PDF of the legal ruling here: http://www.p2pnet.net/cria/canada.pdf
Discussion about original ruling:
File sharing in Canada
p2pnet.net News:- There hasn't been much, lately, vis-à-vis p2p in Canada.
You'll recall that Big Music suffered a serious and very embarrassing
defeat when it instructed its CRIA (Canadian Recording Industry
Association) to try to force ISPs to turn over the identities of 29
customers.
It's so used to getting its way in the US it assumed it would have the
same success across the border.
But it didn't work. Justice Konrad von Finckenstein ruled that putting
music into a computer directory that might be shared remotely by
someone else doesn't constitute copyright infringement under Canadian
law.
The Big Five record labels, none of whom have a base in Canada,
followed that up by getting Canada's prime minister, Paul Martin, to
state publicly that Big Music is a part of Canada's sovereignty. And
Canadian federal heritage minister Helene Scherrer says she, too, will
get behind Big Music.
The Canadians federal election is scheduled for June 28 and with an
unresolved scandal involving $100 million hanging over their heads,
there's a better than even chance that Martin & Co won't survive and
even if they do, they probably won't have a majority.
Of course, there's no guarantee that a new government won't go the Martin way.
Be that as it may, interest in Canada and things Canadian will be
re-kindled and there's a really good article in Slyck on The Canadian
Situation. It's ironic that such a good summary, by Michael Ingram,
should come from Britain and be published on a US site.
But the Net has no boundaries and with that in mind, Kuro5shin has an
equally good synopsis of the election, election issues and Canadian
political systems, aimed mostly at non-Canadians.
Now read on >>>>>>>>>>>>>>>>>>
The CRIAA is silent
By Michael Ingram - Slyck
In a global fight between copyright holders and users, the battles in
Canada have stood out from the crowd. As a result of various opinions
and court decisions, Canadians are one group out of very few who refer
to downloading copyrighted music for free as legal.
THE PAST
Many observers of copyright law argue that downloading music from P2P
networks has always been legal. The Canadian File-Sharing Legal
Information Network, for example, believe that it is permitted under
s.80 (1) of the Copyright Act, which provides that anyone can copy
music for private use of that person making the copy. Further to this,
the law does not specify that the original copy needs to be acquired
legally.
File sharers need to be made aware that this section is specific to
sound recordings. Unauthorized reproductions of other copyright works,
such as films and software, remain unlawful. This has yet to be tested
in court.
Mid-December last year, the Copyright Board of Canada agreed with the
viewpoint that downloading is legal in Canada. As part of this
announcement, the Board also introduced a government fee on a variety
of music storage medium and recording equipment. This ranges from the
latest iPod to cassette tapes. The money raised is then distributed to
copyright holders.
Such a novel step by the copyright regulators was bound to cause
controversy. Consumer-electronic sellers complained that sales would
fall, copyright owners feared that the piracy floodgates would be
opened, and those backing up data criticized the decision for making
them pay the music industry.
The downloader?s cause had received some heavy weight backing by the
Copyright Board?s opinion, but ultimately it needed to be tested in
court. The Canadian Recording Industry Association (CRIA) was the
first to highlight that the Copyright Board had only given their
opinion, and believed that downloading would be found unlawful by the
courts.
Few thought that these legalities of downloading would be tested any
time soon. To encourage leeching from P2P networks, the industry had
always targeted uploaders.
Consequently, although pleased that downloading appeared lawful, the
average file sharer remained more interested in the legal implications
of uploading.
THE CASE
Then, on the 31st March 2004, file sharers received a preliminary
answer to their question. The industry received their worst possible
news. Excitement rippled through the file sharing community.
On that day, Judge Konrad von Finckenstein, the judge at first
instance, rejected the CRIA?s motion for the court to authorize the
identification of 29 alleged file swappers. Rumors of both uploading
and downloading being legal have since been rife.
As part of his statement, Judge Finckenstein agreed with the Canadian
Copyright Board that downloading is legal under Section 80 (1) of the
copyright act. His clarification of existing belief on downloading was
only weakly connected to the case, but it helps to set a precedent.
Judge Finckenstein primarily rejected the CRIA motion due to lack of
evidence. It is good news that the court questioned the integrity of
the evidence, but this reduces the likelihood of uploading being
legal.
Even with future precautions to plug gaps in the evidence, the CRIA
will find themselves at a couple of sticking points. The first of
these is evidential, the second is legal.
Evidential Issues
It will be very complicated, if not impossible, for the CRIA to prove
that there is a connection between the IP address recorded and the
alleged file sharer. Firstly, the court found that an IP address can
only be linked to an account holder. The account holder may not be the
computer operator, but instead a Local Area Network administrator, or
an institution. This is additionally complicated by dynamic IP
addresses and poor records kept by ISPs.
Although this provides file sharers with an extra layer of protection,
it does not mean that uploading is lawful.
Legal Issues
This brings us onto the part file sharers and observers are most
interested in ? the judge?s ruling on the legality of sharing files.
As part of demonstrating infringement of the Copyright Act, the
plaintiff must prove to the court that the defendant authorized
reproduction of the sound recordings and distributed the content.
Canada has yet to implement the World Intellectual Property
Organization Performances and Phonogram Treaty (WPPT) or the Copyright
Treaty (WCT). These treaties were concluded in 1996 and became the
basis of the controversial Digital Millennium Copyright Act (DMCA,
1998) in the USA. Canada signed up to the principles of the treaties
in 1997, but has yet to ratify them. Had Canada implemented the WPPT,
the CRIA would not have needed to proven that authorization and
distribution had occurred.
Without implementation of the treaties, Judge Finckenstein turned to
case law for guidance, and decided to follow a Supreme Court
precedent. In a case involving a photocopier in a library, the Supreme
Court judge ruled that setting up the facilities that allow copying
does not amount to authorized infringement. Likewise with P2P
software, the preconditions for copyright infringement are in place,
but authorization is absent.
Judge Finckenstein also concluded that the use of P2P software does
not amount to distribution. He argued, ?Before it constitutes
distribution, there must be a positive act by the owner of the shared
directory, such as sending out the copies or advertising that they are
available for copying. No such evidence was presented by the
plaintiffs in this case.?
Finding an omission of authorization and distribution, the judge had
no choice but to deny the CRIA?s motion. This is an unmistakable
signal from the courts that sharing copyright works on the P2P
networks in question is not unlawful. The courts may distinguish
networks which use different technology, such as BitTorrent.
THE FUTURE
This is not the end of the story. The flexibility of the law means
that Canadians should enjoy the freedom whilst it lasts.
The CRIA have made an appeal against the ruling, which will be heard
before a three-judge panel at the Federal Court of Appeal. The grounds
for appeal are currently unclear, although it is likely to question
the relevance of the Supreme Court decision in this case to establish
authorization. The CRIA may also question the judge?s decision that
there has been no act to constitute distribution.
By the end of this year, the current arguments are likely to be academic.
Reforming the Copyright Act
Canadian copyright law is under review for reform by Copyright Policy
Branch of Canadian Heritage. The consultation paper produced by
Canadian Heritage praises the current Copyright Act as a ?flexible
instrument that is capable of responding to many of the challenges of
the digitally networked environment.?
However, the Copyright Act receives much disapproval. Acknowledging
that copyright has become an international issue, the Copyright Act is
criticized for being out of step with other copyright law. The EU and
the USA are named as examples where the WPPT and WCT, spoken about
above, have been implemented in order to achieve unison.
If Canada follows suit and implements and ratifies these treaties to
achieve harmony, there will be far reaching affects, mostly beyond the
scope of this article.
The most important section of the Canadian Heritage consultation paper
is section 4.1, titled ?Making Available.? This section outlines the
board?s support for artists to have a ?making available right.? This
phrase originally emerged during the WPPT and WCT negotiations. It
refers to artist having the exclusive right of when and where to make
works available, if at all.
The main potential change to the Copyright Act is discussed in
subsection 4.1.1. This section discusses the making available right in
context to the music industry. If this right is given to the recording
industry, the authorization and distribution tests, which the CRIA
failed to meet, will become obsolete.
By sharing copyright works, file sharers will be taking away the
industry?s right to chose the distribution of their copyright works,
and hence in breach of the Copyright Act.
The consultation paper does not supply any counter arguments to giving
a making available right. As such, implementation as part of any
reform of the Copyright Act is likely.
The bad news for Canadian file sharers is that this reform is very
probable. Concerned citizens who have voiced their opinion about the
potential changes in the Copyright Act have been told ?that the
Government of Canada is committed to modernizing the Copyright Act,?
in reply.
BOTTOM LINE
Downloading music in Canada is currently lawful. Uploading music is at
present not unlawful, but this is subject to an appeal.
Whatever is decided in the awaited CRIA appeal will only be temporary,
as there are forthcoming changes to the Copyright Act. These changes
will likely include some ratification with international treaties,
including giving the right to the industry for how and where music
content is distributed.
If implemented, the current debate of sharing files being unlawful
will become obsolete, leaving the courts to debate only evidential
issues.
And this:
Keep on downloading! Cdn file sharers told
Pfohl
p2pnet.net News:- In the second blow against Big Music in two days,
Canada's Justice Konrad von Finckenstein has ruled that putting music
into a computer directory that might be shared remotely by someone
else doesn't constitute copyright infringement under Canadian law.
The milestone ruling comes as Big Five record label - Universal Music,
Warner Music, EMI, Sony Music and Bertelsmann's BMG - continue to
accelerate their attempts to gain control of the way music is
distributed online.
As part of the effort, they'd instructed their CRIA (Canadian
Recording Industry Association) to get a court order to force five
Canadian ISPs to hand over the names of 29 people the labels claim
were "each illegally distributing hundreds if not thousands of music
copyright files to millions of strangers".
On March 15, "We are confident that the court will require internet
service providers to disclose the identities of alleged digital music
infringers," said CRIA general counsel Richard Pfohl. "The approach we
have taken protects Canadians' privacy rights while ensuring that
people can't steal music and remain anonymous."
However, von Finckenstein decided, "No evidence was presented that the
alleged infringers either distributed or authorised the reproduction
of sound recordings. They merely placed personal copies into their
shared directories which were accessible by other computer user(s) via
a P2P service."
He also said the labels had not:
* "Made out a prima facie case (their affidavit evidence is
deficient, they have not: made a causal link between P2P pseudonyms
and IP addresses and they have not made out a prima facie case of
infringement),
* "Established that the ISPs are the only practical source for the
identity of the P2P pseudonyms; and
* "Established that the public interest for disclosure outweighs
the privacy concerns in light of the age of the data."
In another announcement that spelled bad news for the music industry,
"Downloads have an effect on sales which is statistically
indistinguishable from zero," said Felix Oberholzer (Harvard Business
School) and Koleman Strumpf (UNC Chapel Hill) in their new empirical
analysis of the effect file sharing has on record sales.
Buy our music - or else!
In the meanwhile, the labels yesterday enacted another phase of their
hard-core marketing plan to compel music lovers around the world to
buy 'product'.
Their IFPI and other enforcement units in Denmark, Germany, Italy
launched "the first wave of international lawsuits charging
individuals with illegally file-sharing copyrighted music". Shortly
afterwards, their French unit followed suit.
A total of 247 "alleged illegal file-sharers face legal action in a
move that steps up the industry's international campaign against
online copyright theft," says the IFPI in a puff release, also
threatening that, "Further waves of lawsuits against major offenders
will be launched in different countries in the coming months.
Big Music believes that to survive in the digital age, it has to
replace p2p networks with corporate online music stores it backs and
supplies.
The impact of von Finckenstein's decision is likely to be significant.
Canadians are avid Websters and in 2002, 51% of all Canadian
households had at least one member who regularly used the Internet
from home, up from 49% in 2001.
And it'll be interesting to see what Quebec's Videotron will do.
With more than 430,000 Internet customers, it supplies high-speed
cable Internet access throughout Quebec by cable and dial-up modem and
is one of the five ISPs in the CRIA's sights.
The other four are Telus, Shaw, Bell Sympatico and Rogers
Communications, all of which refused to hand their clients' names over
to the CRIA.
Not Videotron, though. It's owned by Quebecor Media which is in turn a
Archambault Group subsidiary, Archambault being the largest
Quebec-based distributor and retailer of recorded music.
Last November it came out with a radio, tv and newspaper "awareness"
project "similar to the RIAA campaign" against p2p file sharing.
But Shaw Communications president Peter Bissonnette was delighted.
"We are very, very pleased and I'm sure our customers are as well,''
he's quoted as saying in a CTV.ca story here. "We have obligations to
protect the privacy of our customers. We've always taken that
approach."
However, the chances of Big Music giving up are, of course, zero.
CTV's David Akin said the decision is different from similar rulings
in the US where the music industry has sued 1,977 people since last
fall. It has reached out-of-court settlements in around 400 cases.
"Some lawyers were saying the music industry might have hurt its case
through legal sloppiness," Akin says in the CTV report.
"They really didn't have their t's crossed and their i's dotted. They
would likely go back and assemble the evidence the judge said was
missing. The judge said clearly there are some tests that have to be
met, and the record industry failed to meet those tests."
Once they do that, the industry can resubmit its case, says CTV, adding.
"Until then, Canadian online music traders are free to keep swapping
songs, Akin said."
And don't forget - Canada is the country where Big Tobacco learned you
can't get away with it forever. |
