ADVANCE: May 18, 2005
Federal Court of Appeal to render decision in file-sharing case:
Canadians' Online Privacy Rights at Stake
Ottawa, ON - May 18, 2005 - The Federal Court of Appeal will render its decision in the case of BMG et al v. John Doe et al on May 19, 2005. This case focuses on whether Internet Service Providers should be required to turn over to the music industry the identities of 29 alleged file-sharers.
The Canadian Internet Policy and Public Interest Clinic (CIPPIC) intervened in the case, assisting the Court of Appeal by presenting public interest arguments on privacy and copyright law that the parties to the motion might not otherwise put forward. Alex Cameron and Howard Knopf argued the case for CIPPIC.
"This will be an important decision," said Philippa Lawson, CIPPIC's Executive Director. "It will establish the test for when a court will require an Internet Service Provider to turn over the identities of its customers to those who want to sue for some alleged civil wrong such as copyright infringement or defamation."
"This case is primarily about privacy," stated Alex Cameron.. "We all have important privacy interests in our online identities. On number of occasions now, Supreme Court of Canada Justices have stressed that our privacy is 'essential' to our well-being and of 'profound significance' for public order. We should be very careful about the circumstances in which we allow disclosure of online identities."
David Fewer, CIPPIC's staff counsel, agrees. "We hope that the Court of Appeal will uphold the absolutely fundamental principle that privacy rights of individual Canadians must not be sacrificed in the absence of clear evidence of wrong doing. In this case, CRIA had neither: CRIA's evidence was woefully deficient, and CRIA failed to make out its case for copyright infringement."
The case has also attracted attention because of the Federal Court's decision last year that merely making music files available on one's computer does not constitute copyright infringement under Canadian law.
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For more information, contact:
David Fewer or Philippa Lawson, Alex Cameron, Howard Knopf
http://www.cippic.ca/en/about-us.html
Background
On February 10, 2004, Canadian Recording Industry Association (CRIA) launched a lawsuit in the Federal Court of Canada against 29 unnamed individuals (John and Jane Does). CRIA alleged that each defendant shared sound recording files over peer-to-peer networks (using Kazaa's peer-to-peer technology) and in doing so infringed the rights of CRIA's members in those sound recordings. CRIA could not identify the defendants by name because CRIA could only identify them by their Kazaa pseudonyms (such as Gangsta_Cool@KaZaa), and - more questionably - by the IP address associated with the pseudonym.
To discover the identities of the 29 John and Jane Does, CRIA filed a motion to compel certain Internet Service Providers ("ISPs") to provide CRIA with the identities of certain of the ISPs' customers. CRIA alleges that these identifies match the Kazaa pseudonyms and IP addresses of the defendants.
Justice Konrad von Finckenstein heard the motion on March 12, 15, and 31, 2004, and on March 31, 2004, dismissed it. Justice von Finckenstein held that CRIA's evidence was deficient in many respects, including:
- CRIA's evidence was mostly hearsay, when the individuals with specific knowledge were otherwise available to provide the evidence;
- CRIA provided no evidence that the allegedly infringing files were in fact copies of the plaintiffs' sound recordings rather than "spoof" files distributed by the plaintiffs themselves;
- CRIA provided no evidence on how it linked the defendants' Kazaa pseudonyms to the IP addresses of the ISPs' customers;
- CRIA's evidence failed to establish that the ISPs were the only practical source of the identities behind the pseudonyms; and
- CRIA delayed several months after gathering its evidence before filing its motion, increasing the serious risk identifying an innocent account holder.
Noting that ISP customers have important privacy rights, Justice von Finckenstein declined to set those rights aside on the basis of evidence of such poor quality.
Justice von Finckenstein also ruled that merely downloading and making music files available on one's hard drive does not infringe copyright under current Canadian law. He ruled that "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. No such evidence was presented by the plaintiffs in this case." Accordingly, for this and other reasons, CRIA had not made out a case of copyright infringement under Canadian copyright law.
The basis for the judge's decision in this respect lies in a combination of features of Canadian copyright law: (1) Canada has a "private copying" regime which allows one to copy music onto blank media for personal use; and (2) Canadian copyright law currently lacks a "making available" right for sound recording producers, which would give sound recording owners the exclusive right to make sound recordings available to the public.
On March 24, 2005, the Canadian government announced that it intends to amend the Copyright Act to create a new "making available" right for sound recording producers, and that it would review the private copying regime.
For more background information, see:
CIPPIC website on CRIA file-sharing lawsuits:
http://www.cippic.ca/en/projects-cases/file-sharing-lawsuits/
The Federal Court of Canada decision under appeal:
http://www.canlii.org/ca/cas/fct/2004/2004fc488.html
The March 24, 2005, government announcement on proposed amendments to the Copyright Act:
http://strategis.ic.gc.ca/epic/internet/incrp-prda.nsf/en/rp01140e.
CIPPIC's involvement in the copyright revision process:
http://www.cippic.ca/en/projects-cases/copyright-law-reform/