Begin forwarded message:

From: Declan McCullagh <declan@xxxxxxxx>
Date: Wed Mar 31, 2004  7:40:03  PM Canada/Mountain
To: politech@xxxxxxxxxxxxxxx
Subject: [Politech] It's official: File sharing is legal in Canada, by Milana Homsi [ip] 



-------- Original Message --------
Subject: Canada does it again- Filesharing is now officially legal!
Date: Wed, 31 Mar 2004 19:59:27 -0500
From: Milana Homsi <mhomsi@xxxxxxxxxxx>
To: 'Declan McCullagh' <declan@xxxxxxxx>


Declan,
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/story/RTGAM.20040331.wdownload0331/ BNStory/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/whatsnew/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/48/Memorandum_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

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Milana Homsi
University of Ottawa Faculty of Law, 3L

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