A Canadian legal expert says amendments to Canada’s Copyright Act would put file-sharing sites like Megaupload, now subject to a U.S. court case, in hot water.
These amendments, now in Bill C-11
, would draw a distinction between “intermediaries” and “those who knowingly enable infringement of copyright,” wrote Trent Horne, a partner at Bennett Jones LLP, a Canadian law firm, in an e-mail message.
“In my view,” he wrote, “the intermediaries are those that provide access to the Internet and take no part in the selection, origination or packaging of content. This is very different that what sites like Megaupload do”.
“The proposed amendments to the Copyright Act are intended to squarely address those persons who intentionally facilitate infringement, as opposed to those that merely provide the machinery for the Internet to function.”
A lawyer representing Megaupload in the United States said that if the courts found the company responsible for what their customers were doing, it would open the gates for lawsuits against cloud providers.
But Horne says the proposed bill in Canada
would only target those who knowingly shut their eyes to possible copyright infringement by requiring ISPs, for example, to forward any notices of copyright infringement they received to customers suspected of uploading or downloading pirated content. “Additionally, ISPs will be required to retain a record of this notification, including the identity of the alleged infringer, for use if court proceedings were to follow,” said Horne.
C-11 has passed committee stage and is expected to be law by this summer.
Prosecutors in the U.S. have accused Megaupload and seven people associated with the company, including founder Kim Dotcom, of copyright infringement, aiding and abetting copyright infringement, wire fraud and money laundering. The U.S. has started proceedings to extradite them from New Zealand to the U.S., where they hope to put the company on trial.
It would be the first time a provider of cloud storage services had been charged with criminal copyright infringement in the U.S., said attorney Ira P. Rothken, who will represent Megaupload if the case comes to trial.
There is no statute for secondary infringement under U.S. criminal law. However, In a criminal case, prosecutors will have to prove primary copyright infringement, meaning the defendants knew what they were doing and willfully infringed, Rothken said.
In Canada, secondary infringement laws are generally seen as weaker than those in the U.S. and have been challenged in the past. ISOHunt.com, a British Columbia-based file sharing site. sued the Canadian Recording Industry Association in 2008 following the latter`s “threats” and petitioned the B.C. Supreme Court in 2009 to recognize the site as legitimate and not in violation of the Copyright Act.
Brian Bloom is a staff writer at ComputerWorld Canada. You can find him on Google+. He covers enterprise hardware and software, information architecture and security topics.