Cdn file swap case adjourned
p2pnet.net News:- Big Music’s attempt to turn Canadian file swappers into near criminals is “fascinating,” says Justice Konrad von Finckenstein.
With the CRIA (Canadian Recording Industry Association) as a front, the Big Five record labels are demanding that the Federal Court of Canada issues an order to force five Canadian ISPs to hand over the identities of customers it claims are “pirates who have been openly and illegally distributing thousands of digital music files over public networks”.
However, yesterday, von Finckenstein adjourned the proceedings until March 12 because he wanted to know more about the motion’s ‘technical requirements,’ and how it would affect privacy legislation, says the Toronto Star here.
It also quotes von Finckenstein as saying it’s a “fascinating” case, ordering the five ISPs to preserve all related historical customer data.
“Anticipating an adjournment,” the CRIA issued a statement “minutes after the decision” in which CRIA general counsel Richard Pfohl said, “We see this as progress, due legal process that will, in the end, allow us to file suits against flagrant copyright infringers.”
So the case will, eventually, proceed and if the CRIA case succeeds, it will cap off Phase One in record label plan to reduce Canadian file sharers to the status of criminals – as has already happened in America.
The corporate music industry maxim is The Customer is Never Right and the labels want to totally control the way in which music in Canada is sold online, by whom and for how much; and, to crush anything which looks as if it might successfully compete against them and their adherents.
“More than 45,000 individuals are directly or indirectly dependent upon the health of the recording industry in Canada, including those in songwriting, recording studios, manufacturing, retailing, broadcasting, music publishing, concert promotion, management and many other primary and support services,” cries CRIA boss Brian Robertson, replicating the ’starving employee’ theme mooted by MPAA (Motion Picture Association of America) boss Jack Valenti last year.
But, “I hope the court thinks long and very hard before handing over the names and addresses of dozens of individuals who, inevitably, will face horrendous expense and consequences in standing up to these mostly foreign billion-dollar record companies,” Howard Knopf, an Ottawa intellectual property lawyer is quoted as saing in a Toronto Star article here.
“Mostly foreign” refers to the fact the Big Five recording labels which are behind the attempt – Universal, EMI, BMG, Warner and Sony – control the major labels. They also own the CRIA and RIAA, despite the ‘Canadian’ and ‘America’ in the titles.
Legal in Canada
It’s legal to download music in Canada, as long as it’s for personal use and, “Whether uploading or file-sharing is generally illegal is not clear in Canada, and in particular cases there may be very good defences,” says Knoph in the Star report.
The CRIA has characterised the 29 people it wants to identify as “high-volume” file sharers – which is how the RIAA started its US sue ‘em all campaign, eventually turning its attention to indviduals, including children and elderly people.
But as Shaw, one of the ISPs on the sharp end of the court case asks in the Star story, how does CRIA know the people it’s picked out are high-volume uploaders?
“All CRIA has done is identify 29 ‘IP addresses’ assigned to computers that demonstrate high-volume activity,” it says, going on, “Shaw says IP addresses are regularly reassigned to computers using its network, so there’s no guarantee that the subscriber associated with one IP address is the egregious uploader CRIA is really after.”
But it doesn’t really matter.
Canadians use the Net far more than Americans and they’re well aware of Big Music’s activities in the States where, despite the fact it’s sued, or wants to sue, close to 1,000 people in civil actions, not one case has been heard.
Every one of Big Music’s American victims has settled out of court, usually for amounts around $US3,000, rather than risk the much heavier financial penalties they would have incurred if they’d gone up against the highly paid, expert music industry legal teams, and lost.
With an estimated 60 million online music lovers in the US, 1,000 amounts to nothing.
However, with a multi-million-dollar Big Music PR campaign and blanket coverage by the mainstream US media behind it, it was enough to enable the RIAA to turn file sharing into a major national issue, and to have anyone who downloads music, shares files, swaps music, or whatever you want to call it, permanently branded as a criminal, a tactic the CRIA is already trying to emulate.
Sharing music isn’t a criminal act and yet, “We are following the standard due process requirements of the law to identify lawbreakers,” says the CRIA’s American general counsel Richard Pfohl, going on, “Lawbreakers cannot expect to hide behind a mask of anonymity.”
He also says ISPs are “routinely required to disclose customer information pursuant to valid court orders. People committing crimes by using a phone or an Internet service cannot remain anonymous and avoid being brought to justice.”
Lawbreakers. “Committing crimes” and “Internet service” in the same sentence. The inferences couldn’t be more obvious.
Coming up …
And if Big Music gets its way and ISPs are compelled to identify customers for the music industry, will Canadian children subsequently end up in music industry inspired product commercials as did children in the US during the Super Bowl?
Then, 16 naive teenagers were ‘persuaded’ by the RIAA to appear in a 45-second spot promoting Pepsi-Cola and Apple’s iTunes online music store.
To make the theme stand up, the message that the kids were ex-criminals who’d been rightfully ‘prosecuted’ had to be driven home hard and therefore, Busted, Charged, Incriminated, and Accused appeared over their images, and the carefully arranged lighting and their sullen looks purposefully suggested a gritty, urban, isolated feel – the kind of thing associated on TV with ‘lawbreakers’ and criminality.”
Busted? When? By whom? And on what criminal charge?
They were, however, certainly incriminated – by the RIAA in front of millions of football fans.
“There’s no calculus of relative harm to justify this kind of abusive, untruthful and cynical behavior towards minors no matter how complicit their misguided parents may have been in this deception,” Josh Wattles, former acting general counsel of Paramount Pictures, told p2pnet.
And yet New York Times business writer Stuart Elliott was able to write that the “stand-out” Pepsi-iTunes Super Bowl commercial was a, “cheeky spot” that “smartly teased the recording industry for suing teenagers for illegal file sharing”.
“Shaw and its willingness to stand up to CRIA may, for its customers anyway, be the only hope,” says the Star. “But if Shaw loses its battle this morning it has every intention of complying with a court order.”
But worse – much worse – is probably on the way for Canadians.
Looming on the horizon is some kind of Hollywood-slash-Canadian Joint Committee of the Higher Education and Entertainment Communities which will allow Big Music to use Canadian schools as primary sales points.
It’s already happening in America where Napster II is now entrenched at Penn State University and the University of Rochester as the first online music ’service to be installed in major US schools. Both schools now offer it as a way to stop students from being sued by the record label owned RIAA.
Now Sony Music wants in with CAN – Campus Action Network
Is this the sort of thing Canadians can look forward to?
February 18th, 2004 at 3:38 pm
gawd , I hope not. I wish Shaw offered broadband here in Toronto rather than that sycophant Rogers. I’d switch in a minute.
March 11th, 2004 at 7:44 pm
I agree with you…I am currently with Sympatico and would definately switch to Shaw if they offered broadband in my area. Its nice to know that there is one ISP who is willing to fight for the privacy of their subscribers.