of the storage at the direction of a user of material that resides on a system or network
. . . if the service provider
1 does not have actual knowledge that the material or an activity using the material on
the system or network is infringing;
1 in the absence of such actual knowledge, is not aware of facts or circumstances from
which infringing activity is apparent; or
1 upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
1 does not receive a financial benefit directly attributable to the infringing activity, in a
case in which the service provider has the right and ability to control such activity; and
1 upon notification, . . . responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.’’
The notice-and-takedown provisions of the DMCA have been put to broad use and
have proven to be an effective instrument for combating copyright infringement online. This has also been seen as giving copyright owners—potentially anyone who has
fixed an ‘‘original work of authorship’’—unwarranted leverage over service providers
and their subscribers. When a provider is notified of an alleged infringement, risk aversion encourages it to remove or disable access to the specified material, probably without first informing the subscriber. The subscriber may file a counternotice and have the
content restored if the copyright owner does not file a claim in court, but such challenges are rare. 70 Subscribers, like the providers hosting their Web sites, are more likely
to concede to takedown pressures, even when an infringement may not actually be
occurring. If a subscriber is sued, his or her identity may be subpoenaed, as in cases of
defamation, and with similarly little judicial scrutiny. 71 Major search engines such as
Google comply with hundreds of removal requests a month, even though it is not
even clear that provision of a hyperlink would incur copyright liability. 72
When Canada began to consider amending its copyright laws, it appeared to be following in the footsteps of the United States. In 2004, the House of Commons Standing
Committee on Canadian Heritage retabled its Interim Report on Copyright Reform,
which proposed a ‘‘notice and takedown’’ policy similar to that of the DMCA, under
which Canadian service providers would be compelled to remove content immediately
upon receiving notice of an alleged infringement from a professed copyright holder.
The report came under fire from the Canadian Internet Policy and Public Interest
Clinic (CIPPIC), Digital Copyright Canada, and the Public Interest Advocacy Centre
(PIAC); numerous petitions and critiques followed, calling for balance between the
rights of content creators and fair public use. 73 The ‘‘Canadian DMCA’’ has since been
proposed, in the form of Bill C-61 in 2008, which appears to be even more restrictive
that the U.S. DMCA. 74 The consensus on this bill is that it is unlikely to pass, although
it continues to be a priority of the Conservative government. 75
378
United States and Canada Overview
. . . if the service provider
1 does not have actual knowledge that the material or an activity using the material on
the system or network is infringing;
1 in the absence of such actual knowledge, is not aware of facts or circumstances from
which infringing activity is apparent; or
1 upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
1 does not receive a financial benefit directly attributable to the infringing activity, in a
case in which the service provider has the right and ability to control such activity; and
1 upon notification, . . . responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.’’
The notice-and-takedown provisions of the DMCA have been put to broad use and
have proven to be an effective instrument for combating copyright infringement online. This has also been seen as giving copyright owners—potentially anyone who has
fixed an ‘‘original work of authorship’’—unwarranted leverage over service providers
and their subscribers. When a provider is notified of an alleged infringement, risk aversion encourages it to remove or disable access to the specified material, probably without first informing the subscriber. The subscriber may file a counternotice and have the
content restored if the copyright owner does not file a claim in court, but such challenges are rare. 70 Subscribers, like the providers hosting their Web sites, are more likely
to concede to takedown pressures, even when an infringement may not actually be
occurring. If a subscriber is sued, his or her identity may be subpoenaed, as in cases of
defamation, and with similarly little judicial scrutiny. 71 Major search engines such as
Google comply with hundreds of removal requests a month, even though it is not
even clear that provision of a hyperlink would incur copyright liability. 72
When Canada began to consider amending its copyright laws, it appeared to be following in the footsteps of the United States. In 2004, the House of Commons Standing
Committee on Canadian Heritage retabled its Interim Report on Copyright Reform,
which proposed a ‘‘notice and takedown’’ policy similar to that of the DMCA, under
which Canadian service providers would be compelled to remove content immediately
upon receiving notice of an alleged infringement from a professed copyright holder.
The report came under fire from the Canadian Internet Policy and Public Interest
Clinic (CIPPIC), Digital Copyright Canada, and the Public Interest Advocacy Centre
(PIAC); numerous petitions and critiques followed, calling for balance between the
rights of content creators and fair public use. 73 The ‘‘Canadian DMCA’’ has since been
proposed, in the form of Bill C-61 in 2008, which appears to be even more restrictive
that the U.S. DMCA. 74 The consensus on this bill is that it is unlikely to pass, although
it continues to be a priority of the Conservative government. 75
378
United States and Canada Overview