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10 June 2005

Music and File sharing

It's a bit of a long post today - as I've appended an editorial from the Financial Post by a lawyer on the recent file sharing decision of our Supreme court. I've been following the copyright issue in the US and here over sharing media files sampling and such - since being a Web Producer these affect the content of the web sites I work with an on.

Music file reopens: An appeal court ruling has made individuals who engage in music file sharing a little less confident. They should be

Julie Thorburn
Financial Post


Friday, June 10, 2005


When Federal Court judge Konrad von Finckenstein ruled, more than a year ago, against the Canadian Recording Industry Association (CRIA) in its attempt to force Internet service providers to reveal the identities of large-scale swappers of copyrighted music files, the judgment was described by one observer as a shot 'heard round the world.'
While this may have been somewhat of an exaggeration, the story did receive significant attention in the U.S. media, and was also picked up by some overseas outlets.
Considering how little international news coverage Canada seems to merit these days, the widespread attention given to this ruling outside the country highlights just how high the stakes are in this case.
Against the backdrop of hundreds of settlements in similar cases in the United States, and the continuing concern of the record industry to pursue claims on both sides of the border, Justice von Finckenstein's ruling came as a shock.
By comparing the individual act of putting music files into a shared directory to a library placing a photocopy machine on its premises, the judge 'didn't just poke a few holes in the industry's legal case' one reporter wrote at the time, 'he blew it completely out of the water.'

But, on May 19 the Federal Court of Appeal breathed new life into the record industry's case. Although the appeal court held that there was no "palpable and overriding error" on the part of Justice von Finckenstein that would enable them to overturn his ruling, they had a number of concerns regarding the lower court decision.

Writing for the full panel of the Federal Court of Appeal, Justice Edgar Sexton suggested that Justice von Finckenstein exceeded the proper scope of his authority in ruling on the key issue of copyright infringement, before a final determination of the issue at trial.

Justice Sexton also questioned the lower court's reading of copyright law, observing that individual privacy rights, though important, must sometimes succumb to the public's interest in intellectual property rights where copyright infringement unduly weighs upon those rights.

Perhaps most importantly, Justice Sexton suggested a recalibration of the scales on the issue of copyright infringement to ensure that neither side perceived an advantage. If the case moves forward, he concluded, "... it should be done on the basis that no findings to date on the issue of [copyright] infringement have been made."

On the basis of this statement alone, this decision should be seen as a victory for the music industry in Canada. The issue of copyright infringement, the sine qua non of the industry's legal case, is now firmly back on the table.

The court also provided the record industry with a road map for how to strengthen its case and come back with enough direct evidence to justify its request to compromise the privacy of individual music downloaders.

It now appears that, in the words of Justice Sexton, "... where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing an action." Essentially the court has said to the record industry, if you want a better result, come back with better evidence.

In the months following June, 2003, when U.S. record companies fired the first salvo in the current battle, data from tracking firms such as Nielsen Netratings showed a steady decline in the number of users of popular file swapping sites.

Clearly the record industry believes the availability of legal remedies to pursue music downloaders acts as a strong deterrent to Internet file sharing.

Yet for more than a year, the deterrent effect of litigation in Canada has been virtually non-existent.

Finally, thanks to the Federal Court of Appeal, somewhere out there, 29 people (whose names remain a mystery to the Canadian Recording Industry Association, at least for the time being,) are a little less confident than they've been for a while. They should be.

But for all the jockeying for position by both sides in this case, it is the federal government that holds the trump card. It soon will table legislation aimed at toughening digital copyright laws. Depending on the legislation's content, all the legal maneuvering by both sides so far may not matter much.
Julie Thorburn is a litigation partner and chairwoman of the Information, Communications and Entertainment law group at Cassels Brock.

© National Post 2005
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