Copyright infringement notices being used for advertising, ISPs say

In recent weeks, BCE Inc. and HBO have begun using copyright infringement notices to steer recipients toward legal sources of TV content — but some of the Internet service providers (ISPs) that are required to forward the letters to customers are crying foul, saying the practice amounts to advertising. Both TekSavvy Solutions Inc. and Distributel Communications Ltd. told The Wire Report that they have, since the beginning of April, received notices directing users who had infringed HBO content to services offered by Bell Media, which has rights to that content in Canada. Both companies received notices within the past month from IP-Echelon Pty Ltd. on behalf of HBO, which state: “Plus, it has never been easier to watch HBO programming legally in Canada, and stream HBO on your favorite devices, by adding HBO Canada to your television subscription to watch current programs or by subscribing to Bell Media’s CraveTV at to watch all of the best programs from the HBO library.” TekSavvy said it also received a notice from Bell Media regarding its own content. A notice regarding the Bell Media TV show Orphan Black reads: “It is easy to watch your favourite programs legally. Whether you watch on your phone, tablet, computer or TV, you can catch up on all of the old seasons of Orphan Black on CraveTV and watch every episode from this season on Space. Please visit or , or check out the on-demand listings and program guide available from your TV service provider.” Distributel CEO Matt Stein said in a phone interview that the company is now working with Bell Media on changing the language and coming up with a solution. Stein said Distributel hasn’t seen similar notices from other companies, but noted that “there are many thousands of notices flying around. We haven’t done an exhaustive search.” The concern the company has with these types of notices is that they’re “being used effectively to trigger an advertisement, to advertise and market a service, in particular,” he said. “The notice-and-notice regime was not designed as a marketing tool. It was designed to notify … potential downloaders of this content that they’ve downloaded content and so forth.” That regime, which requires ISPs to forward to subscribers copyright infringement notices sent to them by rights holders, began in January 2015. TekSavvy chief regulatory officer Bram Abramson said in a phone interview that it’s “a lot better and it’s a lot more defensible to tie the program that they’re saying has been improperly downloaded or shared as opposed to just tying it to a general service,” as Bell did in its notice for Orphan Black, compared to the notice from IP Echelon that referred to all HBO content. The issue with including promotional language in the advertisements in general, he said, is that “it’s leveraging us to pay for their advertising.” ISPs “spent significant sums of money putting together systems that notify end users and the purpose of building these systems was clear — it’s to notify end users that they may have infringed copyright,” he added. “Going beyond that and grafting another purpose onto it … it would seem to sort of expand the scope of what was mandated, by leveraging it for more general advertisements.” Bell Media spokesman Scott Henderson said in an email that “Bell Media believes that creators, consumers, and ISPs benefit from directing viewers to legal sources of content, and our notices adopt this best practice, as do some of our U.S. partners. This consumer-friendly, educational approach is a better alternative than the issuing of settlement demands." Allen Mendelsohn, an independent Internet lawyer in Montreal, said in a phone interview that “all of this stems from the fact that the notice-and-notice system has absolutely no requirement or specification as to what can or should be in one of these notices,” and that no one monitors the notices. “This is a natural extension of the system, using it as a marketing vehicle, because there’s absolutely nothing in the law that says what you can or cannot say in these notices." Mendelsohn said in a follow-up email that the fact that one company is now negotiating on a compromise to the wording doesn’t affect the issue overall, since other companies could choose to send similarly problematic notices in the future. Distributel is concerned that forwarding the notices could be an infringement of Canadian anti-spam legislation, Daniel Puckett, vice-president and chief information officer, said in the phone interview. “We believe that by including advertisements, it steered too far away from what the notice-and-notice regime envisioned, and was then in contravention of itself, the delivering of the commercial message to people that have specifically said ‘I don’t want to receive commercial messages,’” he said. Mendelsohn said that in his opinion, the notices don’t infringe those rules, because that legislation allows for communications if parties are in a contractual relationship — as the ISPs have with their customers. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Copyright infringement notices being used for advertising, ISPs say

Broadcast | April 27, 2016

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Copyright infringement notices being used for advertising, ISPs say

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