Notice & Terminate

In his Toronto Star Law Bytes column Canadian Law Professor Michael Geist discusses the recent call of the Canadian Recording Industry Association (CRIA) to introduce a "notice and terminate" scheme for removing alledgedly copyright infringing material by ISPs. Rather than start up a take down procedure after a notification that a subscriber offers copyrighted materials for download through P2P, the CRIA proposes that an ISP "ought to kick that subscriber off the system." No due process, no verification if the accusation of alledged infringement actually holds ground, just pull the plugs.

Rightfully Geist dismisses this call as unfair and unworkable and provides an alternative system, characterized by four steps:

"First, a copyright holder, having exercised appropriate due diligence in confirming an alleged infringement, sends a notice to the ISP.
Second, the ISP promptly notifies its customer of the allegation and leaves it to the customer to voluntarily take down the content.
Third, if the customer refuses to take down the content, the copyright holder applies to a Canadian court to order its removal. The ISP serves as a conduit to ensure that the subscriber is aware of the court proceeding and can challenge if desired.
Fourth, if the court issues an order, the ISP responds to the order by taking down the content."

This scheme should not only prevent over the top solutions like termination, but open up the road to a court process for customers. This would at least provide more user protection than letting a private party, with possibly disturbing economic motives and little expertise, decide if material is infringing or/not. At least, on paper. It is questionable if customers will not remove alledged infringing material without court review, to avoid costly and lengthy legal procedures.

In the U.S. the notice and take down procedure is implemented as a condition for exception to ISP liability. A service provider which expeditiously removes or disables access to infringing material after being notified by the copyright holder is provided a “safe harbour” from damages. This notification procedure has to follow a certain process, something which is missed in Europe.

The applicable article 14 of the Electronic Commerce Directive essentially leaves the procedure of notification to be regulated by codes of conduct. There is a lack of a (public) standard notice and take down procedure and without procedural safeguards ISPs might be tempted more easily to take down certain speech. Notified of alledgedly infringing or illegal content they have to make a decision: take down the content immediately, and possibly estrange a subscriber, or face potentially high liability. When making a choice between the two options the loss of a subscriber may seem to be the path of least resistance. Or better, of the least costs. The current legal regime creates an environment in which the incentives to take down content are higher than not taking down.

It's time Geist starts giving some lectures in Brussels.