Letter to Minister of Canadian Heritage about court decision.

Dear Honourable Liza Frulla,

Minister of Canadian Heritage and Minister responsible for the Status of Women.

Two important decisions were made available to Canadians today. In parliament a few hours ago, by the narrowest of margins, the Liberal government survived a non-confidence vote. This morning the Federal Court of Appeal handed down a decision that confirmed that the privacy rights of Canadians would be respected on the Internet.

Your words, as quoted by the media around the Junos, suggest that you had had not read or understood the earlier decision of the Federal Court by the Honourable Mr. Justice von Finckenstein (Citation: 2004 FC 488) that was being appealed. You falsely claimed that Canadian copyright law needed to be changed in order to clarify that unauthorized distribution of music via the Internet was illegal. You falsely claimed that the recording industry did not already have the legal tools to sue. Given this, I am including a copy of the appeal of this decision with the hopes that you will read it, and stop spreading Fear, Uncertainty and Doubt (FUD) about Canada's copyright act. If Canadians are confused about the legality of unauthorized distribution of music via the Internet, I believe you should accept some personal responsibility for this given your own words have suggested something that simply is not true.

I am also including an article written this evening by well respected lawyer Michael Geist, Canada Research Chair in Internet and E-commerce Law, and someone who is considered by most parties to be an expert in this area of law. While he points to the need for copyright reform, it is in a direction that protects the rights of Canadians, rather than only protecting the outdated business models of old-media, old-economy intermediaries against new competitors.

Yours sincerely,

Russell McOrmond

Ottawa, Ontario, Canada

Webmaster for http://digital-copyright.ca

Full contact information: http://www.flora.ca/#contact

C.C.: The Honourable David Emerson, P.C., M.P.

Mr. David McGuinty, M.P.

Mr. Charlie Angus, M.P.

Mr. Brian Masse, M.P.

Mr. Paul Crête, M.P.

Mr. Maka Kotto, M.P.

Ms. Bev Oda, M.P.

Mr. James Rajotte, M.P.

Note: To save paper I am only sending a full copy of the decision to the Minister of Heritage. The decision is available online at: http://www.cippic.ca/en/news/documents/19May2005Ruling.pdf (HTML version at: http://decisions.fca-caf.gc.ca/fca/2005/2005fca193.shtml )

BLOG article copied from http://www.michaelgeist.ca/ , which is a summary of the decision by Michael Geist.

Posted on Thu. May. 19/05 12:47:43 PM

Federal Appeals Court Upholds File Sharing Decision

This morning the Federal Court of Appeal issued its much-anticipated decision on music file sharing. The court upheld the lower court decision by denying CRIA's request for the identities of the 29 alleged file sharers. The reason for upholding the decision was straightforward - CRIA's evidence contained a wide variety of shortcomings and the appellate court was not about to issue a disclosure order in the face of bad evidence.

The court focused much of its discussion on the privacy concerns associated with disclosing the identities of the file sharers. Although it noted the importance of intellectual property protection, it emphasized that in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled." The court was clearly sympathetic to the privacy issues raised by the case and sought to map out some significant privacy protections. For example, it concluded that data associating users with an IP addresses goes stale very quickly and therefore evidence that is not current may be sufficient reason to dismiss a motion to disclose user identities. The court also noted that there must be care taken to ensure that personal information beyond the copyright allegations are not disclosed and that the identities of the individuals may be protected through confidentiality orders or by using initials.

While these protections are important, the court has certainly opened the door to new file sharing lawsuits. The court says that a "bona fide" standard is sufficient for disclosure, a different standard from the higher prima facie standard used by the trial judge. The court also left open many of the copyright issues, concluding that the trial judge should not have delved into the copyright analysis. While it raised some potential concerns with that analysis, the appellate court did not reach any definitive conclusions on the copyright issues.

This case will be dissected for weeks, but a quick analysis suggests there are three key long term impacts:

First, if the U.S. experience is any indication, we can expect thousands of suits against individual Canadians in the months ahead. The RIAA has already sued over 10,000 alleged file sharers in the U.S. While the suits have had no impact on rate of file sharing, the RIAA also shows no signs of abandoning its strategy. There is now every reason to think that Canadians will be subjected to a similar legal barrage. Moreover, while the lawsuits may have had little impact on file sharing activities, it is important to note that file sharing itself has not had a significant impact on the recording industry's bottom line. Although revenues have dropped over the past five years, a wide range of factors, including the popularity of DVDs and video games as well as the shift toward big box retailers as the primary retail channel (creating both pricing pressures and reduced availability of catalog sales) are clearly more important factors. Moreover, any loss in royalties for Canadian artists has been more than offset by the $120 million collected under the private copying levy.

Second, this decision should lay to rest claims that there is an urgent need for copyright reform in Canada. The government has indicated that it plans to establish a "making available" right, however, the Federal Court of Appeal ruling demonstrates that Canadian law does provide CRIA with the ability to purse its legal strategy, suggesting that this part of the reform package should be scrapped. While the making available right may not be necessary in Canada, the decision and the forthcoming suits point to the need for changes to Canada's statutory damages provisions. Those provisions could lead to hundreds of thousands of dollars in liability for individuals engaged in personal, non-commercial activity. By contrast, Napster now offers a catalog of more than 1 million songs for $15 per month. It is difficult to reconcile potential damage awards of hundreds of thousands of dollars given that the marketplace values the music in question at $15/month (or less under Yahoo!'s new service). The solution points to one aspect of urgent copyright reform -- the elimination of the Copyright Act's statutory damage provisions in these non-commercial cases so that exhorbitant damage awards used to pressure costly settlements become a thing of the past.

Third, the decision demonstrates the growing concern for personal privacy in Canada. While CRIA recently described P2P services as "the number one threat to privacy on the Internet", the reality is that this court, much like Justice LeBel of the Canadian Supreme Court, have expressed deep concern about the intrusiveness of Internet monitoring. Canadians get this, the Supreme Court of Canada and the Federal Court of Appeal get this, and most ISPs get it. The question now is whether CRIA will get it and abandon its legal strategy.