I replied to this p2pnet.net article discussing the fact that music revenue is on the increase with musings of my own.
Whether harmful, P2P distribution without authorization is already illegal and quite expensive..
"Nor is sharing music a crime in Canada or anywhere else. No money changes hands, and no sales are lost as a direct result."
We need to be very careful not to play into the hands of the music cartel. They are trying to convince parliament that there is a hole in the copyright act that disallows them from suing individuals who distribute music owned by the big labels without permission. As p2pnet has reported many times, the reason that the big labels lost the case before Justice Von Finckenstein is because of lack of evidence, not because the copyright act doesn't already provide them the tools to sue. (Please see CanFLI.org for court documents)
The 3 parts of the BMG vs. John Doe case
There were three parts to Justice Von Finckenstein's determination relating to three aspects of P2P distribution: uploading (sending, distributing, "sharing" - whatever term you prefer), "making available" and downloading (receiving). When authorized by the copyright holder it is obvious that all these activities are legal, so we can talk only about the situation where it is unauthorized.
Most people including the legal community got distracted by the "making available" aspect which, rightfully so, is not illegal in Canada. This is the proposal that the act of putting a file in a shared folder, even if the file is never sent to anyone, should itself be considered a infringement. This is part of the 1996 WIPO treaties. This was a distraction which allowed CRIA to claim that there was a hole in the copyright act which ratification of the 1996 treaties would close.
With downloading the judge properly discussed the interaction with the Private Copying regime which says that copying music for personal use is not an infringement. The act does not state that the source of the music must be authorized, making downloading for personal use not an infringement.
Uploading (sending) was the key issue to the case, and the least understood part. If a file came from your hard disk and ended up on mine, it is because your computer (possibly with the help of other computer for parts with advanced systems like BitTorrent) sent it to my computer. Instructing your computer to do this isn't an infringement right away (that is the "making available" part), but as soon as your computer sends the file that you are not authorized to send you are infringing copyright. In this case BMG did not provide adequate evidence, not even having a credible witness download a file and listen to it to determine what was in the file.
With this case going through an appeal, and with no new evidence being able to be offered, the fact that there was inadequate evidence will not change so it is unlikely that the outcome of the case will change so those specific 29 Canadians in my non-lawyer opinion have nothing to fear. This does suggest, however, that if CRIA wanted to they could collect evidence at any time for a new batch of Canadians and without any change in law be able to successfully sue them.
When BMG lost, the Recording Industry won!
While I am not going to officially state anything as I don't want to be a target of a lawsuit, I do not believe that BMG intended to win this case. They had one possibility of receiving the names of 29 people who they would then have to publicly sue in court. Alternatively they could convince policy makers that there is a "hole" in the copyright act that needs to be fixed in a way that would give CRIA a competitive advantage. If I were them I would have hoped for the latter situation, which is exactly what they got. Not only does the average P2P advocate believe that the copyright act doesn't provide CRIA with the legal tools to sue their customers, but the Heritage Minister is quoted as having this same misconception.
"We'll also be addressing the peer-to-peer issue," Frulla was quoted in a recent Canadian Press article. ``It will give the tools to companies and authors to sue."
The fact is that the recording industry already has far more than enough tools to sue those using P2P to send music without authorization. All CRIA members need to do is provide adequate evidence, something that is not all that hard to do.
I am drafting a reply letter to the Heritage Ministers office which will ask the following:
I must conclude that either the Minister is not aware of the facts of the case, or that she wishes to amend the copyright act such that the legacy recording industry would no longer need to provide evidence of wrongdoing in order to launch lawsuits against children. Is this really the message that the Minister and the Liberals wish to go to elections with?
P2P and other Internet-aware Canadians should try to make this an issue in the upcoming election. The NDP has already come forward with a more modern viewpoint, lead by NDP critic and musician Charlie Angus. The Conservatives have mentioned copyright in their policy, and need to have constituents try to get some details. Will it be the Liberals that are entirely left in the dark ages?
Unauthorized P2P is harmful to you!
While P2P is legal because it has important uses authorized by many modern copyright holders, unauthorized "sharing" is already not legal. It is important for people to realize this, and to know that they risk outrageous financial penalties if found guilty of unauthorized "sharing" via P2P. It does not matter whether money changed hand or no sales were lost, as a copyright holder does not have to prove harm in order to have the courts inflict statutory damages against an infringer.
Quoting from the Copyright Act:
Statutory damages
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just.
The math could get nasty: a few thousand files sent out via P2P multiplied by between $500 and $20K each could bankrupt nearly any Canadian. It is obvious that people will be forced to settle out of court for whatever the recording industry wishes to punish them with.
My strong advice to anyone who is distributing music without authorization is to discontinue. While we all recognize that the recording industry is not being harmed financially, this act is helping them with their lobbying efforts. This act is also harming the marketing efforts of those modern musicians who are authorizing their music to be distributed on P2P systems, making them unfairly compete for attention with music owned by the major labels who are lobbying against our collective interests.
---
Article published on p2pnet.net
