Canadian music biz loses Net appeal
TORONTO (CP) – The music industry lost its quest Thursday to curb online file-sharing when an attempt to smoke out the identities of 29 alleged uploaders was quashed by the Federal Court of Appeal.
Despite losing the case, music makers greeted the ruling with smiles because the court offered them key guidelines for next time. The 27-page decision gives the Canadian Recording Industry Association a roadmap of how to present file-sharing evidence in future attempts to stop rampant music swapping. It also rejected the lower court’s ruling on copyright law, saying the judge was premature in his statements that file-sharing is permissible.
Richard Pfohl, the music industry’s lawyer, went as far as to call Thursday’s decision “a complete success” even though the organization cannot proceed with lawsuits against these 29 people at this time.
“It provides us with a blueprint to proceed,” he said. “We know exactly what we need to do.”
For over a year CRIA has been trying to figure out who’s behind pseudonyms such as Geekboy(at)KaZaA and Jordana(at)KaZaA.
The two are among 29 individuals suspected of collectively making 43,541 songs available to any web surfer for free.
Finding out the identities from Internet service providers, such as Shaw, Rogers and Bell, is a necessary step in order to launch lawsuits against people who use services like Kazaa and IMesh.
Writing on behalf of the three-judge panel, Justice Edgar Sexton said much of the evidence was hearsay posing a risk that “innocent persons might have their privacy invaded and also be named as defendant where it is not warranted.”
The evidence was gathered by workers at New York-based MediaSentry and presented by the company’s president who had only second-hand knowledge of how it was collected. Dating back to late 2003, it was based on screen grabs showing a list of songs placed in a shared folder.
Those representing the public’s interest in the case also called the ruling a victory.
“The decision recognizes and affirms the right of privacy for individual Canadians,” said Howard Knopf, a copyright lawyer with Macera and Jarzyna in Ottawa who represented the public’s interest during the case.
However, Knopf cautioned that a portion of the decision “opens the door to the kind of shock and awe campaign that we’ve seen in the U.S.” because it gives CRIA a chance to come back with better evidence.
Thursday’s decision included several strong statements about the importance of protecting copyright in the online world so that music makers are not “robbed of the fruits of their efforts,” suggesting CRIA should return to court when it has met all the necessary criteria.
Sexton went a step further saying that with proper evidence, musicians “have a right to have the identity revealed for the purpose of bringing action.”
He tempered the statement, saying the courts will still need to make sure “privacy rights are invaded in the most minimal way.”
The decision also refrained from making grand conclusions on copyright laws – specifically about the legality of downloading or uploading music via file-sharing.
At the time of the original ruling, headlines around the world called Canada a haven for pirates because courts couldn’t prosecute due to outdated copyright laws.
Thursday’s ruling strongly stated that the lower court should never have broached the subject of copyright infringement. At the time, Justice Konrad von Finckenstein said that uploading songs to shared folders on a home computer was permissible under law because the songs weren’t actively being distributed to others.
“Conclusions . . . should not have been made in the very preliminary stage of this action,” Sexton said in Thursday’s written decision. “They would require a consideration of the evidence as well as the law applicable to such evidence after it has been properly adduced.”
The industry interpreted the comment as vindication in its battle to thwart online cheaters.
“It makes it harder for people to say ‘Canada is a piracy haven so steal whatever you want to.’ It ought to be a warning sign for people on peer-to-peer services that you can, and will, be held accountable,” said CRIA’s Pfohl.
How soon remains to be seen as the court system is notoriously slow. As well, government legislation by the Liberals to amend copyright laws in favour of the music industry has been slowly working its way through Parliament.
This case has been closely watched by the TV, film and book publishing industries, which have also been negatively affected by the popularity of peer-to-peer sharing systems.