MESSAGE
| DATE | 2004-04-06 |
| FROM | Michael Richardson
|
| SUBJECT | Subject: [hangout] FW: [DMCA_Discuss] It's official: File sharing is legal in Canad
|
--
"In The Business World
An Executive Knows Something About Everything,
A Technician Knows Everything About Something,
And the Switchboard Operator Knows Everything."
No one person is smarter than their team!
> -----Original Message-----
> From: Mike Richardson - NYLXS PRESIDENT [mailto:miker-at-mrbrklyn.com]
> Sent: Monday, April 05, 2004 8:29 PM
> To: mrichardson-at-abc.state.ny.us
> Subject: [DMCA_Discuss] It's official: File sharing is legal in Canada,
> by Milana Homsi [ip] (fwd)
>
>
>
> ---------- Forwarded message ----------
> Date: Wed, 31 Mar 2004 19:13:26 -0800
> From: Jon O.
> To: dmca_discuss-at-lists.microshaft.org
> Subject: [DMCA_Discuss] It's official: File sharing is legal in Canada,
> by Milana Homsi [ip]
>
> ----- Forwarded message from Declan McCullagh -----
>
> -------- Original Message --------
> Subject: Canada does it again- Filesharing is now officially legal!
> Date: Wed, 31 Mar 2004 19:59:27 -0500
> From: Milana Homsi
> To: 'Declan McCullagh'
>
>
> Declan,
>
> I thought fellow Politech subscribers would be interested in today's
> victory against the Canadian Recording Industry Association (CRIA - The
> RIAA's Canadian cousin). A federal court decision denied a motion by
> CRIA to disclose the identities ISP subscribers who allegedly shared
> copyrighted files on Kazaa. Most importantly, the court also held that
> sharing files using a P2P service is apparently legal in Canada - one
> reason being that having facilities "that allow copying does not amount
> to authorizing infringement".
>
> According to news reports, CRIA plans to appeal. See
> http://www.globeandmail.com/servlet/story/RTGAM.20040331.wdownload0331/B
> NStory/Business/
>
> Following is a brief summary of this very interesting decision. The
> full 30 page decision is available at
> http://www.fct-cf.gc.ca/bulletins/whatsnew/T-292-04.pdf. The case name
> is BMG Canada Inc.v. Jane Doe (2004 FC 488).
>
> [It should be noted that ISP subscribers have an expectation of privacy
> based on Canada's privacy act (PIPEDA). Identities can only be
> disclosed without consent by a court order - in contrast to the simple
> subpoena signed by a court clerk that is sufficient in the U.S.]
>
> *The court held that in order to disclose the identity of the
> subscribers the applicant must (amongst other criteria) establish a
> prima facie case against the subscribers and show that the public
> interest favour disclosure over the subscriber's privacy concerns.
>
> **As to the prima facie case against the subscribers:
>
> (1) The court found much fault with the activities of Mediasentry, the
> anti-piracy company hired by CRIA to gather evidence on file-sharers:
>
> (a) The court concluded that the sworn testimony about the file sharing
> activities of the defendants was hearsay. This is because it was the
> president of the company who testified about the file-sharing activities
> of the defendants, not the employees who actually gathered the evidence.
> This was insufficient in the court's view as the president did not have
> personal knowledge of the file-sharing activities.
>
> (b)As well, the court found that the fact that the "infringing files"
> that had been copied from the defendants had not been listened to by
> MediaSentry employees, so there was no way of actually ascertaining
> whether they were decoys or infringing material.
>
> (c)The court found that there was no evidence explaining the link
> between the pseudonyms on Kazaa and the IP addresses of the defendants.
>
> (2) The court found no evidence of copyright infringement through the
> downloading or filesharing of music files because:
>
> (a) The December 2003 decision by the Copyright Board held that
> downloading a song is legal.
>
> (b) There was no evidence that the defendants actually distributed music
> files. Rather they "merely placed personal copies into their shared
> directories which were accessible to other computer user[s] via P2P" [at
> 26]. Distributing files would necessitate an additional step by the
> owner of the directory (such as emailing copies of the file to someone).
>
> (c) Having facilities "that allow copying does not amount to authorizing
> infringement" according to recent Canadian case law (CCH Canada v. Law
> Society of Canada, 2004 SCC 13 - held that a library that allows copying
> does not mean it authorizes infringement).
>
> (d) The court acknowleges that the exclusive right "to make available"
> is part of the WIPO treaty, but because that treaty has not yet been
> implemented in Canada, it is not the law.
>
> **As to whether the public interests favour disclosure over the
> subscriber's privacy concerns:
>
> (1) The court notes that the protection of privacy "is of utmost
> importance to Canadian Society". This has been recognized through the
> enactment of Canada's privacy law which protects an individual's
> personal information.
>
> (2) The reliability of the information to be disclosed is paramount.
> The court has concerns about the reliability of any disclosure of
> subscriber identities because of the reasons set out above and because
> the time lag between when the evidence was gathered (fall 2003) and
> filed (feb 2004) meant that data from ISPs was less reliable.
>
> -
>
> The Canadian Internet Policy and Public Interest Clinic (CIPPIC -
> www.cippic.ca) which is based at the University of Ottawa Law School was
> granted intervenor status in this case and did a great job of arguing on
> behalf of the defendants. CIPPIC's excellent brief is available here
> (http://www.cippic.ca/uploads/images/48/Memorandum_final_12pt.pdf).
> Further information about the case is available at CanFLI
> (www.canfli.org) a law student initiative that provides information for
> Canadian file-sharers.
>
>
> Milana
>
> ---------------------------------------
> Milana Homsi
> University of Ottawa Faculty of Law, 3L
> ----- End forwarded message -----
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