Analogy for the CRIA case

There's a lot of confusion about the CRIA case (formally BMG Canada Inc. and others v. Doe and others 2004 FC 488). As the CRIA is fond of analogies that treat copyrighted works as physical property, I thought I might try one for this case.

Here's the key part of the case, which has been widely reported as "File sharing is legal in Canada".

Record Companies : Your honour, we'd like to enter these pictures of people standing outside a record store as evidence. We've also got a witness here.

Record Companies' witness : A friend told me that the people in the photograph have stolen CDs from the store.

Judge : That's hearsay. The witness you need is your witness's friend. I can't accept the evidence from your witness.

Judge : Standing outside a record store isn't a crime in Canada. You've failed to produce any admissible evidence that a crime was committed, so you lose.

And the aftermath :

Record companies' press release : This is why Canada needs to ratify the WIPO Record Store Treaty, which would make standing outside a record store illegal.

The press : Stealing CDs is legal in Canada.

Of course, the actual case is far more complex and involved many more issues, but the key point is that the record companies produced no admissible evidence that the people "making available" the music actually sent copies anywhere. Rather than produce that evidence, they'd prefer that we change the law to make "making available" illegal, even though there's no harm done to them unless actual copying (which is already illegal) occurs.

(I'm not a lawyer, by the way.)