Last week, I reported on a major Canadian lawsuit filed by 26 record labels against isoHunt. The legal action, filed in May 2010 without any press releases or public disclosure by CRIA, seeks millions in damages and an order shutting down the controversial website. At the same time as the labels filed the statement of claim, the four major labels responded to isoHunt’s effort to obtain a declaration that it operating lawfully in Canada. Their Statement of Defence ( posted here – excuse the poor scan) also makes the case that isoHunt currently violates Canadian copyright law.

Notwithstanding a clear-cut case of how Canadian law can be used today to target infringing activity (supported by some of the strongest statutory damages found anywhere in the world), Liberal MP Dan McTeague rose on a point of order during last Thursday’s Bill C-32 hearing to make the following statement:





Chair, I realized with the previous witnesses that there has been some information that has been given, that’s been put forward – it’s been put in several papers by Prof. Michael Geist – that suggests somehow that the recording industry itself went after, legally, here in Canada, and I think one of our questioners here had the same view and opinion.

I want it clear for the record that that is clearly misleading and false. It is in fact isoHunt that went to court. CRIA and other organizations, from my understanding, had to respond to that call as a result of a court action undertaken by isoHunt. Call it a preemptive move, but it clearly does not underscore or in fact support the view that somehow the existing legislation provides sufficient support for the pirating that’s going on there.

I want that on the record because Mr. Geist has taken it upon himself to put my name attached to that position. I just want it clear for the record that isoHunt itself initiated this legal action, not the other way around as have been presented rather inaccurately by Mr. Geist.

Not only does McTeague wrongly call my column misleading and false, he followed up the comments with a letter to the editor in the Toronto Star in which he cherry picks a few statements to again argue that the timing of the lawsuits is somehow more relevant than the substance.

The McTeague comments – along with his positions at the C-32 committee – raise important questions about how the Liberal Opposition Critic for Consumer and Consular Affairs has emerged as the most anti-consumer MP on the committee from any party (a point noted in a follow-up letter to the editor). Even more troubling is evidence to suggest that McTeague’s comments are being actively fed by the Canadian Recording Industry Association, with McTeague using his platform on the committee to effectively become an unofficial spokesperson.

On the substance of McTeague’s response, it is worth emphasizing that the Canadian lawsuit against isoHunt is a stand alone suit that relies exclusively on current Canadian law to argue for damages and a judicially ordered shutdown of the site. While isoHunt may have filed the first suit, the response from the industry has been unequivocal in all court documents as it firmly argues that the site is not compliant with current Canadian law.

Rather than focusing on the timing of the suits, one would think that McTeague would be more interested in the substance. Yet the C-32 hearings to date suggest that he is not particularly interested in responses that veer from the CRIA script. For example, when I appeared before the committee on December 1st, he asked me about the enabler provision designed to target sites like isoHunt. In response to my comment that there are already laws in Canada that could be used to address the issue, McTeague stated:

I get that, Mr. Geist. It’s okay that people should take these matters to court and go through the process of standing up for their rights, but it would appear that the very existence of an isoHunt in Canada is problematic and is very much the result of what appears to be a legislative holiday for companies and other BitTorrent sites.

It is this inaccurate reference to a “legislative holiday” – which comes in the same sentence as the acknowledgement that parties can stand up for their rights in court – that was included in my column and which presumably led to his point of order.

In other discussions, he has offered up confusing comments about the impact of statutory damages reform on non-commercial infringement. In discussion with the Retail Council of Canada he asked:

You have members obviously who are in the retail industry who may be affected by this, so how are they going to stop the isoHunts and the BitTorrents of this world who are stealing information with very little legal impact, let alone a remedy as far as penalties are concerned?

RCC counsel Howard Knopf, responded:

Mr. McTeague, as Mr. Oakey said, the RCC in no way favours piracy in any way, shape, or form. I think that $5,000 is a lot of money for most Canadian households; it’s about a year’s tuition at university, as I understand it these days. It’s enough to make people notice. Some people think it should be eliminated. Only Canada and the United States, among major countries, even have statutory damage regimes, so we do have it. We’re not in any sense proposing its abolition, but $5,000 is a lot of money for most families.

McTeague then inaccurately responded by arguing that this activity is legal in Canada:

They may be making tens of thousands a day doing what they’re doing. It’s legal in Canada, illegal in other….

McTeague got the statutory damages issue wrong again in discussion with the Canadian Media Production Association when he stated:

We’ve had a number of examples of the $5,000 fine, but we have companies like The Pirate Bay that might be able to take a hit of $5,000 while they’re making tens of thousands of dollars.

This is simply wrong – the $5,000 non-commercial cap would clearly not apply to sites like the Pirate Bay or isoHunt.

Were this nothing more than an MP getting the law wrong, it would not be particularly noteworthy. More important is that McTeague’s recent comments appear to be coming directly from CRIA. The Toronto Star letter to the editor includes quotes from two old posts on my blog (here and here). The visitor log for my site reveals that only one party accessed both posts in the period between February 14th (when the column first appeared) and February 21st (when the letter to the editor appeared). That party was CRIA, suggesting that the McTeague letter may largely be a cut and paste of materials supplied by CRIA lobbyists.

This is hardly the first time the link between McTeague and CRIA has been made. In 2006, he wrote an op-ed in the Hill Times that observers noted could have been written by CRIA as it hauled out every claim in the book – no matter how disputed – to make the case that “our businesses, the police, and prosecutors are left saddled with an ineffectual legal regime that is the object of world condemnation.”

In 2007, he formed the IP and Anti-Counterfeiting Caucus, encouraging MPs to join by noting:

From the findings of these reports and from the views held by most independent observers; industry representatives; IP experts; and law enforcement officers, if Canada does not take action to protect IP and combat the growing increase in counterfeiting and piracy throughout all sectors of our economy, then we will face very serious consequences. Canada’s domestic economy will suffer; jobs will be lost; our ability to attract foreign investment will be impacted upon; our innovative capacity will be severely undermined; public safety will be compromised; and Canada’s image in the global community will be tarnished.

The first order of business for the caucus was a proposed trip to the Washington and later an invitation for U.S. embassy officials to appear before the caucus (I appeared before the caucus months later).

In 2008, he appeared on a copyright panel that led to the following report from FYI Music, in which the reporter comments that “McTeague essentially read out a list of record industry talking points”:

The lobby for US-style copyrights in Canada, which CRIA appears to endorse, has gone into overdrive, recruiting Liberal heavyweight MP Dan McTeague to add political weight to an explosive topic that has deeply divided collectives representing the Arts and Industry.



At a copyright panel in Toronto last Wednesday, McTeague essentially read out a list of record industry talking points about Canada’s alleged status as a â€œpirate nationâ€, characterizing infringement as theft and questioning the legality of what many believed to be entrenched user rights, saying that Canada’s international reputation had been tarnished by its soft copyright laws.

McTeague is obviously entitled to his views and there is no one that disputes that Canadian law should be able to deal effectively with counterfeiting and infringement. Yet his eagerness to parrot CRIA claims while getting the law wrong is troubling for those that might expect a consumer affairs critic to actually take an interest in consumer concerns associated with copyright reform.