Canadian Court sides with music swappers

[Robert J]

By TERRY WEBER and JACK KAPICA

Globe and Mail Update

The Federal Court of Canada ruled Wednesday that Internet Service Providers can't be forced to turn over identities of suspected music swappers, throwing a roadblock in the path of the recording industry's efforts to crack down on the practice.

In a 31-page decision Judge Konrad von Finckenstein said the Canadian Recording Industry Association hasn't made its case for ordering ISPs to turn over the names of 29 suspected so-called music uploaders, people who offer music for others to download.

The industry had wanted the names so that it could launch lawsuits against individuals it claims are high-volume Internet music swappers.

As part of his ruling, the judge found that simply downloading a song or having a file available on peer-to-peer software such as Kazaa doesn't constitute copyright infringement.

"The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution," Judge von Finckenstein said.

"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."

Last month, the Canadian Recording Industry Association asked the court to order five of Canada's largest communications companies to identify 29 uploaders who they allege posted hundreds of songs illegally.

The industry charges that song swapping in cyberspace has had a dramatic impact on music sales in this country, costing as much as $425-million in lost revenue over the past five years.

But, Judge von Finckenstein denied the request noting that, while third parties have been compelled to disclose identifying documents in the past, the plaintiffs haven't shown a causal link between P2P pseudonyms and IP addresses nor have they made out a broader case of infringement.

As well, he said, they haven't established that the ISPs are the only practical source of the identity of the P2P pseudonyms, nor have they shown that the public interest for disclosure outweighs privacy concerns.

The recording industry swore to continue its fight against file sharing, and is considering an appeal of the decision.

CRIA president Brian Robertson stood fast in his interpretation of the law, insisting that despite the judgment, sharing music files is still against the law.

"We remain committed to our plans to enforce the law against unlawful 'file sharing,' which is devastating the entire music community," he said in a statement after the ruling."

"We continue to believe it's unlawful under Canadian law to share files on peer-to-peer networks," CRIA general counsel Richard Pfohl said.

"I expect we will be appealing on the basis of technology," he continued. "We don't believe that when someone puts thousands of files into a shared folder to be traded on the Internet, it's an act of private copying."

"We presented more initial evidence than has ever been put forward in a request for disclosure of user identities from ISPs — which Canadian courts have granted on numerous occasions," he said.

Judge von Finckenstein is regarded as a senior judge with an extensive understanding of technology and is an expert in international commerce. Most recently he was the federal competition commissioner.

In the United States, legal action has been taken by the music industry against song swappers.

But in decision in December, a U.S. Appeals Court ruled that service provider Verizon didn't have to turn over the names of individuals, finding that the service provider was only responsible for content kept on its own server.

court decision

[patricia]

It seems to me that the calculations that the record industry has made, with regard to their loss of revenue, assumes that if the public was unable to share files, that they would buy the CD's.

That's not necessarily true. In fact, many of the artists whose work has been downloaded by listeners, would never have been heard and have their CD's subsequently bought, had the consumer not heard what amounts to samples of their work.

The comparison made by the ruling here compares downloading songs from the internet with a library having a copying machine on which library users make copies of material which is copyrighted for their own use.

Technically, that is against the law also, but they don't expect the public to buy their own copies of whole, expensive, reference books, in order to have access to sections of those books.

No money is being exchanged when people share music files, so the large record companies are experiencing an estimated loss on projection figures which are certainly open to interpretation.

Can those of you who previously downloaded music say that you would have bought the CD had you not been able to download selected tracks??

Edited April 2, 2004 by patricia