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Music labels tell appeal court Kazaa users can’t hide behind anonymity of Web
TORONTO (CP) – The fight to curb file-swapping by music fans moved to the Federal Court of Appeal on Wednesday with record labels arguing song pirates can’t hide behind the veil of their Internet service providers.
The Canadian Recording Industry Association is seeking the identities of 29 Jane and John Does, who are currently only known by pseudonyms like Geekboy and Jordana.
The group wants the court to force Internet providers, including Shaw, Bell and Rogers, to hand over alleged infringers’ real names based on an IP address that made hundreds of music files available on peer-to-peer networks Kazaa and IMesh.
A ruling in favour of the music industry could mean the beginning of U.S.-style downloading lawsuits in Canada.
The first of two days in front of a three-judge panel had lawyers for the music industry debating the fine points of privacy and disclosure law.
Harry Radomski, a lawyer for the association, said evidence presented during the original hearing showed someone at each of the 29 IP addresses moved a large number of songs into shared directories to “make them available to an unbelievable number of people.”
At issue is whether the surfers are entitled to keep their anonymity using existing privacy laws. Internet companies must keep their customer files sealed unless ordered otherwise by a court.
Radomski also argued that when consumers sign up with an ISP they sign contracts “agreeing not to receive or transmit copyrighted material.”
When contracts are broken, consumers no longer expect to be protected by privacy laws, he told the court.
Four Internet service providers are arguing against revealing the identities.
“Our participation in this appeal is to ensure that the rights of our customers are respected and that any order that’s issued is granted on the basis of a solid case,” said Jay Thomson, the lawyer representing Telus.
Quebec’s Videotron has backed the record industry.
The case generated plenty of buzz last year after the lower court judge dismissed the motion to reveal the names, saying the record industry didn’t have enough evidence proving they were doing anything illegal.
The ruling stated that placing a song in a shared directory wasn’t a strong enough action to constitute copyright infringement.
That meant using peer-to-peer networks to nab music for free wasn’t illegal in the eyes of the court, despite the music industry shouting otherwise.
A major spike in the amount of music piracy followed last year’s ruling, admitted Graham Henderson, president of CRIA, outside court during a break Wednesday.
While he’s risking another spike should CRIA lose this appeal, Henderson says establishing clarity in the law is more important.
“We have to try to get clear laws so that Canadians know what’s right and what’s wrong,” he said, adding that an estimated 134 million songs are illegally acquired each month in Canada compared to one million paid ones via online stores like ITunes.
Last year’s ruling prompted Prime Minister Paul Martin to take note of the issue and push forward copyright reform, added Henderson.
The bill – which would add a “making available” clause to the current rules – is working its way through government although a June election would kill it from the queue.
That makes winning this appeal all the more vital, says Henderson.
“We can’t necessarily stand around and wait for that bill to become law because it’s already taken us seven years to come this far,” he said. “If the government calls a snap election it would set us back by several months.”
The case is being watched closely by the film and television sectors who claim people are illegally accessing their products using newer and faster peer-to-peer services like BitTorrent.
Representatives from the film industry asked to speak at this appeal but were denied because the group hadn’t been part of the original case.
A ruling is expected later in the summer.