Download ruling leaves door open to improved evidence, appeal by CRIA

The Canadian Recording Industry Association (CRIA) will appeal a March 31 Federal Court of Canada ruling against its efforts to get at subscriber information for 29 individuals suspected of violating music copyright laws (CNM Special Update, March 31/04; CNM, Feb. 20/04). Though the ruling by Justice Konrad von Finckenstein has been lauded by many who oppose CRIA’s efforts, the door is still open to further suits. CRIA counsel Richard Pfohl didn’t disclose the organization’s legal strategy in a media release - except to confirm that it would appeal the ruling - but it’s widely expected that the industry lobby group will ask the Federal Court of Appeal to overturn the decision on the basis that von Finckenstein used too strong a test to determine the motion’s validity. In his decision, von Finckenstein found the recording industry had made too tenuous a link between the pseudonyms of users and their IP addresses, and that the link was again weak between the availability of files on those users’ hard drives and actual copyright infringement. The poor evidence, he wrote, meant that CRIA’s requested order would have been too onerous an invasion of privacy without substantiating proof of wrongdoing. Users rights groups are trumpeting two specific passages in the decision, the first of which confirms the Copyright Board of Canada’s decision last December that downloading songs from the Internet isn’t illegal. In the second, von Finckenstein determines that just having files available in a shared folder doesn’t violate copyright laws. He writes: "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. 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." In rendering his decision, the judge drew a parallel between file-sharing and the availability of photocopiers in a library. He cited the recent CCH vs. Law Society of Upper Canada case, in which the Supreme Court of Canada stated that the availability of photocopiers, which may or may not be used to infringe copyright, doesn’t render their owners liable for infringement by others using the equipment (CNM, March 17/04). While it will prove difficult in future suits to get around the apparently strong language on the legality of file-sharing as written by von Finckenstein, much of the decision was devoted to poor evidence that can likely be improved in the next round by CRIA. Evidence about how the IP addresses and user names were gathered, for example, was presented in court by the president of a research firm - and not by his employees who did the work. Thus, the judge found, he couldn’t accept the evidence as strong enough to warrant CRIA’s motion. Similar mistakes in presenting evidence will undoubtedly be avoided by CRIA in the future. What remains to be seen is how CRIA goes about its appeal. It may choose to concentrate only on the copyright aspects of the decision, which would likely remove ISPs from the equation since those companies are neutral on the issue of whether having music tracks in a shared file is illegal. That would leave poorer users rights groups to carry on the battle, though it is also the issue on which CRIA is perceived as most likely to lose. CRIA may, however, base an appeal on several aspects of the decision with which it disagrees, including too harsh a test for the production of information orders. That approach would again pit it against the rich ISPs, and again with unpredictable consequences. Pippa Lawson, head of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), says her organization is willing to go the distance on further suits if it needs to, but is unsure that the effort will be necessary. "It’s going to be too difficult for them. They’re probably going to focus on legislative reforms to try to get what they want in the legislation. The judge has said, ‘the law doesn’t say what you think it says.’ They’ve been trying for the last two years, lobbying for a making available right," she says, adding that the clinic will be a party to any appeal of this decision. ISPs are also lauding the ruling. TELUS Corp.’s Jay Thomson says the ruling is consistent with the company’s desire to protect its customers’ privacy. Shaw Communications Inc.’s Peter Bissonette says his company is also pleased with the decision. "(Von Finckenstein) might have opened the door for them. He wasn’t happy with the process they took, and he suggested there might be a different approach. But, he essentially accepted our arguments with respect to the accuracy of information. He certainly raised the bar in terms of copyright infringement, that he’s not convinced that it is. CRIA will certainly try some alternative approach. But, it’s a good day," Bissonette says. Some are looking askance at the final part of the decision, in which von Finckenstein takes a hypothetical stab at drafting a possible production order that would force ISPs to turn information over to a third party. While CRIA will undoubtedly welcome the guidance in drafting future motions, Lawson says that the judge is likely looking to put his stamp on future ISP/complainant relationships in non-copyright cases where there is a more compelling reason to force ISPs to hand over personal information.

Download ruling leaves door open to improved evidence, appeal by CRIA

Broadcast | April 2, 2004

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