Downloading in Canada: the fallacy
p2pnet.net News View:- While I’ve written about it in the past, the fact the media and others are still publishing the fiction promoted by the major labels suggests it’s worth reminding people of the legality of unauthorized p2p sharing of music in Canada.
Many believe unauthorized p2p of music it is perfectly legal in Canada.
In fact, the industry is promoting this fiction in the hopes of using it in their lobbying efforts to get the Canadian government to implement the 1996 WIPO anti-Internet treaties.
The more people believe this falsehood, the stronger CRIA’s case will be in front of parliament.
The fiction is based on a misrepresentation of the federal cases from 2004 and 2005, namely BMG Canada Inc v John Doe (F.C.), [2004] 3 F.C. 241, 2004 FC 488 (CanLII) and the Federal Court of Appeals decision BMG Canada Inc v John Doe (F.C.A.).
The short-form of these cases isn’t that unauthorized sharing is legal, but that the recording industry didn’t provide adequate evidence that there was infringing activity.
The logs were stale, they didn’t download and listen to any songs to indicate who the copyright holders were, and they provided nothing that would differentiate the files shared with the various decoys the industry had been sending out itself.
Both courts wrote about what they felt should be considered adequate evidence to allow (and force) ISPs to disclose the names of the customers associated with the IP addresses, something the ISPs couldn’t do without a court order because of the protections offered by our more robust privacy legislation.
And it’s this discussion of the level of evidence required that often confuses people, when in fact the only relevant issue that caused the industry to be denied names was a lack of evidence.
If the recording industry had provided even the most basic evidence, the case would have moved forward. While there are multiple legal theories to explain what p2p is as it relates to copyright law, none suggest unauthorized sharing of music is legal in Canada. The private copying regime protects Canadians for private copying (while compensating copyright holders the way they are for radio and cable television), but the law explicitly indicates that the copy is not private if it is shared with other people.
Canadian law differs from US laws in this case in two important ways: our private copying regime and our advanced privacy laws. The first says the unauthorized keeping of private copies of recorded music isn’t an infringement, regardless of the source, as long as it isn’t further shared or distributed. Our privacy laws requires that a court order be issued before the names of customers attached to Internet addresses be disclosed. Our privacy law ended up requiring that the major labels provide evidence before they were able to get names, exposing their lack of evidence before they could terrorize potential defendants into paying protection money to settle out of court.
It’s also important to remember the major labels haven’t won any more *copyright* cases in the courts in the USA with their no-evidence than they have in Canada.
In fact, to my knowledge, the major labels haven’t won a single case in any country against people alleged to have infringed music copyright via p2p.
But faced with the prospect of high court fees and statutory damages, even people who have never heard of p2p and who’ve never even owned a computer feel forced to pay the protection money.
While I don’t believe people should be breaking the law and should instead be fighting to fix it (implementing a voluntary collective license for recorded entertainment), I feel even more strongly that the industry shouldn’t be getting away with falsely accusing people of an unlawful activity without being required to gather the simplest of evidence.
I believe the recording industry is engaged in the far more harmful activity than even their worst fictions of copyright infringement.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He's also the CLUE policy coordinator.]
p2pnet newsfeeds for your site.
rss feed: http://p2pnet.net/p2p.rss
Mobile – http://p2pnet.net/index-wml.php
August 16th, 2006 at 5:39 pm
Hi,
I’m no legal guru, but from what i have previously read, I understood it as:
1) there was a lack of evidence
2) its still in appeal
3) uploading or opening a share folder in order for other to take it from you is against the law.
4) having reasonable doubt that the person didn’t have the tech knowledge/know how to close a share folder (for p2p sharing), as many p2p programs open by default, can in itself safe-gaurd the grandmothers/11-yr olds in Canada from lawsuite.
5) opening a share folder and altering it for access indicates know-how which can lead to prosecution.
6) ftp uploading (distribution) will get you nailed (the Patel case and his ring sites)
7) ftp downloading or p2p downloading (no share, no uploading) is a grey area of canadian law, but a judge ruled that since we pay a tax on blank media this in turn pays the organization (ie riaa/artist) and the person can’t be prosecuted.
I understood it all when it happened a few years ago to be simpley this. You can and will be prosecuted for uploading (or p2p sharing). Upload share must be off.
August 16th, 2006 at 7:11 pm
I am also not a lawyer, but do hang around with many and have had my legal opinions confirmed by many copyright lawyers.
1) Correct
2) I was not aware that there was any plan to bring it to the Supreme Court. CRIA came out of the federal appeals case (the 2′nd case) stating that they then had a “roadmap” for moving forward. They didn’t actually move forward (launch a new case with a shred of evidence), and I believe that they are delaying because the misinformation about the federal appeals court case is helping their lobbying efforts.
3) Unauthorized sharing would be infringing. We need to always be clear that using P2P is not itself against the law, given there are many many non-infringing uses given the vast majority of human knowledge (The entire public domain, all information authorized by the copyright holder to be shared) is perfectly legal to share via P2P.
4) This is very debatable whether “ignorance of technology” will be considered a defence, and will IMHO depend on the moods of the judge. Ignorance of the law isn’t a defence, and neither is a type of defence I would want to rely on.
My guess is that a judge will be influenced by all the nonsense hysteria that the industry has been flooding the public, and the judge will be less likely to accept these types of defences. Remember that P2P software is not pre-installed on peoples computers, so when a consumer chooses defective software (Such as Kazaa which was well known to contain Spyware) then they are legitimately assumed to have been knowledgeable enough to know what the software was advertised to do.
Remember the Grokster case in the USA where how a tool is advertised matters whether the intermediary or only the users would be considered liable. If a P2P author is clear about what their software does, and a user installs and uses the software anyway, then the user will be entirely responsible for any infringing activity.
If the user isn’t responsible due to misinformation from the author of the software, then the author of the software would be liable. Liability for infringing activity doesn’t just “disappear”.
5) Why would “opening” a shared folder indicate knowledge of the workings of the software, but installing the software in the first place wouldn’t? I have a hard time differentiating these two activities as far as awareness of the software is concerned. I think if anything the action of installing the software will be taken as an expectation that the person knew what the software was intended to do.
In the case of the most popular P2P application, BitTorrent, there is no concept of a “shared folder” and parts of every file you download is automatically shared as part of the process. If you are not authorized to share a music file then you cannot use BitTorrent as there is no non-sharing mode I’m aware of.
6) While there are many people wanting to differentiate different Internet protocols into being treated differently under copyright law, I’m sceptical that a judge will operate at such a detailed level. Most of the people I have heard this type of thinking from wouldn’t ever be in the courtroom, and a judge would not likely ever hear the argument anyway.
The point is not what Internet port the bits were addressed to, or whether the file was encrypted or compressed, but whether an entire file, or parts of a file, were being sent to someone else without authorization of the copyright holder.
7) I don’t think this is a grey area at all, but quite a clear area. Making private copies of audio recordings is not an infringement of copyright. It doesn’t apply to anything other than audio recordings (IE: not movies, television, software, or anything else), and it does not apply when that copy is shared with anyone else in any way.
You can read the details in the copyright act itself:
http://laws.justice.gc.ca/en/C-42/230711.html#Section-80
Unlike many other aspects of the Canadian Copyright act, I consider this section to be pretty clear and plain language.
“80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer’s performance of a musical work embodied in a sound recording, or
(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied
onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.
(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):
(a) selling or renting out, or by way of trade exposing or offering for sale or rental;
(b) distributing, whether or not for the purpose of trade;
(c) communicating to the public by telecommunication; or
(d) performing, or causing to be performed, in public.”
Note: We don’t know if P2P will be considered a “distribution” or a “communicating to the public by telecommunication”, but we know with as much certainty that you can ever know about the law that it will be one of the two.
August 17th, 2006 at 5:03 pm
Wow, great job at clarifying this. Thanks so much. I hope the Canadian judges are reading all this.