Lucky Canadians

[AweShucks]

Judge: File sharing legal in Canada

By John Borland
Staff Writer, CNET News.com




update Sharing copyrighted works on peer-to-peer networks is legal in Canada, a federal judge ruled on Wednesday, handing the record industry a sharp setback in its international fight against file swappers.

Canadian record labels had asked the court for authorization to identify 29 alleged file swappers in that country, in preparation for suing them for copyright infringement, much as the Recording Industry Association of America (RIAA) has sued more than 1500 people in America.

But the judge denied that request. In a far-ranging decision, the court further found that both downloading music and putting it in a shared folder available to other people online appeared to be legal in Canada

"This has certainly stalled (the record industry's) current round of litigation, and...thrown into doubt whether there is infringement at all," said Michael Geist, a University of Ottawa law professor who closely follows Canadian copyright issues.

The Canadian Recording Industry Association (CRIA), which brought the case, said it did not agree with the judge's ruling.

"We are reviewing the decision received today from the trial court and expect to appeal it," CRIA General Counsel Richard Pfohl said in a statement. "In our view, the copyright law in Canada does not allow people to put hundreds or thousands of music files on the Internet for copying, transmission and distribution to millions of strangers."

The ruling affects only Canada, but it could have wider repercussions if it stands. The U.S.-based RIAA has filed hundreds of lawsuits against file swappers in hopes of lessening the amount of copyrighted material available for download through peer-to-peer networks such as Kazaa or Morpheus.

But many studies, including one this week from professors at Harvard and the University of North Carolina at Chapel Hill, have noted that computer users on peer-to-peer networks often download material across national borders.

Canada's debate over file swapping flared last December, when the country's Copyright Board, which regulates intellectual property issues, ruled that downloading songs from a peer-to-peer network for personal use--but not necessarily uploading--appeared to be legal.

The regulators cited a long-standing rule in Canada, in which most copying for personal use was allowed. To repay artists and record labels for revenue lost by this activity, the government imposes a fee on blank tapes, CDs and even hard disk-based MP3 players such as Apple Computer's iPod, and distributes that revenue to copyright holders.

At the time, CRIA attorneys said they did not agree with the Copyright Board's decision, and that they expected courts to rule differently. Last month, they launched the first step in filing lawsuit against alleged music sharers, seeking authorization from the courts to identify 29 Net users at various Internet service providers (ISPs) around the country.

In his ruling Wednesday, Judge Konrad von Finckenstein rejected that request on several grounds. In part, he said the recording industry had not presented evidence linking the alleged file swapping to the ISP subscribers that was strong enough to warrant breaking through critical privacy protections.

But he also questioned whether CRIA had a copyright case at all.

With respect to downloading, the judge accepted the Copyright Board's early decision almost without comment. But he went further, citing a recent Supreme Court decision to say that making music available online also appeared to be legal.

In that recent case, the Supreme Court ruled that libraries were not "authorizing" copyright infringement simply by putting photocopy machines near books. The libraries were justified in assuming that their customers were using the copiers in a legal manner, the high court ruled.

Finckenstein said the same rationale should apply to peer-to-peer users.

"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," Finckenstein wrote. "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."

Ottawa's Geist said this appeared to make uploading itself legal as well, since a peer-to-peer user--like a library--would be entitled to assume that the person on the other side of the connection was acting legally, since downloading was also legal in Canada.

The decision was hailed by Net activists on both sides of the border.

"I think it is a big victory for technology and the Internet and all the people who use technology and the Internet in Canada," said Howard Knopf, an attorney who works with the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. "The court accepted that copyright legislation has to be read as it is, not as CRIA would like it to be."

The decision is likely to spur more legislative action in Canada, however. The country has not yet ratified World Intellectual Property Organization (WIPO) treaties that contain more specific language saying that only copyright holders or their licensees have the ability to make copyrighted works available to others.

In the United States, the provisions of that treaty were implemented in the controversial Digital Millennium Copyright Act. CRIA has lobbied hard to have a similar bill introduced in Canada, but without success yet. However, the Canadian government has recently indicated that a WIPO implementation bill could be introduced and passed by the end of this year.

On Tuesday, the International Federation of the Phonographic Industry said it was filing 247 lawsuits against alleged file sharers in Denmark, Germany, Italy and Canada.


Source = http://news.com.com/2100-1027_3-5182...?tag=nefd_lede

[greedy_lars]

no chit, they also have cheaper drugs and weed in their pharmacys.

[ONEMANBANNED]

We don`t water our beer down either

[telefunkin_u47]

I've said it before, and now I'm gonna say it again..................



I'M PROUD TO BE CANADIAN!!!!!!

[JackSpratts]

it doesn't get any better than this.

this is simply the greatest pro-consumer decision in the history of copyright law & the internet. it is far bigger than any other decision to date, bigger even than last years u.s. ruling legalising p2p, and that one was tidal.

it changes everything.

unfortunatly for the rest of the world, it only changes everything in canada.

nevertheless it will be worth exploring placing servers in canada to host content for the us and europe. if the decision stands i’ll be looking into setting up a centralized opensource p2p close to the border, a system that would be at least as good in delivering files as the original napster, better even, providing fast access to every extant file.

this is a whole new ballgame kids.

- js.

[multi]

sadly in australia we seem to be going in the other direction..with a whole heap of new copyright provisions in this free trade agreement...

after signing the FTA songs like 'waltzing matilda' that are currently in the public domain ..will have their copyrights extended a number of years...

while also trying to cover up the fact that CD sales have been better than ever..
so they can keep on their downloading hurts the industry speil..

good on canada tho
i hope some of it starts rubbing off on other countries..

[napho]

I'm a little skeptical here. Konrad von Finckenstein sounds like a made up name.

[the hunter]

Nope its not a joke, and this writer uses a nice turn of words to express himself.http://www.theglobeandmail.com/servl...tory/Business/

[telefunkin_u47]

correct me if i'm wrong, but didn't australia report record earnings in cd sales in 2003?

[walktalker]

Here's an interesting story about the mixed opinions inside the canadian music industry.

Music industry does not react with one voice
Executives at the major record labels have always been clear on the matter: File sharing is wrong. Dead wrong. No court decision will ever likely change their minds. But ask anyone else connected in some way with music -- from artists and small record company managers to listeners and file sharers themselves -- and you'll get myriad views on the matter, pro and con. The decision Wednesday in a Toronto Federal Court against the Canadian Recording Industry Association's attempt to sue file sharers in Canada doesn't seem to have changed opinions much.
http://www.theglobeandmail.com/servl...tainment/Music

[walktalker]

Yet another interesting insight, this time by the National Post:

How the music industry blew its piracy case
It was the Canadian music industry's worst nightmare: International media pronouncing that Internet music file sharing is legal in Canada. "Swapping songs online is legal," read a USA Today headline yesterday, while the Houston Chronicle announced "Canadian judge allows file-sharing." Neither of those headlines entirely reflects what Federal Court Judge Konrad von Finckenstein wrote in his decision. But they are representative of the public perception of the landmark ruling. How did the music industry end up at a point where it is considered the Wild West of the Internet and Canada is considered a place where copyright has no value? That's exactly what Brian Robertson, president of the Canadian Recording Industry Association, and Richard Pfohl, the organization's chief counsel, are trying to figure out right now. The stage was set for a disaster from the start.
http://www.canada.com/national/natio...9-447d23c0ccbe

[multi]

an article by
Drake Zamanov
April 1, 2004
from slyck:

On March 31, Kondrad Von Finkenstein ruled in favor of the 29 Canadian file sharers named in the CRIA’s lawsuit. The case against the 29 Canadian file sharers was virtually identical to the cases against American file sharers. Despite the similarities, the outcome was extraordinarily different.

The CRIA lost the case because they failed to provide sufficient evidence against these 29 file sharers that they claim violated copyrights. Here are a few highlights of the judge’s decision.

In regards to Media Sentry’s President, Gary Millin’s affidavit, the judge stated, “The major portions of these affidavits are based upon information which Mr. Millin gained from his employees. Accordingly, they consist largely of hearsay. Pursuant to Rule 81(1), hearsay and other forms of information gained on belief may be admissible provided that the grounds for the belief are stated. Beyond stating in cross-examination that, as President of MediaSentry ‘a company of 20-25 employees’, he had ‘general oversight for the business and particular strategy”, Mr. Millin gives no reason for his beliefs. This is insufficient.” The judge went on to say that MediaSentry employees would have been in a better position to swear the affidavits in question and to answer questions in court.

The Judge also pointed out that Mr. Millin testified that his company also provided a service called “MediaDecoy” which distributes bogus or inoperative files over the internet. Mr. Millin stated that he didn’t listen to any of the files copied from the alleged 29 infringers and stated that his company was not hired to listen to these files. In his decision, the judge stated the following; “This kind of remove evidence in no way qualifies under Rule 81. There is, thus, no evidence before the Court as to whether or not the files offered for uploading are infringed files of the plaintiffs.”

In addition, the CRIA failed to inform the court how these 29 IP address were identified. The judge was not impressed by the lack of evidence and stated, “There is no evidence explaining how the pseudonym Geekboy@KaZaA was linked to IP address 24.84.179.98 in the first place. Without any evidence at all as to how IP address 24.84.179.98 has been traced to Geekboy@KaZaA, and without being satisfied that such evidence is reliable, it would be irresponsible for the Court to order the disclosure of the name of the account holder of IP address 24.84.179.98 and expose this individual to a law suit by the plaintiffs."
more..

[Jadesun]

Yes..... I had read an article in our local paper the other day on file sharing/copyrighted material (specifically music)......Canada can download away.... Go Canada Go