p2pnet.net News:- In March, 2004, the Big Music cartel`s CRIA (Canadian Recording Industry Association of America) failed in its attempt to force five Canadian ISPs to hand over the identities of clients.
Now the Canadian Federal Court of Appeal will this week hear arguments in BMG Canada v John Doe as the labels continue in their attempts to bring file sharing and file sharers under their exclusive control, using rulings from courts around the world to intimidate them into buying ‘product’.
Cartel members Warner (US), EMI (UK), Sony BMG (Japan, Germany) and UMG (France) make a practice of using their financial and political weight to have firm rulings overturned.
Their RIAA (Recording Industry Association of America) recently lost its bid to get the US 8th Circuit to grant a rehearing of a ruling invalidating pre-suit subpoenas which would help the RIAA ferret out information on alleged unauthorised file-sharers.
It`s also currently trying to get a p2p-related decision by two US courts reversed for the third time.
When it gets the names of alleged file sharers, it sends them subpoenas which serve as PR material but which don’t actually result in court cases.
In his March, 2004, decision, justice Konrad von Finckenstein heavily criticized CRIA ‘evidence’ and refused to order the five ISPs to disclose the identities of 29 subscribers.
“We said we were not prepared to compromise,” Shaw Communications president Peter Bissonnette told p2pnet at the time.
The law is stil the law
We asked CIPPIC counsel David Fewer if he’s optimistic about the possible outcome this time around.
“The evidence hasn’t changed, ” he told p2pnet. “And the evidence was horribly weak. I’m very confident that the CRIA’s evidence is no better today than it was a year ago, and the federal court of appeal will say it’s inadequate to give the extraordinary remedy the CRIA is seeking.
“And the copyright act hasn’t changed, although the CRIA is trying to statutorily overturn the trial judge’s decision. But they haven’t suceeded in doing that yet and until we see a bill, the law remains what the law is.”
However, Canadian heritage minister Liza Frulla recently agreed to try to help the Big Music record label cartels by having Canada’s `antiquated` intellectual property laws altered through new copyright legislation, promising to, “give the tools to companies and authors to sue”.
Moreover, in the proposals, she and industry minister David Emerson want a, `notice and notice` regime in relation to the hosting and file-sharing activities of an ISP’s subscribers would be provided for.
Under it, when an ISP, “receives notice from a rights holder that one of its subscribers is allegedly hosting or sharing infringing material, the ISP would be required to forward the notice to the subscriber, and to keep a record of relevant information for a specified time, say the proposed changes to Canada`s Copyright Act,” they say
If the changes go through, the music cartels will victimize Canadians for sharing music online in the same way they do Americans. And that’s what BMG Canada v John Doe (slated for Wednesday, April 20, and Thursday, April 21 at 330 University Avenue, Toronto, 5th Floor) is all about.
Hearing it will be chief justice John D. Richard and justices Marc Noel and J. Edgar Sexton.
Which way will they go?
Richard has experience in IP law and authored U & R Tax Services Ltd v H & R Block Canada Inc (1995), 62 C.P.R. (3d) 17 (FCTD), a decision on the standard of originality required for copyright. He opted for a “sweat of the brow” standard, meaning all that’s required for copyright to vest is the expenditure of labour (so the white pages – simple databases – would merit protection).
The SCC overturned this standard in the CCH case, holding that more is required than mere mechanical labour – that skill and judgment are necessary as well.
This means merely mechanically assembled databases don’t enjoy copyright protection in Canada.
Justice Noel penned the Court of Appeal’s December 2, 2004 decision in Amico Imaging Services Inc v Canadian Private Copying Collective, 2004 FCA 412, the “private copying decision”.
This suggested that “devices” aren’t “media” for the purposes of the private copying decision.
CIPPIC associate Alex Cameron and outside lawyer Howard Knopf will again act as counsel for CIPPIC.
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lost its attempt – Keep on swapping! Cdn file sharers told, p2pnet, March 31, 2004
invalidating pre-suit subpoenas – 8th Circuit says No to RIAA, p2pnet, April 14, 2005
third time – Grokster v Hollywood, reloaded, p2pnet, January 25, 2005
court cases – File sharing, p2p criminals, p2pnet, March 12, 2005
compromise – UK ISPs will name clients, p2pnet, October 15, 2004
agreed to try to help – Frulla backs Big Music, p2pnet, April 5, 2005