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Wednesday, March 31, 2004
Canadian music file swappers win
Uploading/downloading activity not illegal, court rules
By ANGELA PACIENZA -- Canadian Press
TORONTO -- File swappers in Canada can rest easy for the moment after a Federal Court ruling Wednesday said uploading music files into shared folders on peer-to-peer networks like Kazaa is legal.
Justice Konrad von Finckenstein's decision throws a wrench into plans by the music industry to sue people who share songs over the Internet. Unlike similar cases in the United States, he said the Canadian Recording Industry Association (CRIA) didn't prove there was copyright infringement by 29 so-called music uploaders.
CRIA had sought a court order to force Internet service providers to identify alleged high-volume music traders identified only as John and Jane Does. Without the names, CRIA can't begin filing lawsuits.
The ruling follows a recent decision by the Copyright Board of Canada that downloading music in this country is legal.
Von Finckenstein said that downloading a song or making files available in the shared directories does not constitute copyright infringement under the current Canadian law.
"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings," he wrote in his 28-page ruling. "They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service."
He compared the action to a photocopy machine in a library. "I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service," he said.
CRIA said it would not be derailed in its fight against music piracy and will appeal the ruling.
"We feel that we have firm grounds for appeal," CRIA president Brian Robertson said in an interview.
"You cannot have widespread copyright infringement without any penalties or deterrents. We believe the case that we filed was a strong case proving copyright infringement. It's something we will continue to pursue."
He added CRIA will continue to seek the identities of the 29 John and Jane Does it has collected evidence against.
The verdict sent shock waves through the industry and surprised some copyright analysts.
"It raises questions of the viability of suing individual users in Canada under current Canadian copyright law," said Michael Geist, a professor at the University of Ottawa specializing in Internet and e-commerce law and technology counsel with the law firm Osler, Hoskin and Harcourt.
"It is a remarkable decision. He's clearly ruled that (uploading/downloading) activity isn't unlawful."
Calling the decision "stunning," Geist anticipates it will push the industry to increase lobbying efforts for legislative change to copyright laws.
The recording industry is pushing for Canada to sign the World Intellectual Property Organization Performances and Phonograms Treaty which would automatically change some copyright law including the definition of distribution like that done via Kazaa, WinMX, eMule and iMesh.
Internet forums were abuzz with the news, the majority in favour of the judge's decision.
"I think I know what country I'll go to college in now," wrote "danhm" on the slashdot.org forum. "Nice to see privacy winning one for a change. Now if we can get the U.S. Supreme court to rule the same way. After all, they've been using foreign court rulings more and more recently," added "Sharp'r."
Last month, the industry association took five Internet service providers to Federal Court, trying to force the companies to hand over the names and addresses of 29 people who allegedly shared hundreds of songs with others over the Internet last November and December.
The alleged infringers are currently identifiable only through a numeric Internet protocol address and user handles like Jordana(at)KaZaA and Geekboy(at)kazaa.
Bell Canada, Shaw Communications, Telus Communications and Rogers Cable all fought CRIA's request. Videotron agreed to comply, saying owner Quebecor is also concerned about piracy in other parts of its business, which includes newspapers, television, Internet services and CDs.
Peter Bissonnette, president of Shaw Communications, was delighted with the ruling.
"We are very, very pleased and I'm sure our customers are as well," he said from his Calgary office.
Shaw had argued privacy legislation protects the identities of its clients.
"We have obligations to protect the privacy of our customers. We've always taken that approach," said Bissonnette.
Shaw and the other ISPs also argued the information they'd be forced to collect wouldn't be 100 per cent accurate because of the dynamic nature of IP addresses.
Wednesday's decision combined with a recent Harvard Business School study on CD sales strikes a blow to a worldwide movement to curb music swapping, says Howard Knopf, a lawyer who represented the Canadian Internet Policy and Public Interest Clinic in the case.
The study, released Tuesday, found that downloading had no impact on sales of CDs in recent years.
"The recording industry can't prove that they have a problem," said Knopf. "This P2P may actually be saving the record industry from worse problems."
Earlier this week, the London-based International Federation of the Phonographic Industry held a news conference to outline its international campaign against music piracy, pointing to lawsuits launched in Germany, Denmark, Italy and Canada.
The group claims worldwide sales of recorded music fell seven per cent in 2002, and added that it expected figures for 2003 to show sales dipping by at least the same amount.
In the United States, the recording industry has sued 1,977 people since launching its assault against illegal file-sharers last fall. It has reached out-of-court settlements in around 400 cases.
The Federal Court has ruled against the Canadian recording industry's bid to force Internet service providers to disclose the identities of people who make music available online. Here's some reaction from various North American-based web forums.
* "Good for Canada! I don't really think it's an ISP's business to get involved in civil matters between outsiders and their clients" -- username: Shakira.
* "I think I know what country I'll go to college in now" -- username: danhm.
* "Nice to see privacy winning one for a change. Now if we can get the U.S. Supreme court to rule the same way. After all, they've been using foreign court rulings more and more recently" -- username: Sharp'r.
* "Wow! I can get married and trade music files?? WOOOT! I'm moving to Canada!" -- username: gay married music pirates.
* "I was hoping to get sued in Canada instead of the States. After the exchange rate, I was hoping to pay about $0.78 per song" -- username: neiffer.
* "God Bless Canada!" -- username: Mark.
* "I'm truly proud to be Canadian today. Oh, except for that tax on (blank CDs, DVDs, VHS and cassette tapes) and Celine Dion. Yeah, sorry about that" -- username: ferratus.
* "I can't wait to go home and download some more Gordon Lightfoot and Anne Murray" -- username: rjelks
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