It’s a pirate’s life—in Canada

A broad overview of the legality of peer-to-peer file sharing and related copyright infringement from a Canadian perspective

What is peer-to-peer file sharing?

In the simplest terms possible, peer-to-peer (P2P) file sharing is a method of distributing and downloading files. More complexly, P2P file sharing relies on a group of internet users, known as peers, voluntarily connecting their computers to form a network that allows them to share and download files.

Peers use websites known as trackers to locate files that other members of the network are sharing, and download and assemble the files using software known as clients. Unlike in traditional file sharing models that rely on direct file transfers from one user to another, P2P file sharing allows users to connect with all peers in the network currently sharing the file they want and download different pieces of the file from multiple different peers simultaneously. Once a peer has downloaded a file, they then become what known as a seeder and are able to share that file with other peers within the network.

The most popular P2P file sharing protocol is known as BitTorrent, and is estimated to have anywhere from 150 to 300 million users [1].

Is it legal?

While the short and sweet answer to this is yes—peer-to-peer file sharing and the technology behind it is, in and of itself, legal in Canada—it’s the type of files being shared that determine the legality of P2P file sharing on a case by case basis.

For users (or peers)

Users sharing and downloading content that is no longer under copyright or to which they personally hold or have been granted (under copyright or creative commons licensing) the rights to do so have little or nothing to fear. Of course, of all content available through BitTorrent file sharing an estimated 99.97% of it is copyrighted material [2], and it is the sharing and downloading of these files that could land you in hot water.

Section 27 subsection (1) of the Canadian Copyright Act clearly states:

It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do [3].

Given that copyright (without any special creative commons licensing) gives the creator of an original work exclusive rights to its use and distribution, sharing and/or downloading (which requires creating a copy of) content via P2P file sharing is a clear case of copyright infringement and therefore illegal.

For P2P site owners

It’s not only peers or members of P2P networks that could be breaking the law. There are many peer-to-peer file-sharing networks, and affiliated services, that could also find themselves in a legal bind based on the types of files being shared, and/or the copyright infringement made possible by the network.

Within Canada there are in fact specific laws governing the use of “digital networks” and their connection to possible acts of piracy. According to section 27 subsection (2.3) of the Canadian Copyright Act:

It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service [4].

There are numerous conditions considered by the court when determining whether a person has in fact infringed copyright under subsection (2.3), but in broad terms, what this means is that popular peer-to-peer networks and their related services that facilitate the free sharing of content and material still under copyright (and the people who run them) could be breaking the law. This would, of course, include torrent trackers such as isohunt, Torrentz, and KickassTorrents.

The debate over P2P site owner responsibility

Although the Canadian government feels that site owners are infringing copyright by facilitating the copyright infringement of others, whether or not P2P site owners should be held responsible is still hotly debated among members of the tech and legal communities.

The most common argument presented in defence of P2P file sharing sites, regardless of the type of content they are hosting, rests on the idea that these sites (and the technology behind them) were not created with the intention of facilitating illegal activity; it is the choices made by individual users that leads to copyright infringement, and these choices are not under the control of site owners.

A common metaphor used to illustrate this argument compares the use of a P2P file-sharing network to the purchase of a vehicle. While the vehicle was not designed with the sole intention of breaking the law, once the driver is in possession of it, they are capable of exceeding the speed limit or driving while impaired or distracted, through their own personal choices—choices for which the vehicle manufacturer is not held responsible or liable despite the facilitation of those choices by the vehicle [5].

Countering this defence of P2P site owners, policymakers argue that it is not the mere fact that illegal file sharing happens that places the legal onus on site owners, but rather numerous factors including, but not limited to, the site owners’ knowledge of these activities and failure to take measures to prevent them.

This is clearly spelled out in the Canadian Copyright Act section 27 subsection (2.4) which lists the conditions used to determine whether copyright infringement has occurred under subsection (2.3). These include:

(a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement;
(b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement;
(c) whether the service has significant uses other than to enable acts of copyright infringement;
(d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so;
(e) any benefits the person received as a result of enabling the acts of copyright infringement; and
(f) the economic viability of the provision of the service if it were not used to enable acts of copyright infringement [6].

Of course, there are still those who dispute the validity of the above conditions, and it is unlikely that the government, legal, and tech communities will come to a consensus on the matter any time soon, but for now it is the Canadian government that has the final word on the matter.

Copyright law in action

While all this legalese might make Canada seem like it’s taking a hard stance on the illegal sharing of files, despite producing legislature identifying the potential use of P2P file sharing for copyright infringement, things above the 49th parallel have been pretty quiet—something that can’t be said for other countries around the world.

With many governments taking a similar stance to Canada, numerous P2P site owners and users have found themselves in trouble with the law.

The most famous instance of a copyright infringement lawsuit against a P2P file sharing site is, of course, the 2009 shutdown of the Sweden-based tracker The Pirate Bay—a case that made international headlines with the arrest of all four site founders who were later found guilty of promoting the copyright infringement of others, fined $3.5 million USD and sentenced to one year, each, in prison [7].

In 2006, a similar situation unfolded; this time on American soil, when the Motion Picture Association of America (MPAA) launched a lawsuit against multiple BitTorrent trackers sites including isoHunt (interestingly enough, a Canadian server hosted and owned tracker) on the basis that the site had facilitated copyright infringement. Charges were laid against isoHunt founder and Vancouver resident Gary Fung, and in 2013 Fung voluntarily shut down the tracker, agreeing to pay a whopping fine of $110 million USD [8] .

Also coming out of the U.S. is news of what’s being called “copyright trolling” with an estimated 18,000 Americans being sued by the Recording Industry Association of America (RIAA) [9] and horror stories about a woman fined $1.9 million USD for downloading 24 songs [10] .

This may all sound pretty scary, but here in Canada, not a single case has been heard against P2P site owners; the closest thing being an alleged seizure of servers from a BitTorrent site by the RCMP in May 2014. The site; however, was a Swedish tracker known as Sparvar, and RCMP were working on behalf of Swedish authorities [11]. On the user side of things, finding a case against an individual Canadian P2P user is like finding a needle in a haystack, or harder.

So what is Canada doing about illegal downloading?

While other countries around the world have been making moves made to cut piracy off at the knees by taking legal action against sites that facilitate illegal downloading or launching court cases en masse (seemingly as much a scare tactic as a tenable strategy to recoup lost profits), Canada has focused its energy on developing measures to deter users from downloading copyrighted content. Oh, and it’s being done using polite “we see what you’re doing and would like you to stop” notices and court-approved letters from copyright holders.

In 2012, Bill C-11, also known as the Copyright Modernization Act, was passed, broadening the scope of what’s covered under fair dealing with specific focus on educational uses of content under copyright [12]. Also included in the new law is what’s known as the “Notice and Notice” provisions that came into effect on January 2, 2015 [13]. Under these provisions, internet service providers (ISPs) are required to pass along notices of suspected copyright infringement to users from copyright holders—they’re also required to hold on the IP addresses of any users they contact for up to a year in case a copyright holder decides to pursue further legal action [14].

That’s right, Canadian ISPs are sending courtesy emails, and it does, in fact, seem to be working. Rogers reported that after receiving just one notice, 67% of the recipients stop infringing—after two notices that number jumps to 89% of recipients abandoning their illegal file sharing ways [15].

Of course, if a copyright holder is dedicated enough, they can still take an individual to court, but in order to do so they’ll need to formally request the user’s information from the ISP, a process that requires federal court approval. If granted, all communication between the copyright holder and alleged pirate must be court-approved and cannot include any intimidation or scare tactics, with communication clearly indicating that a court has not yet decided the individual’s liability [16].

If a copyright holder makes it through all those hoops and takes an individual to court the returns are still fairly limited. For non-commercial copyright infringement, penalties are limited to $5000 [17], a move some legal experts are noting as the Canadian government’s way of safeguarding individuals from being exploited by media companies , and a fine that barely makes the process of going to court worthwhile.

Avast ye, mateys!

With all that said, it would seem that being a pirate (of the online variety) is pretty good if you live in Canada. While peer-to-peer file sharing site owners might have a bit more to worry about, it would seem that the government isn’t coming down as hard on individual copyright infringers—at least not as hard as one would expect given the lengthy legislation put in place. While multi-million dollar copyright infringement lawsuits are taking place around the world, all’s quiet in the great white north. Will it stay that way? It’s hard to tell, but for now, (yo ho, yo ho) it’s a pirate’s life—in Canada.

Works Cited

[1] “‘P2P Not Dead’: 300 Mn BitTorrent Users Swap TV Shows and Movies Every Month.” RT News. May 31, 2014. Accessed January 26, 2015.

[2] Flaherty, Anne. “99.97pc of BitTorrent Files Illegal – Study.” 3 News. September 30, 2013. Accessed January 26, 2015.–study-2013092012#axzz3QAbyrAs6.

[3] “Copyright Act (R.S.C., 1985, C. C-42).” Justice Laws Website. December 9, 2014. Accessed January 27, 2015.

[4] Ibid

[5] Palm, Erik. “Pirate Bay Attorney Outlines Arguments for Appeal – CNET.” CNET. May 9, 2009. Accessed January 27, 2015.

[6] “Copyright Act (R.S.C., 1985, C. C-42).” Justice Laws Website. December 9, 2014. Accessed January 27, 2015.

[7] Enigmax. “The Pirate Bay Trial: The Official Verdict – Guilty | TorrentFreak.” TorrentFreak RSS. April 17, 2009. Accessed January 28, 2015.

[8] The Canadian Press. “IsoHunt Shut Down, Canadian Torrent Firm Fined $110M US – Technology & Science – CBC News.” CBCnews. October 18, 2013. Accessed January 30, 2015.

[9] Holpuch, Amanda. “Minnesota Woman to Pay $220,000 Fine for 24 Illegally Downloaded Songs.” The Guardian. September 11, 2012. Accessed January 27, 2015.

[10] Friend, Elianne. “Woman Fined to Tune of $1.9 Million for Illegal Downloads.” CNN. June 18, 2009. Accessed January 27, 2015.

[11] Makuch, Ben. “In a Rare Move, Canadian Mounties Seized Data from a Torrent Site.” Motherboard. May 15, 2014. Accessed January 27, 2015.

[12] “Bill C-11: The Copyright Modernization Act.” Copyright at UBC. Accessed January 28, 2015.

[13] “Notice and Notice Regime.” Government of Canada. June 16, 2014. Accessed January 28, 2015.

[14] Ibid

[15] Geist, Michael. “Rogers Provides New Evidence on Effectiveness of Notice-and-Notice System – Michael Geist.” Michael Geist. March 23, 2011. Accessed January 28, 2015.

[16] El Akkad, Omar, and Jeff Gray. “Court Orders Canadian ISP to Reveal Customers Who Downloaded Movies.” The Globe and Mail. February 21, 2014. Accessed January 29, 2015.

[17] Armstrong, James. “New Regulations about Illegal Downloading Go into Effect.” Global News. January 2, 2015. Accessed January 30, 2015.

2 Replies to “It’s a pirate’s life—in Canada”

  1. All in all, a persuasive and comprehensive paper on piracy within the Canadian context. The court battles and the legal arguments presented by both sides were particularly informative; this essay also went a step further by attempting to translate legalese into simpler language, which was more than helpful. As this essay makes the case, Canada’s legal system goes easier on p2p sharing than other countries; this is probably testament to its quasi socialist/welfare ethos. But, what does this mean for p2p site owners in the long run? Can Canada turn into this permissive, ideological haven for p2p site owners/users? I would have liked to see a disquisition on the collision between Lawrence Lessig’s remix principle and the high-handed behavior of copyright owners in the context of p2p sharing, but that would require another essay altogether. But, having said that, this was a an elaborate but succinct overview of the piracy problem that did not take sides but presented both sides of the argument in a fair manner.

  2. You have done some good research, both on the copyright laws in Canada and on the lawsuits that have taken place. You present all of this research clearly.

    Unfortunately, it is just that—a summary of facts and not an essay. You could have taken all the same content and used it to articulate a position on the subject. I would have liked to find out whether you think the copyright act in Canada is fair or appropriate for these types of cases.

    For the next essay, take the same investigative skills and your ability to identify an interesting topic and use them to put forth a well-thought out point of view on the subject at hand.

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