, but this amounts to little more than casting a dirty look in the company’s direction. A proper response should do more than just identify bad behaviour; it should seek to prevent it from occurring at all. It has been suggested that the most obvious solution would be to do what should have been done in the first place—implement the very regulations that were so quickly and easily dismissed by Moore back in June 2014. In the meantime, while ISPs have no authority to make substantive corrections to the content of these misleading