• M. Myschyshyn (Law Student)

Couch Potato Criminals - piracy, set-tops and 'tater offenders (a student perspective)

The film industry is a multi-billion dollar market and has provided the Canadian economy with many jobs.[if !supportFootnotes][1][endif] Despite the entertainment and economic benefits that movies and TV programs offer Canadians, efforts targeting the illegal acquisition of content protected by copyright are becoming increasingly common. The Criminal Code has limited and dated information regarding copyright infringement. Section 432 (1) of the Criminal Code states that a person who records a movie, without the consent of the theatre manager, is guilty of an indictable offence and liable to imprisonment for up to 2 years or guilty of a summary offence.[if !supportFootnotes][2][endif] Section 432 (2) states that imprisonment may be increased up to 5 years if a person sells the unauthorized recording.[if !supportFootnotes][3][endif] In the age of Internet piracy, this section of the Criminal Code is essentially moving fast out of date. Sections 42-43 of the Copyright Act contain a more detailed description of criminal offences resulting from copyright infringement.[if !supportFootnotes][4][endif]

Today, copyright protected content can be readily obtained, albeit illegally, from the Internet, and many Canadians actively engage in this conduct.[if !supportFootnotes][5][endif] Ten years ago, De Vany and Walls estimated the box-office revenue losses of a single movie due to Internet piracy.[if !supportFootnotes][6][endif] Assuming the movie studied was a fair representation of any given movie, Internet piracy could account for 30-40% of box office sales.[if !supportFootnotes][7][endif] In 2012, the Copyright Act was amended to address, among other things, challenges of copyright protection in the age of the Internet.[if !supportFootnotes][8][endif]

In the past few years there has been an increase in popularity of TV set-top boxes with pre-loaded applications that can conveniently stream or download copyright protected content from illegal websites and play the content directly on a user’s TV. These TV boxes require software to enable access of media on the Internet. One popular media software for TV boxes is called Kodi.[if !supportFootnotes][9][endif]

Kodi is an open-source software created by a non-profit organization that allows anyone to design Kodi add-ons. Users can then access these add-ons, making the home entertainment experience more enjoyable. This process is similar to purchasing third party apps on the Apple App Store. The issue is that people have designed Kodi add-ons that can access copyright protected content from illegal websites. Kodi openly states that it does not condone piracy or the so called illegal add-ons that are able to facilitate piracy.[if !supportFootnotes][10][endif]

In April 2017, the European Court of Justice ruled that the sale of TV boxes with pre-installed add-ons that enable access to copyright protected content without consent of the rights holders is illegal.[if !supportFootnotes][11][endif] In October, 2017, an English court affirmed this ruling when a man in Middlesbrough, England was given an 18 month prison sentence and was suspended for two years for selling TV boxes with illegal pre-installed add-ons.[if !supportFootnotes][12][endif] Currently, in the United States, there are some lawsuits that have been launched by big media names like Netflix and Dish Network against similar TV set-top box sales cases.[if !supportFootnotes][13][endif]

Canada saw its first case involving TV boxes in mid 2016 in Bell Canada v 1326030 Ontario Inc.[if !supportFootnotes][14][endif] In that case, major media corporations Bell, Rogers, and others launched a suit against several individuals and businesses selling TV boxes with illegal add-ons pre-installed. The only defendant who bothered to show up in court was Mr. Westley, an online salesman of the pre-configured boxes, who argued that the plaintiffs had not proven that any copyright infringement had occurred.[if !supportFootnotes][15][endif] The judge ruled that Mr. Westley and the other defendants had provided consumers with easy access to copyrighted content that did constitute an infringement under section 27 of the Copyright Act.[if !supportFootnotes][16][endif] In response, the plaintiffs were awarded an interlocutory injunction, prohibiting the sale of the pre-configured boxes, which was held up on appeal.[if !supportFootnotes][17][endif]

So, in Canada and elsewhere, the sale of TV boxes is legal until the box is configured with pre-installed add-ons that enable access to illegal content. However, box owners are still able to easily install copyright infringing add-ons themselves. Moreover, access to copyright protected content can be directly obtained from illegal websites from any computer. As part of the 2012 Copyright Modernization Act, a copyright infringement notice system was implemented in attempt to discourage Internet piracy for private use.[if !supportFootnotes][18][endif] This notice system enables a copyright holder to send infringement notices to a person who participates in Internet piracy. The notices are sent from the copyright holder to the Internet service provider (ISP), who then must send the notice to their client who allegedly was using their Internet services for illicit purposes. In certain cases, the identity of the infringer can be gleaned through their Internet Protocol (IP) address. The rights holders then contact the service provider who supplies the IP address. The notice is not meant to manifest into any criminal proceeding and is meant to simply discourage online infringement. The rights holder may obtain the identity of the user behind the IP address with a court order and sue the infringer.

Section 38.1 (1) (b) of the Copyright Act states that statutory damages in the sum of $100 to $5000 may be awarded to the rights holder for non-commercial infringements. However, this notice system is fundamentally flawed since any user can easily encrypt their IP address using a Virtual Private Network (VPN, which are freely available. Moreover, ISPs cannot be held liable for providing Internet to individuals who infringe copyright because it would be impractical for them to monitor activity of all their clients; hence ISPs lack knowledge, or a mens rea component (even an objective liability component would be difficult to demonstrate), for copyright infringement.[if !supportFootnotes][19][endif]

Piracy is a crime and it affects both the quality and quantity of content available to consumers.[if !supportFootnotes][20][endif] An astonishing number of Internet piracy infringements occur worldwide.[if !supportFootnotes][21][endif] If Canada is interested is fixing this problem it would take a tremendous amount of effort from experts in various fields. Shutting down sources of illegal content seems like the most feasible way to eliminate Internet piracy. Efforts should be targeted at individuals who create and manage these sources. Many people do not see Internet piracy as a big deal, and so, efforts directed in changing societal perceptions of Internet piracy would also be fruitful.[if !supportFootnotes][22][endif]

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Endnotes

[if !supportFootnotes][1][endif] https://www.actratoronto.com/advocacy/industry-facts/.

[if !supportFootnotes][2][endif] Criminal Code, RSC 1985 c C-46, s 432 (1).

[if !supportFootnotes][3][endif] Criminal Code, RSC 1985 c C-46, 432 (2).

[if !supportFootnotes][4][endif] Copyright Act, RSC 1985, c C-42, ss 42-43.

[if !supportFootnotes][5][endif] http://canipre.com/insight.html.

[if !supportFootnotes][6][endif] Arthur S De Vany & W David Walls, “Estimating the Effects of Movie Piracy on Box-office Revenue” (2007) 30 Rev Ind Organ 291.

[if !supportFootnotes][7][endif] https://www.quora.com/How-much-income-does-the-film-industry-lose-to-piracy.

[if !supportFootnotes][8][endif] Copyright Modernization Act, SC 2012, c 20.

[if !supportFootnotes][9][endif] https://kodi.tv/about/software.

[if !supportFootnotes][10][endif] https://kodi.tv/article/having-issues-free-movies-tv-shows-sports-iptv-streams.

[if !supportFootnotes][11][endif] http://curia.europa.eu/juris/celex.jsf?celex=62015CJ0527&lang1=en&type=TXT&ancre=.

[if !supportFootnotes][12][endif] https://www.theguardian.com/tv-and-radio/2017/oct/20/trader-who-sold-tv-kodi-boxes-enabling-free-streaming-of-paid-content-avoids-jail.

[if !supportFootnotes][13][endif] https://arstechnica.com/tech-policy/2017/10/mpaa-netflix-amazon-join-up-to-sue-tickbox-tv-for-piracy/; https://torrentfreak.com/images/0b176c04-5f41-4375-9d73-ffdaf1a1af8a.pdf.

[if !supportFootnotes][14][endif] Bell Canada v 1326030 Ontario Inc, 2016 FC 612, 2016 CarswellNat 4945 [Bell].

[if !supportFootnotes][15][endif] Bell at para 16.

[if !supportFootnotes][16][endif] Bell at para 22.

[if !supportFootnotes][17][endif] Wesley v Bell Canada, 2017 FCA 55, 2017 CarswellNat 1491.

[if !supportFootnotes][18][endif] https://www.ic.gc.ca/eic/site/oca-bc.nsf/eng/ca02920.html

[if !supportFootnotes][19][endif] Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, 2004 CSC 45.

[if !supportFootnotes][20][endif] https://www.theguardian.com/film/2014/jul/17/digital-piracy-film-online-counterfeit-dvds.

[if !supportFootnotes][21][endif] https://www.go-gulf.com/blog/online-piracy/.

[22] https://www.go-gulf.com/blog/online-piracy/.[endif][if !supportFootnotes]