CSP Central survey: Most copyright infringement notices are invalid

Australian ISPs receive vast numbers of copyright infringement notices headed ‘Commonwealth of Australia’.  That is the official heading of the notices contained in Australia’s Copyright Regulations as part of the ‘safe harbour’ rules.  A document with that heading is clearly intended to be one of the official notices.

CSP Central recently analysed notices received by some Australian ISPs and found that the majority were legally invalid.  Copyright owners and representatives are simply getting it wrong.

What the notices are about

An ISP is protected by the safe harbour rules if it satisfies certain conditions.

One of the conditions is that it must follow certain take down procedures if it receives a notice in official form.  There are actually several procedures, and each one is triggered by its own kind of notice.

• Notice A applies to one kind of case and triggers Procedure A.
• Notice B applies to another kind of case and triggers Procedure B.
• And so on …

So remember, each notice triggers a different, specific procedure.

There’s no ‘peer to peer’ notice or procedure

It’s important to understand that none of the official notices or procedures applies to P2P.  There are notices for cases where the ISP is actually hosting copyright material on its own servers, and notices where it is caching copyright material, but none for P2P.

Remember that, too. P2P has nothing to do with any of these notices.

To be valid, a notice must be in the ‘prescribed form’

That means the official form set out in the Copyright Regulations.  It doesn’t have to be 100% exactly identical.  It just has to be ‘in accordance with, or substantially in accordance with, the form prescribed’.

Many of the notices we have seen:

• are not in the form prescribed, and
• are not substantially in accordance with it.

That’s despite the fact that their heading ‘Commonwealth of Australia’ clearly shows that they are intended to be official notices.

What do they get wrong ?

We saw three common problems, each of which (in our opinion) invalidates a notice.

Mixed notices

Many of the notices combine two of the official forms.  Remember we said that:

• Notice A applies to one kind of case and triggers Procedure A.
• Notice B applies to another kind of case and triggers Procedure B.

Well, many notices are in the form of ‘Notice A + B’.  The problem is that there is no ‘Procedure A + B’ or ‘Procedure ‘A or B’ or ‘Procedure A and / or B’.  The combined form of notice does not clearly and unambiguously trigger one official procedure.

We consider that is a substantial variation from the official form.

Imagine we instruct you. ‘If we leave out mince meat, cook hamburgers for dinner.  If we leave out chicken cook a casserole.’   And you come home to find we have left out mince and chicken.

Even if you say, ‘Well, I’ll work it out.  I’ll choose between them, since I think the instructions entitle me to,’  or ‘I’ll play it safe and cook both’  my instructions are substantially different from what you had been told to expect – mince or chicken – and you have had to invent a solution.

The safe harbour rules do not call on ISPs to work out what to do in response to a notice.  They simply say:

• Notice A applies to one kind of case and triggers Procedure A.
• Notice B applies to another kind of case and triggers Procedure B.
• And so on …

That’s why we consider these notices are substantially different from the official ones.

Other notices include P2P allegations

Remember there is no notice applicable to P2P allegations.  But that doesn’t stop many rights holders including such allegations in their notices.

In fact, many we saw are in the form of ‘Notice A + B’ and don’t in fact allege type A or type B infringements … they solely contain P2P allegations.

P2P has no place in the official notices.  By including P2P allegations, the sender is using a form that is substantially different from the official ones.

Other notices ask for ‘non-official’ responses

Remember that:

• Notice A applies to one kind of case and triggers Procedure A.
• Notice B applies to another kind of case and triggers Procedure B.
• And so on …

The procedures are laid down in great detail by the Copyright Regulations.  You get the notice, you check the procedure, you follow the procedure, you’re in the safe harbour.

We saw many notices that had been changed to request that the ISP follow a quite different procedure.  They say (in effect) ‘This is an official notice to trigger Procedure A.  But we actually ask you to follow another procedure that we like better as follows …’

We consider that this alteration to the official form of notice is substantial, and invalidates the notice.

We sampled a tiny proportion

Millions of supposedly ‘official’ notices are issued every month.  Our survey was a tiny proportion.  But over 80% of notices we saw were invalid in our opinion.

They simply do not trigger the safe harbour procedures or require the ISP to initiate any safe harbour response.