Federal Court of Canada Dismisses the CRIA’s Motion For Disclosure in its File-Sharing Suit and Upholds the Legality of Music File Downloading in Canada

May 2004

Record Labels, Internet, Music Publishers, Artists

The Federal Court of Canada has dismissed the Canadian Recording Industry Association’s (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet. In dismissing CRIA’s motion, the Court came to three key conclusions:
(1) The CRIA did not make out a prima facie case of copyright infringement;
(2) The CRIA did not establish that the ISPs are the only practical source for the identity of the P2P file swapper; and
(3) CRIA did not establish that the public interest for disclosure outweighs the privacy interests of the ISP customers.
With respect to copyright, Mr Justice Konrad von Finckenstein stated that copying a song for personal use does not amount to infringement. Individuals in Canada are free to copy music from CDs or tapes or download tunes from the Internet and save them on their own computers. This is provided for in Canadian Law where a levy system operates on some hardware, blank tapes and CDRs. The Court went further and held that copying files and saving them in shared directories on a peer-to-peer (P2P) network (such as Kazaa) is not copyright infringement. Referring to the recent Supreme Court decision of CCH Canada Ltd. v. Law Society of Canada, 2004 SCC 13, the court said it “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. ” The Court concluded that the mere placement of personal copies of music files in a shared directory which can be accessed via a P2P service does not amount to 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. On the privacy front, the court said it must balance privacy rights against the rights of other individuals and the public interest. Privacy laws cannot be used to protect a person from the application of either civil or criminal liability. Although the Court agreed that CRIA has a legitimate interest and is entitled to protect against infringement, it ruled that the privacy concerns outweighed the public interest concerns in favour of disclosure.
See : http://news.bbc.co.uk/1/hi/entertainment/music/3588659.stm

This article is taken from a review by Colin Adams of Deeth Williams Wall. For more information, see:href=”http://www.dww.com/newsletter/index.htm

For information on this subject see:http://www.cbc.ca/stories/2004/03/31/canada/download_court040331

Related articles on Law Updates:
April 2004 Canadian Record Industry Follows RIAA Model Despite Legislative Hurdles
February 2004 Canadian Copyright Board Rules on Private Copying Levies and P2P Music Downloading
February 2004 Netherlands Supreme Court Judgement in Kazaa v Buma & Stemra (2003)
February 2004 RIAA Lose a Valuable Tool in the Fight Against Piracy as Verizon win appeal

ARTICLE: by Ben Challis
Don’t Shoot The Messenger: Copyright Infringement in the Digital Age at:
http://www.musicjournal.org/03dontshootthemessenger.html and athttp://
The Canadian music industry is fighting a decision that endorsed music swapping on popular sharing services such as Kazaa. In a five-page notice of appeal filed in the Federal Court, the Canadian Recording Industry Association argued current copyright legislation unequivocally prevents people from freely copying or downloading songs from the Internet. In its appeal document, the CRIA argues it has grounds for appeal because the “judge made serious and reviewable errors of law, made overriding and palpable errors in his assessment of the factual record before him, and, in the end, purported to exercise his discretion on improper and irrelevant bases, and in a manner of excess of his jurisdiction.” Four of the five Internet service providers – Bell Canada, Shaw Communications, Telus Communications and Rogers Cable – had argued in court that they weren’t compelled to hand over the information because privacy legislation protected the identities of their customers. Heritage Minister Helene Scherrer has also promised to punish music file sharers. She has said that her department, in tandem with Industry Canada, plans to draft legislation to amend a loophole in the Copyright Act that permits music downloading. Had Canada already ratified two relevant WIPO Treaties by legislative amendments to theCopyright Act, the outcome of the CRIA case might well have been different.

See: http://www.cjad.com/content/cjad_news/article.asp?id=e041349A

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