CIPPIC on Big Music’s defeat
p2pnet.net News View:- Big Music has again been trounced in Canada and most online reports got it right – that this is a major let-down for the corporate music industry.
But as we predicted, its wholly owned CRIA – its president, Graham Henderson is pictured on the right – is trying to dress the defeat up as a major victory.
At the hearing, the Canadian Internet Policy and Public Interest Clinic presented public interest arguments on privacy and copyright law and in this p2pnet special, CIPPIC legal counsel David Fewer clears up any misunderstandings about whether the Big Music cartel’s CRIA (Canadian Recording Industry Association) won or lost.
Read on >>>>>>>>>>>>>>>>>>>>>>>>
Unspinning the spin
By David Fewer – legal counsel, CIPPIC
There`s been a lot of spin from CRIA on the file-sharing decision. Incredibly, they`ve gone so far as to claim victory.
Let me assure you, this has been a very expensive and embarrassing defeat for CRIA (Canadian Recording Industry Association).
It lost at the Federal Court, it lost at the Federal Court of Appeal, it chewed through hundreds of thousands of dollars, three law firms and two presidents (and if I were Graham Henderson, I`d make sure my resume is updated).
The CRIA now claims victory because now it’s been given a roadmap for how to sue its owner’s customers for copyright infringement.
Let`s talk a little bit about that map, and about the CRIA`s spin on the copyright claim itself.
First, the roadmap: Pippa Lawson, CIPPIC`s executive director, has distilled the following test from the FCA judgement:
1. Plaintiff must show that it has “a bona fide claim” against the proposed defendant, “i.e., that they really do intend to being an action based on the information they obtain, and that there is no other improper purpose for seeking the identity of these persons”. (para.34)
2. “There should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the named websites.” (para.35)
3. “The public interest in disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made” (para.36) and ” caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way” (para 42):
a) the information on which a request for identification is made (eg, IP address) must be timely; no undue delay between investigation and motion for disclosure (para 43)
b) plaintiffs must not collect more personal information than necessary for the purpose of their claim (para.44)
c) if a disclosure order is granted, specific directions should be given as to the type of information disclosed and the manner in which it can be used. In addition, the court should consider making a confidentiality order or identifying the defendant by initials only (para.45) ** If either (a) or (b) are not met, the court may refuse to make a disclosure order.
Oh, yeah Pippa didn`t bother to include the obvious ones, like don`t use inadmissible hearsay evidence. But maybe she should have. That one wasn`t so obvious to CRIA last time around.
This is a stiff test for obtaining an order to disclose the identity of an ISP customer and I`m not aware of any jurisdiction in the world that offers this kind of respect for privacy rights. I`m sure the MPAA (Motion Picture Association of America), the other content industry organization that’s suing its customers, is absolutely furious at the way the music labels have dropped the ball on this in Canada.
And what about the copyright claim? Graham Henderson was quoted in Dose as saying, “The judge has determined that uploading, downloading, it’s illegal.”
Wrong, wrong, wrong.
I can only assume Mr Henderson was either misquoted or hadn`t read the judgment.
What the Court of Appeal actually said was: “I make no such findings here and wish to make it clear that if this case proceeds further, it should be done on the basis that no findings to date on the issue of infringement have been made.”
The Court of Appeal vacated the lower court decision, but explicitly and very clearly didn`t even consider the merits of the copyright claim. That’s an analysis that will have to wait for trial (or a statutory over-ride in the form of a new copyright bill).
So the law on uploading, downloading, p2p and making available remains the same as it was before the CRIA went to court last February – Uncertain and Unclear.
That said, we do have the benefit of von Finckenstein`s analysis at the Federal Court, the Court of Appeal`s observations on the issues (which is in no way direct an alternative conclusion to that reached by Justice von Finckenstein), and about a billion whiny statements by CRIA spokespersons that they need a making available right to shut down uploaders.
And as for the CRIA well, spin is one thing, but what to say about that whopper on uploading, downloading, it`s illegal?
How about truth, fiction, it`s irrelevant?
======================
Something you think we should know? tips[at]p2pnet.net
May 21st, 2005 at 3:39 pm
Hey, I would lie like hell if my million dollar salary was on the line
May 21st, 2005 at 3:50 pm
For the Big Four record labels, truth and reality are no more than PR tools to be adjusted to fit as occasion demands.
and thats the truth =)
May 21st, 2005 at 4:49 pm
Reading this I want to hilight something that was said by Pippa Lawson, CIPPIC?s executive director.
1. Plaintiff must show that it has “a bona fide claim” against the
proposed defendant, “i.e., that they really do intend to being an
action? based on the information they obtain, and that there is no
other improper purpose for seeking the identity of these persons”.
(para.34)
I am wondering if past attempts by CRIA members (including outside of Canada) to force defendants to settle out of court can be used against CRIA in this type of case. One of the troubling aspects of this case is that we may never get judicial clarification that unauthorized downloading of music is legal because of the private copying regime. Plain-language reading of the act as well as a Copyright Board ruling says so, but that doesn’t seem to be enough to stop CRIA lies.
Since unauthorized uploading/sending/etc seems to be being misunderstood by the legal community (and thus the claims there is a need for yet another exclusive right with “making available” rather than simple clarifications on existing rights) it would also be helpful to clarify the illegality of this.
If we had such a decision we would have ammunition against the WIPO treaty ratifications on which appear to me to be all about “spreading the liability” as widely as possible and taking control of technology in order to discourage anyone other than broadcast-era companies from communicating music and other works.
May 21st, 2005 at 7:01 pm
bite me!! entertainment gangsters
May 21st, 2005 at 9:49 pm
That would make you…American
May 21st, 2005 at 9:58 pm
I guess I’ll have to go back to taping music on a cassette from the radio … HaHa … Catch me now , suckers !!!
May 21st, 2005 at 11:03 pm
Maybe I’ve misinterpreted what I’ve read of the copyright act but isn’t part of a bona fide claim a copyright certificate? CRIA didn’t provide these, hell Media Sentry didn’t even listen to a single file so how can a bona fide claim be made if all they have is geekboy had 325 files? 325 files of what?
May 22nd, 2005 at 2:19 am
Don’t your public libraries have CDs ?
May 22nd, 2005 at 5:14 am
Why can’t the courts (in Canada) throw out these cases by the music industry against up/down-loaders because a legal/financial remedy is ALREADY IN PLACE for them – that being the tax on CD-R disks and related media (tax on mp3 players, etc) ???
May 22nd, 2005 at 10:09 am
I’m not convinced
1) Why the test for “other sources”? [point 2, par.32]. While ISP’s already have broad protections of liability, this will make it even broader. Let’s not forget that the decision by ISP’s not to extend ID’s is just “good marketing” and not in anyway driven by their customers best interest. They could care less. And the same goes for their dislike of “data retention” in the EU. This is just shifting the burden on ordinary webmasters and sites.
2) “must not collect more personal information than necessary” [point 3b, par. 44] That’s nice but an empty demand. Lawyers can argue this either way.
I not convinced that this is “the stiffest privacy test in the world”. The requirements made by the judge are similar to those laid down in Dutch Privacy Code and yet Brein still got permission to collect piracy data.
In addition, the ‘independent’ institution overseeing the Dutch Privacy Code demands subjects to be notified of data being gathered and that it be made available to them upon request.
See this: http://www.theregister.co.uk/2005/05/13/dutch_isps_fight_back/
In short: its too early for ‘Hooray”
May 22nd, 2005 at 8:05 pm
I agree. If I am already presumed to be downloading so am therefore taxed with the levy why is it then not legal to download? They seem to be trying to have it both ways.
May 22nd, 2005 at 9:46 pm
This is the difference between the “bona fide” and “prima facie” cases. I believe Matthew Skala explained it well at http://ansuz.sooke.bc.ca/lawpoli/cases/bmgvdoe/appeal-decision.php
“Digging around in Wikipedia, it becomes apparent that a bona fide case is a case in good faith. To meet this test, the labels have to show that they really believe (even if they might be wrong) that the Does are infringing copyright. It seems easy for them to prove that they believe that. The prima facie case is a much stronger case, and therefore much harder to establish; basically, that would be one where it’s obvious at a glance that the Does are infringing copyright. So as far as the lower court was concerned, the labels would have to prove that it’s obvious to anyone who isn’t an idiot that the Does are infringing copyright; under the appeals court’s test, they merely have to show that they themselves believe the Does are infringing copyright, even if a non-idiot, or even all non-idiots, might think otherwise.”
With the bona fide case they just have to explain why CRIA believes that these Does are infringing, not provide evidence such as a certificate from registering copyright (not needed to sue, but helpful).
As to my other question: I asked it in the Digital Copyright Canada forum and others suggested that proving that CRIA was not acting in good faith would be hard. Settling out of court is part of the goals of civil suites, so would not be considered unusual even if unfortunate from a public policy (creating certainty) point of view.
Expect to see a lot more legal analysis. As an example, Matthew and I read the original case handed down by Justice Konrad von Finckenstein very differently. Neither of us are lawyers, but are technical consultants who read these cases and interpret them using our (software) code-reading skills.
May 22nd, 2005 at 9:53 pm
I recommend people read the cases, or a summary they trust. Also talk to a technical person if you are not familiar with some of the details of the software (sending/receiving, putting something in your “shared” folder, etc)
My summary (as a technical person who read the original decision) is at http://p2pnet.net/story/4584 Note the 3 different parts. Downloading for PERSONAL/private use is not considered an infringement, and that is because the levy is paid on blank media. Sharing/uploading/sending (whatever term you want to use) is a totally separate issue — as soon as the file is sent by you to someone else, that is no longer personal/private use and thus is not covered by the levy system.
May 22nd, 2005 at 10:44 pm
Big music’s “defeat” is only temporary… with the passage of new legeslation in the States, mostly dealing with bit-torrent and movie downloading, the Canadian government is now under extreme pressure to pass legeslation that will also effectively shut down most peer to peer file swapping.
If you don’t have it, get it now because in a year or so I can almost guarantee you’ll be jailbait if you try fileswapping …or even be in posession of swapped/shared copyright.
The Canadian Government will be dancing to the tune of Uncle Sam on this one.
Big music is bound and determined to maintain their broken but profitable business model on distribution of music and movies… the deals have been made…thick brown envelopes have been passed under the table and the we the suckers will pay and pay and pay for the countless re-releaases of Celine Dione et all.
May 23rd, 2005 at 6:47 pm
First, my compliments on your website and the up-to-date news and information. I’ve been a reader now for about six months.
I also enjoyed this particular article by David Fewer, who notes that the Federal Court of Appeal, in regards to the copyright issues, in no way directed an alternative conclusion to that reached by Justice von Finckenstein.
Althought that is true, a careful read of the decision will show that the Court of Appeal did provide some additional guidance and clarification as to what acts would or would not constitute infringement.
In particular, the Court of Appeal noted that ââ¦if the users were not using an âaudio recording mediumâ, the defence of private copying would not be availableâ. It also cited a previous decision wherein it ruled that a digital audio recorder (i.e. an MP3 player) is not such a medium. See my own blog posting of May 22nd for more details and citations at: http://www.gelsing.ca/blog/?p=66
Whether a computer hard-drive (in a p2p situation) falls under the definition of âaudio recording mediumâ, and thus under the private copying exemption, seems to me to be an undecided issue as well – and the Court of Appeal certainly did not address that in this case. But perhaps that is what Graham Henderson was aiming at when he mentioned “it’s illegal”.
Clearly the broad statement that âThe judge has determined that uploading, downloading, itâs illegal.â was incorrect. Legality or illegality depends on the facts in each particular case (e.g. what content was uploaded or downloaded and onto what medium).
Anybody have any thoughts on whether a hard-drive falls under the definition of “audio recording medium”? If not, then, according to the Court of Appeal, the defence of private copying would not be available. As far as I know hard-drives are not levied, but maybe I’m missing something here.
– Sander Gelsing
http://www.gelsing.ca/blog
May 24th, 2005 at 5:18 am
HD’s aren’t levied, but sheesh, how could you not call them a “recording medium”?
It’s just a different form of digital (vice analogue) magnetic recording. In this case, on platters, vice, oh, say.. cassettes? Or DVD’s? Or CD’s? or DAT’s?
Sheesh. Any good lawyer would rip that silliness to shreds.
It’s more a question of wether anyone will actually pay up for a good lawyer when they get dragged into court!!!
May 24th, 2005 at 5:26 am
Because Canada is the land of the “please tax me some more, cuz i’m a dumb ass and voted liberal” hippy-dippy’s.
I mean really, most SANE people would be livid at the tax regime in Canada, but instead, they just grumble and then actually LISTEN to the lies, lies and damned lies that the CRIMINAL (money laundering adscam anyone? sheesh. the mob is better) liberal party spews forth about their competition, namely the CONSERVATIVE party, who would rather we have lower taxes and medicare competition, albeit publicly funded. (where exactly was your last xray or ultrasound? other lab work? ya, I figured, private clinics).
Anyway, my guess is this will play out like so: You will need to pay the CRIA for your downloads, somehow, and the government will get a portion of that.
Oh, and they will NOT remove the taxes on media.
It’s Canada. Sheesh. Land of the over-taxed-and-too-lame-to-fight-it.
May 24th, 2005 at 5:31 am
I said it before, I’ll say it again….
Just call it the “American Copyright Scheme to Sue Music Lovers” and Canadians will vote for whatever party hates the Americans the most. Well, so long as they aren’t Conservative or Socialist. lol.
One thing Canuks hate more than anything else, is thinking that they are so much like America that we’d watch their TV, drive their cars, eat at their restaurants, shop in their stores… oh, wait, bad examples.
If they put a big Wal-Mart is a US company on it, they’d go out of business in a day… Instead, wal-mart couches it’s marketing in half-assed “canadianisms” (a few flags, here/there, but not enough to shock canadians who aren’t really loyal or proud anyway) and they are happy enough to pretend they aren’t sending their $$$$ to US multicorp.
Yep. Just call it an americanisation, an american law… better yet, somehow find a way to blame George Bush for all this, and they’ll drop it in a heart beat. Hmmmm can we blame this for iraq?
May 24th, 2005 at 6:27 pm
The question isn’t whether it is “recording medium” but “audio recording medium” – emphasis on “audio”.
In the 2003 Copyright Board decision, the Board held that DVD’s and micro-hard drives were NOT “audio recording medium” – because they were not ordinarily used by individuals for the purpose of copying music. Such media is still “recording media”, and is used for storing other data (movies, images, word processing files, etc.) in addition to audio data.
The Board also refused to get into the question about memory in computers and whether a hard-drive is an “audio recording medium” (mainly because it wasn’t asked to decide the levy on such memory) – see page 46 of that decision.
So at least at this point in time, and as far as I know, there isn’t a clear legal authority (whether Copyright Board or Federal Court of Appeal) to provide guidance on this issue of whether a hard-drive is an “audio recording medium”.
Arguably hard-drives are, these days at least, ordinarily used by individuals for the purpose of copying music, especially in a p2p situation and when ripping and burning CD’s. Most new computer operating systems come with software functionality to rip and burn CD’s and store compressed audio recordings on one’s hard-drive for subsequent playback (e.g. Windows Media Player). Furthermore, hard-drives, unlike MP3 players, do appear to have a “media” element to them – they are capable of being swapped or added to a desk-top computer. External hard-drives are also readily available and function to expand one’s storage capacity.
However, at the same time, a not unreasonable argument could also be made that a hard-drive is not an “audio recording medium”, because it is not ordinarily used to copy music (but rather to run and store programs and non-music data) and that is more akin to micro hard-drives.
- Sander Gelsing
http://www.gelsing.ca/blog
May 25th, 2005 at 7:49 pm
U sound american to me, Tax is hardly the enemy, helping redistribution of money to the poor. All very well for u to complain about high taxation, but what about those who cant go to hospital in america cos theyre too poor, and that in the worlds richest country.
I think a levy on media is fair, altho they cant sue u after aswell
Sane people, of which there are few, are not averse to tax and understand why we pay it. Greedy americans do not. Altho the government is far from perfect, most of the money paid in tax does go where it should and help the less fortunate.
U must b really stupid if u think the government really swallows all that money, and if u think canada is highly taxed, try europe mate!
(on a side note, america has low taxes, but cant balance its books, over $400 billion dollar deficit and still cutting taxes?)
June 1st, 2005 at 5:11 am
If uploading is illegal (or otherwise against the law), then there really can’t be any downloading (P2P that is).
Again, the tax on CD-R’s and related media is disengenuous.
If they can go after and prosecute or sue one-half of the equation (ie the uploader) then it doesn’t matter that DL’ing is legal.
Look. If the tax on media is to compensate for downloading, then you are giving tacit approval for downloading. To be able to download, someone has to upload. If you say that uploading is not allowed, then how can you download?
This is like saying that if I get caught (in the act) stealing something (say, a TV) then I can be charged. But if I’m found to have the TV at my house (ie if I’m in possession of stolen property) then I’m ok because possession is not against the law.
Another analogy is that taxing recordable media is like taxing prostitution. It may be legal (and hence taxible) for a hooker to have sex with you, but it’s illegal for you to have sex with a hooker (the hooker being the downloader and the john being the uploader).
If the music industry gets their way and takes a bunch of Canadian’s to court because they were uploaders, and if that puts a chill into P2P and there are no more Canadian uploaders, then will the gov’t remove the tax on recordable media? After all, there would be no justification for having it in that case.