I am not licensed to practice law in Canada, and my knowledge (as far as I am able to share) is limited to U.S. Copyright Law, and the states in which I am licensed.
That being said, I have received more than just a few inquiries from those of you who have received “DMCA Copyright Infringement Notices” from your ISPs in Canada and Australia, and I thought it was time to clarify which ISPs appear to be “working” with Ira Siegel (CEG-TEK), and what their capabilities appear to be.
HOW CAN CEG-TEK SEND OUT LETTERS TO CANADIAN CITIZENS, AND WHICH CANADIAN ISPs APPEAR TO BE WORKING WITH CEG-TEK?
So far, infringement notices began to be sent out to Canadians under a loophole which allowed U.S. copyright holders to send infringement notices to Canadian subscribers. While many have received these notices, it appears to me that CEG-TEK is focusing on the following ISPs:
Rogers Communications (a.k.a. Rogers Cable)
Shaw Communications Inc. (a.k.a. Shaw Cablesystems G.P., or “sjrb.ca”)
Electronic Box Inc.
TELUS Communications Company
Start Communications (a.k.a. “start.ca”)
TekSavvy Solutions Inc.
Now obviously there are others out there, but these seem to be where the focus of the letters seem to be going out. Also, remember that CEG-TEK spends a large amount of time recruiting ISPs to sign on to their “cause” to eliminate piracy. I remember how happy they were when in the U.S., they got COX Communications to start working with them. No doubt, they are working to recruit more and more ISPs every day, and these few ISPs seem to be the Canadian ISPs that CEG-TEK appears to be regularly using to send out the DMCA settlement demand letters.
WHAT DO THE CANADIAN ISPs [WHO WORK WITH CEG-TEK] APPEAR TO BE PROVIDING THEM?
Originally, I expected that because of the Canadian loophole, that CEG-TEK was sending these “blind,” meaning, not knowing who the downloader is. But, because of recent trends (where CEG-TEK is now picking up “additional cases” which were downloaded by that same user sometimes weeks or months ago), I am now understanding that certain Canadian ISPs (my best guess, Bell Canada, Rogers, Shaw, and possibly the others) are working with CEG-TEK to provide them 1) geolocation data as to where the downloads are taking place, and/or 2) lists of past IP addresses which have been leased to that internet user / subscriber over the past twelve months (or, whatever that ISPs “IP Retention Policy” before they purge the IP address data for older records).
Thus, Canadian CEG-TEK cases are starting to look and act more like U.S. CEG-TEK cases as far as them having the ability to identify who the subscriber is, and being able to “look back in time” to see what other bittorrent downloads belonging to their many clients [that their bots tracked on the bittorrent networks realtime weeks or even months ago] these subscribers participated in.
EVEN IF THEY KNOW WHERE YOU LIVE, WHAT ARE THE CHANCES THAT THEY WILL SUE YOU IN CANADA?!?
A few months ago, I was concerned that copyright holders might start suing Canadian account holders who ignored the DMCA settlement demand letters that were sent to the ISP. They even shared details about the Canadian lawyer that they were going to hire to sue defendants in Canadian courts. But that never happened, and I know why.
Copyright infringement in the U.S. carries statutory damages of $150,000 USD per instance of infringement. In Canada, there is a legal cap of $5,000 CAD for many instances of infringement. And then if they obtain a judgement against an internet user in Canada (whether that lawsuit was filed in the U.S., or whether it was filed in Canada), what are the chances that a U.S. based copyright holder would spend the time to enforce a judgement in a Canadian court in order to seize the bank account or garnish the wages of a defendant who was found guilty of copyright infringement?!? My best guess is zero, simply because the laws in Canada are different than the laws in the U.S., and it is simply not worth it financially to pay a Canadian attorney “go after” the bank accounts for what would be a maximum amount of $5,000 CAD (or, $3,500 USD). The attorney would cost that much alone just to succeed in collecting the funds. For this reason, there is absolutely no reason why it makes sense to 1) sue a Canadian for copyright infringement in Canada, and even if they did sue and win, 2) there is almost no likelihood that they would pay a lawyer to enforce the judgement against the Canadian and/or seize their bank accounts and/or assets in local Canadian courts… not for $3,500 USD.
Thus, if a Canadian citizen is concerned that they will be sued in Canada, and that they will have their assets seized, they are probably better off ignoring the DMCA letter rather than settling it. I really don’t think any U.S. based copyright holder will spend all that effort to sue and collect against a Canadian citizen. It is simply too costly.
Similarly, I am not even worried about a Canadian being sued in the U.S. for copyright infringement, because even if the copyright holder sues AND wins a judgement of $150,000 USD in a U.S. federal court, what are the chances that 1) the copyright holder will go through the effort to enforce that U.S. judgement to seize the assets of a Canadian citizen in a Canadian court, and 2) since there is such a large difference in penalties between the laws governing copyright infringement in the U.S. and in Canada, what are the chances that a CANADIAN JUDGE (with knowledge of the disparity between the laws) will enforce a $150,000 USD judgement against a Canadian citizen?!?
HERE IS THE ONLY REASON A CANADIAN MIGHT CONSIDER SETTLING THE CLAIMS AGAINST HIM/HER:
If the Canadian accused of downloading copyrighted materials via bittorrent is concerned that maybe they will be named and served as a defendant in a U.S. federal court, and they have a reputation that they must preserve (meaning, they have little-to-no risk tolerance of having their name become associated with being part of a pornography or piracy lawsuit), AND THE COPYRIGHT HOLDER IS A “COPYRIGHT TROLL,” (meaning, they have sued John Doe Defendants in the U.S. courts, or they have made known that they intend to sue defendants who ignore the DMCA copyright infringement letters that are sent to accused internet users), ONLY THEN does it make sense to settle a CEG-TEK claim against you.
Why? Because as soon as an individual is named and served as a defendant in a U.S. lawsuit, there are many “spiders” and “robots” which comb the U.S. District Court (federal) court cases, and report and index the names of the court cases on the various search engines. That way, if someone (e.g., an employer, a creditor, or someone who wants to dig up information on a particular person) does an internet search for that person’s name, then that person’s name and his involvement in the lawsuit will show up as one of the top entries on the search engine’s results, along with the case information.
And to make matters worse (which is why I would like to see some discretion on the part of the websites NOT to index the names of defendants in search engine results), even if that accused defendant did not do the download, or EVEN IF THAT DEFENDANT FIGHTS THE CHARGES AND WINS — FOREVER, THAT NAMED DEFENDANT WILL HAVE THE FACT THAT THEY WERE IMPLICATED IN A COPYRIGHT INFRINGEMENT LAWSUIT FOR PORNOGRAPHY OR PIRACY attached to their search engine results.
This is the most powerful leverage a copyright holder has over an accused defendant, namely, that even if he fights the case and wins, his reputation will forever be tarnished, and for this reason alone people settle the claims against them, even before there is a lawsuit. I have spoken to hundreds (if not thousands of accused defendants) over the years, and this is the primary reason people (even U.S. citizens) settle.
[Personally, this is why I would like to see the laws changed to make it a crime (or more likely, very heavy civil fines, penalties, or sanctions) to name and serve a defendant without having a higher threshold of evidence (e.g., “clear and convincing” rather than “more likely than not”) that it was them who did the crime they are accused of. Too many families have had their reputations ruined because some overzealous attorney accused them of a crime they did not commit.]
Because of the leverage a copyright holder yields over an accused defendant that they may sue, this is why I read the press releases and follow the financial lives of many of the copyright holders — so that I can properly predict what they will or will not do in the future. This is also why I make such a large distinction on this blog and when discussing cases with potential clients of distinguishing those copyright holders who are “copyright trolls” (those who have sued in the past, or are likely to sue in the future) versus those who have not yet sued in the U.S. federal courts, and those who (in my opinion) will never sue. That way, at least I can properly advise clients as to which copyright holders pose the greatest risks, and which copyright holders they can ignore based on who the copyright holders are, what they have done in the past, and what they have publicly stated (in court cases, motions, press releases, and on website articles) that they will do in the future.
So for those of you who live in Canada, or Australia, or whatever countries the U.S. copyright holders will go next to enforce their rights, please be level-headed when receiving these infringement notices from CEG-TEK and the like. In some cases (especially for those in Canada), there is almost NO CHANCE that you will be sued in Canada, or that your assets or Canadian bank accounts will be seized. If you are sued in the U.S. (the more likely result), there is little-to-no chance that the copyright holders would pay Canadian attorneys to enforce a U.S. judgement against a Canadian citizen because of the currency differences and conflict of laws between the U.S. and Canada.
The only reason to settle — if you are going to settle at all — is if you have a copyright holder who is a “copyright troll,” and you are concerned that you will be named and served as a defendant in a U.S. lawsuit, and that your involvement in that lawsuit (whether or not you are found guilty) will tarnish your reputation abroad when someone searches your name. Otherwise, learn who your copyright holder is and if there is a low risk of them suing you, save your money.
LEGAL DISCLAIMER: I personally find it silly to see attorneys place disclaimers on website articles, but here it is actually appropriate. In this article, I am not suggesting that any person ignore a settlement demand letter that is sent to them, nor am I suggesting that they settle the claims against them. I am also merely stating my thoughts about the likelihood of being sued so that they can evaluate their options and the risks and rewards of each course of action. These are not legal opinions, nor are they to be considered advice to act upon or not act upon.
Every person’s situation is different, and every person has a slightly different set of circumstances that can affect whether the best course of action is to ignore, fight, or settle, and every copyright holder similarly makes the same financial risk-reward analysis of whether it makes financial sense to take a particular action. Often, lawyers take actions which do not make financial sense for an alternative reason, e.g., to get a judgement in a particular location against a poor person, NOT to ever collect that judgement, but as a trophy or a weapon to show the next set of would-be defendants that he is ready, able, and willing to pursue a particular line of attack against them as just as they did to so-and-so. The opinions stated here are my own calculations based on my own understanding of the circumstances.
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