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[26] For example, Parliament sought to strike a balance between
the interests of copyright owners and of Internet subscribers,
respectively, by preferring a notice and notice regime over a
“notice and take down” regime (see House of Commons Debates,
at p. 2109, per Hon. James Moore). The notice and take down
regime prescribed in the United States by the Digital Millennium
Copyright Act (1998), 17 U.S.C. § 512, requires an online “service
provider”, upon receiving notice of a claimed copyright
infringement, to respond expeditiously by removing or blocking
access to the material that is the subject of the claimed
infringement. While obviously a preferable scheme from the
standpoint of copyright owners, its “take down” requirement has
been criticized as undermining the presumption of innocence and
unnecessarily limiting free expression… In contrast, the notice and
notice regime allows for notices of claimed infringement to be
forwarded (thereby advancing the rights of copyright holders),
while accounting for the interests of Internet subscribers by
maintaining the presumption of innocence and allowing them to
monitor their own behaviour (and, more specifically, to avoid
continued copyright infringement) [citations omitted].
[273] In this case, CIPPIC asserts that the Plaintiffs are seeking, by virtue of the Order, to
impose notice and takedown on the Third Party Respondents, because they will be obliged to
block access to content immediately upon receiving notice of infringement, and this will be done
without ongoing judicial oversight. This stands in contrast to the static site blocking ordered by
GoldTV FC, which only mandated removal of access following a judicial determination that
there is a strong factual and legal basis to conclude that a specific, listed target website is
infringing copyright.
[274] While CIPPIC does not claim that this should automatically bar the Plaintiffs from the
relief they seek, it does assert that the minimal judicial scrutiny involved in the Order here is a
relevant consideration in assessing the balance of convenience factors, and if an Order is to be
granted, in fixing its terms.