OT - File sharing is legal in Canada

[tesco samoa]

From the polotik

I thought fellow Politech Subscribers would be interested in today's
victory against the Canadian Recording Industry Association (CRIA - The
RIAA's Canadian cousin). A federal court decision denied a motion by
CRIA to disclose the identities ISP Subscribers who allegedly shared
copyrighted files on Kazaa. Most importantly, the court also held that
sharing files using a P2P service is apparently legal in Canada - one
reason being that having facilities "that allow copying does not amount
to authorizing infringement".

According to news reports, CRIA plans to appeal. See
http://www.globeandmail.com/servlet/...tory/Business/

Following is a brief summary of this very interesting decision. The
full 30 page decision is available at
http://www.fct-cf.gc.ca/bulletins/wh.../T-292-04.pdf. The case name
is BMG Canada Inc.v. Jane Doe (2004 FC 488).

[It should be noted that ISP Subscribers have an expectation of privacy
based on Canada's privacy act (PIPEDA). Identities can only be
disclosed without consent by a court order - in contrast to the simple
subpoena signed by a court clerk that is sufficient in the U.S.]

*The court held that in order to disclose the identity of the
Subscribers the applicant must (amongst other criteria) establish a
prima facie case against the Subscribers and show that the public
interest favour disclosure over the Subscriber's privacy concerns.

**As to the prima facie case against the Subscribers:

(1) The court found much fault with the activities of Mediasentry, the
anti-piracy company hired by CRIA to gather evidence on file-sharers:

(a) The court concluded that the sworn testimony about the file sharing
activities of the defendants was hearsay. This is because it was the
president of the company who testified about the file-sharing activities
of the defendants, not the employees who actually gathered the evidence.
This was insufficient in the court's view as the president did not have
personal knowledge of the file-sharing activities.

(b)As well, the court found that the fact that the "infringing files"
that had been copied from the defendants had not been listened to by
MediaSentry employees, so there was no way of actually ascertaining
whether they were decoys or infringing material.

(c)The court found that there was no evidence explaining the link
between the pseudonyms on Kazaa and the IP addresses of the defendants.

(2) The court found no evidence of copyright infringement through the
downloading or filesharing of music files because:

(a) The December 2003 decision by the Copyright Board held that
downloading a song is legal.

(b) There was no evidence that the defendants actually distributed music
files. Rather they "merely placed personal copies into their shared
directories which were accessible to other computer user[s] via P2P" [at
26]. Distributing files would necessitate an additional step by the
owner of the directory (such as emailing copies of the file to someone).

(c) Having facilities "that allow copying does not amount to authorizing
infringement" according to recent Canadian case law (CCH Canada v. Law
Society of Canada, 2004 SCC 13 - held that a library that allows copying
does not mean it authorizes infringement).

(d) The court acknowleges that the exclusive right "to make available"
is part of the WIPO treaty, but because that treaty has not yet been
implemented in Canada, it is not the law.

**As to whether the public interests favour disclosure over the
Subscriber's privacy concerns:

(1) The court notes that the protection of privacy "is of utmost
importance to Canadian Society". This has been recognized through the
enactment of Canada's privacy law which protects an individual's
personal information.

(2) The reliability of the information to be disclosed is paramount.
The court has concerns about the reliability of any disclosure of
Subscriber identities because of the reasons set out above and because
the time lag between when the evidence was gathered (fall 2003) and
filed (feb 2004) meant that data from ISPs was less reliable.

-

The Canadian Internet Policy and Public Interest Clinic (CIPPIC -
www.cippic.ca) which is based at the University of Ottawa Law School was
granted intervenor status in this case and did a great job of arguing on
behalf of the defendants. CIPPIC's excellent brief is available here
(http://www.cippic.ca/uploads/images/...final_12pt.pdf).
Further information about the case is available at CanFLI
(www.canfli.org) a law student initiative that provides information for
Canadian file-sharers.


Milana

---------------------------------------
Milana Homsi
University of Ottawa Faculty of Law, 3L
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