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What you should know about illegal downloading in Canada

Regina copyright lawyer breaks down the impact of the Copyright Modernization Act
Reported by Adriana Christianson
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The Canadian music and film industry now has more streamlined options to punish the people who are still downloading movies or music, but a local copyright lawyer explains it’s not likely to happen very often.

Last week news broke that a Canadian software company is tracking one million people for illegally downloading music and movies. It's all thanks to changes that came into play in early November with the Copyright Modernization Act.

So what does it all mean legally? Regina-based copyright lawyer Cory Furman says the changes were made to clarify previously grey areas and allow for more enforcement around illegally downloading material.

“It’s primarily intended to catch –- and where I think there’s starting already to be some enforcement activity happening -- is around peer to peer file sharing,” Furman explained.

He admits it is a long and complicated process to actually take someone to court for breaking this law. First, they have to track IP addresses linked to file sharing on BitTorrent sites. Furman says that does apply to both people who download and those who upload.

Forensic software companies like Montreal-based Canipre can find those IP addresses by monitoring sites where they find illegally uploaded material.

After they find you, they have to send notice to your Internet Service Provider listing which IP addresses are linked to illegal downloading. From there the ISP is protected from liability but they do have a role to play.

“They then are required to pass on that notice to their customers,” Furman said.

That step comes down to a warning letter from the ISP to their customers saying they have been tracked for illegal downloading and could face legal action if they continue. Furman says if people keep downloading movies or movies after that, then they can take you to court.

“The rights holder can actually seek to have the ISP produce the particulars of the customer – so identify the customer who was behind that IP address,” Furman explains that allows them to effectively take legal action for copyright infringement.

That is what happened in a Montreal federal court recently. Several ISPs were ordered to give up the names and addresses of 50 subscribers who were linked to illegal downloading.

If it comes to legal action, Furman says copyright holders in the industry do have a more streamlined system than they used to. They can seek statutory damages without the need to go through a longer process of proving exactly how much money they really lost.

“They can basically seek in the statement of claim to have an award of statutory damages in the amount of up to $5,000 for example,” Furman said.

They still have the option to seek actual damages for more money but that would be harder to prove. This makes the law easier to enforce, but even with the changes, Furman says they still have to go through the court to prove the law was broken.

Due to the fact that it’s still a complicated and long process to go to court, Furman doubts these copyright laws will be enforced every time they find someone downloading material. He does believe we could see some cases popping up in the near future.

“It probably will be used enough to sort of create some public deterrent to people file sharing or downloading stuff without paying for it,” he said. “It may be the case that a particular copyright owner or rights holder might just choose to make an example of a couple of people.”