Home -> Law Blog Directory -> Copyright Law Blogs -> Michael Geist

Copyright Law

: Michael Geist

Rogers Provides New Evidence on Effectiveness of Notice-and-Notice System

By Michael Geist

Bill C-32 looks to be headed for the dustbin if Canada heads into an election this week, but the C-32 committee is still ongoing until someone pulls the plug on the current Parlimentary session. Rogers, Telus, and Bell appeared yesterday and the discussion unsurprisingly focused on the notice-and-notice approach currently used by ISPs and codified within the bill. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization on file sharing systems. The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.

While some rights holders (who the committee learned played a role in establishing notice-and-notice in the first place) have claimed the system is ineffective, Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers - far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. 


This provides solid evidence that notice-and-notice is effective in countering repeat infringement. Although the CRIA-backed Balanced Copryright for Canada group mistakenly claimed this means that one third of alleged infringers receive at least three notices, the reality is that the Rogers data suggests that 67% of recipients (which is already only five percent of subscribers) do not repeat infringe after receiving a notice and 89% cease allegedly infringing activity after a second notice. Within two notices, about 99% of Rogers subscribers are not receiving infringement notifications. 

Those numbers are very similar to data from the Entertainment Software Association of Canada, which found that 71% of notice recipients did not place an infringing file back on BitTorrent systems (though the ESAC chose to focus on the 29% that did repeat infringe, the numbers are consistent with Rogers' experience). Similarly, the Business Software Association told the CBC in 2006 that the notice-and-notice approach has "been most effective." Further, these numbers are also similar to the piracy reduction targets that the UK government has set and which have been lauded by some Canadian rights holders.

The Rogers data does leave about 1% of its subscribers as repeat infringing after two notices (the number drops far below 1% after the third notice).  While some rights holders will claim that this shows there is a need for severe consequences for the tiny fraction of users that ignore notices, the reality is the opposite is true. If any notice system is designed to educate the public and discourage infringement, it is readily apparent that notice-and-notice works extremely well since it is a tiny part of the population that seemingly ignores the notification. Moreover, if there are a couple of outliers in the population - the Rogers data showed about 1 in 800,000 at the extreme end of the spectrum of several dozen notices to a single household - there is absolutely nothing to stop the rights holder from taking legal action against those individuals. There is no need to threatens tens of thousands with cutting off Internet access, when rights holders are perfectly capable of taking action against the (literally) handful of people that repeatedly infringe at the extreme end of the scale.

The committee discussion also touched on the digital lock rules in Bill C-32. Rogers indicated that it supported some digital locks, but that it is opposed to copy control provisions in C-32 that would prevent Canadians from engaging in common consumer activities such as format shifting, time shifting, and backup copies. The ISP opposition to the current C-32 digital lock approach was echoed in the second C-32 panel, where the Canadian Federation for Humanities and Social Sciences and the Canadian Library Association both called for the right to circumvent for non-infringing purposes. In fact, the CLA said the bill is "fundamentally flawed" without such a change.  While Bill C-32 seems set to die on the order paper, there will undoubtedly be another copyright bill with another government and the information on the effectiveness of notice-and-notice - as well as the steadfast opposition to the C-32 digital lock approach - must be taken into account.

Full post as published by Michael Geist on March 23, 2011 (boomark / email).