p2pnet.net News:- In the second blow against Big Music in two days, Canada’s Justice Konrad von Finckenstein has ruled that putting music into a computer directory that might be shared remotely by someone else doesn’t constitute copyright infringement under Canadian law.

The milestone ruling comes as Big Five record label - Universal Music, Warner Music, EMI, Sony Music and Bertelsmann’s BMG - continue to accelerate their attempts to gain control of the way music is distributed online.

As part of the effort, they’d instructed their CRIA (Canadian Recording Industry Association) to get a court order to force five Canadian ISPs to hand over the names of 29 people the labels claim were “each illegally distributing hundreds if not thousands of music copyright files to millions of strangers”.

On March 15, “We are confident that the court will require internet service providers to disclose the identities of alleged digital music infringers,” said CRIA general counsel Richard Pfohl. “The approach we have taken protects Canadians’ privacy rights while ensuring that people can’t steal music and remain anonymous.”

However, von Finckenstein decided, “No evidence was presented that the alleged infringers either distributed or authorised the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user(s) via a P2P service.”

He also said the labels had not:

• “Made out a prima facie case (their affidavit evidence is deficient, they have not: made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement),
• “Established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
• “Established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.”

In another announcement that spelled bad news for the music industry, “Downloads have an effect on sales which is statistically indistinguishable from zero,” said Felix Oberholzer (Harvard Business School) and Koleman Strumpf (UNC Chapel Hill) in their new empirical analysis of the effect file sharing has on record sales.

Buy our music - or else!
In the meanwhile, the labels yesterday enacted another phase of their hard-core marketing plan to compel music lovers around the world to buy ‘product’.

Their IFPI and other enforcement units in Denmark, Germany, Italy launched “the first wave of international lawsuits charging individuals with illegally file-sharing copyrighted music”. Shortly afterwards, their French unit followed suit.

A total of 247 “alleged illegal file-sharers face legal action in a move that steps up the industry’s international campaign against online copyright theft,” says the IFPI in a puff release, also threatening that, “Further waves of lawsuits against major offenders will be launched in different countries in the coming months.

Big Music believes that to survive in the digital age, it has to replace p2p networks with corporate online music stores it backs and supplies.

The impact of von Finckenstein’s decision is likely to be significant. Canadians are avid Websters and in 2002, 51% of all Canadian households had at least one member who regularly used the Internet from home, up from 49% in 2001.

And it’ll be interesting to see what Quebec’s Videotron will do.

With more than 430,000 Internet customers, it supplies high-speed cable Internet access throughout Quebec by cable and dial-up modem and is one of the five ISPs in the CRIA’s sights.

The other four are Telus, Shaw, Bell Sympatico and Rogers Communications, all of which refused to hand their clients’ names over to the CRIA.

Not Videotron, though. It’s owned by Quebecor Media which is in turn a Archambault Group subsidiary, Archambault being the largest Quebec-based distributor and retailer of recorded music.

Last November it came out with a radio, tv and newspaper “awareness” project “similar to the RIAA campaign” against p2p file sharing.

But Shaw Communications president Peter Bissonnette was delighted.

“We are very, very pleased and I’m sure our customers are as well,” he’s quoted as saying in a CTV.ca story here. “We have obligations to protect the privacy of our customers. We’ve always taken that approach.”

However, the chances of Big Music giving up are, of course, zero.

CTV’s David Akin said the decision is different from similar rulings in the US where the music industry has sued 1,977 people since last fall. It has reached out-of-court settlements in around 400 cases.

“Some lawyers were saying the music industry might have hurt its case through legal sloppiness,” Akin says in the CTV report.

“They really didn’t have their t’s crossed and their i’s dotted. They would likely go back and assemble the evidence the judge said was missing. The judge said clearly there are some tests that have to be met, and the record industry failed to meet those tests.”

Once they do that, the industry can resubmit its case, says CTV, adding.

“Until then, Canadian online music traders are free to keep swapping songs, Akin said.”

And don’t forget - Canada is the country where Big Tobacco learned you can’t get away with it forever.

Go here for a .pdf of the decision.

This entry was posted on Wednesday, March 31st, 2004 at 10:53 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

HOME

Viewed 12514 times