Canadian Hosting Providers - how do you handle copyright and trademark complaints

Hello,

I'm wondering how other Canadian Hosting Providers handle copyright and
trademark complaints about customers on their network. I'm thinking of
just handling them the same as a DMCA notification should be handled but
since there's no forced takedown provisions in the Canadian copyright act
(that I know of?) it's difficult to say what is better. I'd kind of like
if our customers could enjoy some freedom from the sledgehammer of the DMCA
*but* still being subject to copyright and trademark infringement laws of
course. I have to admit - this is my ignorance. I'm quite familiar with
the DMCA and the litigation that usually ensues during american trademark
infringement already but not Canadian copyright laws or trademark laws.

I do intend to consult with a real lawyer about this eventually but I want
to have intelligent questions or suggestions before that happens.

Also how are trademark infringement issues handled differently than
copyright issues in Canada?

Voluntary notice-and-notice. Mostly automated based on ACNS reports that the majority do. Haven't really dealt any takedowns.

My personal favorite is the number of notices that we receive as DMCA takedown notices, citing the specific laws.

Most of the notices come from people who are unable to comprehend that US Laws don't apply outside of the US.

Sk.

Voluntary notice-and-notice. Mostly automated based on ACNS reports that the majority do. Haven't really dealt any takedowns.

Hi Landon,

I'm not sure US copyright laws even apply to us here in Canada?
What countries have no internet laws?

N.

Canada signed the WIPO Copyright Treaty in 1997:

http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16

I don't know enough about Canadian law to say whether you need to ratify
it or "accession" it before it becomes Canadian lawŠ

HTH,

My personal favorite is the number of notices that we receive as DMCA
takedown notices, citing the specific laws.

Heh... In an ideal world; you'd provide them an "agent" for
copyright takedown requests, that they must send canadian postal mail
to, with the request, and a notarized signed statement taken under
penalty of perjury; no e-mail, because you can't e-mail a check,
AND you can't authenticate the signature on an e-mail --- the sender
can always repudiate it claiming the penalty doesn't apply to them,
because that message was sent by accident (therefore false messages
would not be under a penalty, therefore.... invalid notices).

In addition, to the signed letter, require a check to cover processing
and takedown ~ $100 processing per URL/domain/customer, required to
process the legal request, plus 24 hours of time after check clears
in order to give advance notification to the customer, and hosting
fee for that customer for 14 days -- to cover the refund to the
customer: after the customer has provided the provider with a copy of
their counternotice.

I suspect 'erroneous' and 'faulty' notices, or 'maliciously false'
notices intended to suppress (strategic copyright letters against
public participation), would greatly diminish: were all providers to
require such a thing as a manually written signature from a human,
for each letter: in a tangible paper form, not electronically
transmitted.

US laws apply where ever the US says they apply.

The question is how enforceable the US law is your country. There is probably a Hollywood lobbyist who is insisting on drone strikes on servers that offend the DMCA :slight_smile:

Copyrights owned by people in the US are recognized in Canada, due to
Canada having signed the berne convention; by virtue of owning a US
copyright, a person automatically owns the exclusive rights in Canada
as well.

If a rights holder's copyright is infringed by a subscriber/provider
in canada, the rights holder might either go to court in Canada, and
get judgement from Canadian court, or go to court in the US, get
their judgement in the US, and then go visit a court in Canada, to
get their US judgement recognized in Canada.

The DMCA doesn't require takedowns. The DMCA provides a "safe
harbour" for internet service providers and another safe harbour for
information services to be protected from liability. For
information services, the safe harbour is lost, if they do not
follow the rules about takedown notices.

It is not clear that an information service provider in Canada will
enjoy the same protections and assurances, even if they follow the
US safe harbor rules.

Furthermore, it is not clear that a service provider in the US will
enjoy the DMCA safe harbor protections, if the rights holder is in
Canada, and the case against them is tried in a Canadian
jurisdiction....

If you are in Country X, and you might have rightsholders in
Country X or Country Y, Z, that might go after you on the way to
one of your subscribers...

You should probably retain some legal counsel for appropriate recommendations.

I beleive Great Britain is also a Berne signatory, which makes this legislative
gem from London rather... problematic:

http://copyrightblog.co.uk/2013/04/29/d-err-cretins-1-creators-0/

(tl:dr vastly oversimplified - if you can't easily identify the copyright
owner, it's free for the taking, rather than not usable without permission.
So if you posted an awesome sunset picture from your vacation on Flickr, and
somebody reshared it on another site, an advertising agency can find it, not
be able to find you easily, and run with it as the artwork for an ad campaign)

Some lawyers are about to get rich.

My personal favorite is the number of notices that we receive as DMCA
takedown notices, citing the specific laws.

I'm not sure US copyright laws even apply to us here in Canada?
What countries have no internet laws?

N.

US laws apply where ever the US says they apply.

How do you figure that?

The US power to enforce US law is limited to:

  1. US Citizens (pretty much wherever they are, unfortunately)
  2. Things that happen within the borders of the united states
  3. Transactions involving entities within the borders of the united states or
    citizens of the US.

Beyond that, their power is supposed to be pretty limited.

The question is how enforceable the US law is your country. There is probably a Hollywood lobbyist who is insisting on drone strikes on servers that offend the DMCA :slight_smile:

One would hope that we would not be so stupid as to carry out a drone strike against Canada for DMCA. I'm pretty sure that the current administration would not authorize that. As to the previous administration, your guess is as good as mine.

Owen

My personal favorite is the number of notices that we receive as DMCA
takedown notices, citing the specific laws.

I'm not sure US copyright laws even apply to us here in Canada?
What countries have no internet laws?

N.

US laws apply where ever the US says they apply.

How do you figure that?

A government can say anything it wants to

The US power to enforce US law is limited to:

  1. US Citizens (pretty much wherever they are, unfortunately)
  2. Things that happen within the borders of the united states
  3. Transactions involving entities within the borders of the united states or
    citizens of the US.

Beyond that, their power is supposed to be pretty limited.

Limited by who?

A government can pass any law that it wants to and apply it to anyone. It then becomes a question of how it enforces that law and that is limited by its ability to project power. See

     http://en.wikipedia.org/wiki/The_Mouse_That_Roared

My personal favorite is the number of notices that we receive as DMCA
takedown notices, citing the specific laws.

I'm not sure US copyright laws even apply to us here in Canada?
What countries have no internet laws?

N.

US laws apply where ever the US says they apply.

How do you figure that?

A government can say anything it wants to

That's not what you said. You said "US laws apply wherever the US says they apply."

I agree that the US government can claim its laws apply wherever they wish to clam they apply.

That is a far cry from having them ACTUALLY apply there.

The US power to enforce US law is limited to:

  1. US Citizens (pretty much wherever they are, unfortunately)
  2. Things that happen within the borders of the united states
  3. Transactions involving entities within the borders of the united states or
    citizens of the US.

Beyond that, their power is supposed to be pretty limited.

Limited by who?

Unfortunately, that is the real crux of the matter, now, isn't. However, at least on a theoretical level, the government should be limited by the powers granted to it by the constitution and by the voters.

A government can pass any law that it wants to and apply it to anyone. It then becomes a question of how it enforces that law and that is limited by its ability to project power. See

Yes and no. Depends somewhat on the structure of the government. In the case of the united States, Congress can pass any bill that they want, however, absent a 2/3rd majority, it then needs signature of the president. Beyond that, you still have the issue that the judiciary may strike that law down as unconstitutional.

As an example, I'm quite certain that if the US Congress passed a law stating that we would tax all Spanish citizens residing on Spanish soil $100 per year in perpetuity, that law would have the following problems:

  1. The president would probably never sign it.
  2. If the president signed it, the supreme court would likely demonstrate that it can, in fact, act with great
    haste in repealing it.
  3. I doubt that any Spanish citizen on Spanish soil would have any belief whatsoever that the law actually
    applied to them.
  4. For any meaningful value of the word "apply", the law would not actually apply to said citizens.

Finally when it came to enforcing the law, I doubt that the US tax collectors and law enforcement officers would be welcomed into Spain with open arms to carry out this application of law. While the US may well be capable of taking on the EU militarily, I suspect it would be very costly to do so and it certainly wouldn't be well supported by the citizenry which I believe would make it difficult for the government to sustain said revenue collection campaign.

Owen

Skip the hypotheticals. Go read Lincoln's Emancipation Proclamation, and
pay *very* careful attention to the exact wording, and where it applied,
and where it didn't apply.

tl;dr: What they taught you in history and what it actually says are
probably different, unless you had a *really* cool history teacher. :wink: