Murray
Well-Known Member
Music fans win in court
Gillian Shaw
CanWest News Service
Thursday, April 01, 2004
Canadian Internet music fans can breathe a sigh of relief after a Federal Court decision Wednesday that will protect them from the prying eyes of the Canadian Recording Industry Association.
Justice Konrad von Finckenstein ruled that the association did not prove there was copyright infringement by 29 John and Jane Does, so-called music uploaders who the industry alleges are high-volume music traders.
The decision means that Internet service providers (ISPs) won't have to hand over the users' names, a prospect that had sent a chill through the file sharing community.
It was more bad news for the recording industry that was scrambling to denounce a study released on the eve of the court decision by researchers at Harvard University and the University of North Carolina which found, contrary to industry claims, that online file sharing isn't responsible for the decline in CD sales.
"This makes it open season on any intellectual property product," said one music industry insider. "Every single person who works for a record company should be concerned about their job after this ruling."
The Canadian music industry says that sharing of music files on peer-to-peer services like Kazaa has cost the industry $400 million in lost sales and resulted in a 20-per-cent cut to its workforce.
"To be told that we have no copyright protection on the Internet is just madness, total madness," said Brian Robertson, president of the industry association. "It's a case in which we felt we filed more than adequate evidence of widespread copyright infringement and we feel totally secure in what we presented," he said.
In what analysts termed a stunning decision, Finckenstein ruled that file sharing -- the uploading and downloading of files over the Internet -- is not illegal under Canadian copyright law, reaffirming what the Copyright Board of Canada has already determined.
The decision was cheered by technology and privacy advocates alike.
"It's not just a victory for file shares, it is a victory for technology itself and for Internet users in Canada," said Howard Knopf, a lawyer with the Ottawa firm Macera and Jarzyna, the lawyer representing the Canadian Internet Policy and Public Internet Clinic. "It is a victory for anybody who does research, who is interested in innovation, education -- anything where file sharing might play a role."
The court decision puts an immediate block to plans announced Tuesday by the International Federation of the Phonographic Industry, the recording industry umbrella organization, to take its fight against file sharing to several countries, including Canada. The IFPI said 247 file sharers worldwide would be targeted with lawsuits.
The IFPI, based in England, was not available to comment on whether it is changing its plans since file sharing has been ruled legal in Canada.
CRIA vowed to continue fighting what it calls the "widespread infringement of music copyright on the Internet" and the association's general counsel Richard Pfohl said an appeal is likely.
"In our view, the copyright law in Canada does not allow people to put hundreds or thousands of music files on the Internet for copying, transmission and distribution to millions of strangers," he said in a prepared statement.
"We put forward a compelling case of copyright infringement in seeking these disclosure orders. We presented more initial evidence than has ever been put forward in a request for disclosure of user identities from ISPs -- which Canadian courts have granted on numerous occasions."
The CIRA motions filed Feb. 11, if granted, would have required Bell/Sympatico, Rogers Communications, Shaw Communications, Telus Corp. and Videotron Telecom to reveal the identities of subscribers who it alleged were sharing music on a large scale.
Calling the decision "stunning," Michael Geist -- a professor at the University of Ottawa specializing in Internet and e-commerce law, and technology counsel with the law firm Osler, Hoskin and Harcourt -- said he anticipates it will push the industry to increase its lobbying efforts for legislative change to copyright laws
"Certainly the copyright aspects of this decision came as a bit of a surprise to a lot of people," he said.
Geist said there were questions about the evidence advanced by the recording industry and he said weaknesses in the evidence were pointed out by the judge.
The recording industry was seeking to tie IP (Internet Protocol) addresses and names, a method that wouldn't necessarily make a correct identification of people who are heavy file sharing users.
"You're not necessarily talking about a single person, or the same person," said Geist.
Knopf agreed.
"If you're living in an apartment building and have WIFI network and you're not very careful about how you set it up, you could be sharing your network with 300 your friends and neighbours," he said, adding the user wouldn't necessarily know if someone was engaged in extensive file sharing using the same IP address.
Geist pointed out that the ruling could have simply stopped with that issue.
"The judge could have ruled on this alone but he went much further," he said.
The ruling dealt with the issue of privacy and striking a balance between privacy and the right of copyright holders and also agreed with the ISPs' contention that they should be compensated for the cost of complying with the motion were it to go through.
However, the overriding issue saw the court rule there is no infringement of copyright in the file sharing practice.
"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings," Von Finckenstein wrote in his 28-page ruling. "They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service."
He compared the action to a photocopy machine in a library.
"I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service," he wrote.
Officials at Kazaa were pleased with the ruling.
"We welcome today's ruling as a win for peer-to-peer technology and its users," Nikki Hemming, chief executive officer at Sharman Networks, the Australia-based company that operates Kazaa, said in a statement. "We hope that this decision marks a turning point away from litigation and towards co-operation between peer-to-peer providers and the entertainment industry."
Peter Bissonnette, president of Shaw Communications, whose company had vowed to protect the privacy of its subscribers, was thrilled by the ruling.
"As you can well imagine we're delighted at Shaw."
© Copyright 2004 The Leader-Post (Regina)
Gillian Shaw
CanWest News Service
Thursday, April 01, 2004
Canadian Internet music fans can breathe a sigh of relief after a Federal Court decision Wednesday that will protect them from the prying eyes of the Canadian Recording Industry Association.
Justice Konrad von Finckenstein ruled that the association did not prove there was copyright infringement by 29 John and Jane Does, so-called music uploaders who the industry alleges are high-volume music traders.
The decision means that Internet service providers (ISPs) won't have to hand over the users' names, a prospect that had sent a chill through the file sharing community.
It was more bad news for the recording industry that was scrambling to denounce a study released on the eve of the court decision by researchers at Harvard University and the University of North Carolina which found, contrary to industry claims, that online file sharing isn't responsible for the decline in CD sales.
"This makes it open season on any intellectual property product," said one music industry insider. "Every single person who works for a record company should be concerned about their job after this ruling."
The Canadian music industry says that sharing of music files on peer-to-peer services like Kazaa has cost the industry $400 million in lost sales and resulted in a 20-per-cent cut to its workforce.
"To be told that we have no copyright protection on the Internet is just madness, total madness," said Brian Robertson, president of the industry association. "It's a case in which we felt we filed more than adequate evidence of widespread copyright infringement and we feel totally secure in what we presented," he said.
In what analysts termed a stunning decision, Finckenstein ruled that file sharing -- the uploading and downloading of files over the Internet -- is not illegal under Canadian copyright law, reaffirming what the Copyright Board of Canada has already determined.
The decision was cheered by technology and privacy advocates alike.
"It's not just a victory for file shares, it is a victory for technology itself and for Internet users in Canada," said Howard Knopf, a lawyer with the Ottawa firm Macera and Jarzyna, the lawyer representing the Canadian Internet Policy and Public Internet Clinic. "It is a victory for anybody who does research, who is interested in innovation, education -- anything where file sharing might play a role."
The court decision puts an immediate block to plans announced Tuesday by the International Federation of the Phonographic Industry, the recording industry umbrella organization, to take its fight against file sharing to several countries, including Canada. The IFPI said 247 file sharers worldwide would be targeted with lawsuits.
The IFPI, based in England, was not available to comment on whether it is changing its plans since file sharing has been ruled legal in Canada.
CRIA vowed to continue fighting what it calls the "widespread infringement of music copyright on the Internet" and the association's general counsel Richard Pfohl said an appeal is likely.
"In our view, the copyright law in Canada does not allow people to put hundreds or thousands of music files on the Internet for copying, transmission and distribution to millions of strangers," he said in a prepared statement.
"We put forward a compelling case of copyright infringement in seeking these disclosure orders. We presented more initial evidence than has ever been put forward in a request for disclosure of user identities from ISPs -- which Canadian courts have granted on numerous occasions."
The CIRA motions filed Feb. 11, if granted, would have required Bell/Sympatico, Rogers Communications, Shaw Communications, Telus Corp. and Videotron Telecom to reveal the identities of subscribers who it alleged were sharing music on a large scale.
Calling the decision "stunning," Michael Geist -- a professor at the University of Ottawa specializing in Internet and e-commerce law, and technology counsel with the law firm Osler, Hoskin and Harcourt -- said he anticipates it will push the industry to increase its lobbying efforts for legislative change to copyright laws
"Certainly the copyright aspects of this decision came as a bit of a surprise to a lot of people," he said.
Geist said there were questions about the evidence advanced by the recording industry and he said weaknesses in the evidence were pointed out by the judge.
The recording industry was seeking to tie IP (Internet Protocol) addresses and names, a method that wouldn't necessarily make a correct identification of people who are heavy file sharing users.
"You're not necessarily talking about a single person, or the same person," said Geist.
Knopf agreed.
"If you're living in an apartment building and have WIFI network and you're not very careful about how you set it up, you could be sharing your network with 300 your friends and neighbours," he said, adding the user wouldn't necessarily know if someone was engaged in extensive file sharing using the same IP address.
Geist pointed out that the ruling could have simply stopped with that issue.
"The judge could have ruled on this alone but he went much further," he said.
The ruling dealt with the issue of privacy and striking a balance between privacy and the right of copyright holders and also agreed with the ISPs' contention that they should be compensated for the cost of complying with the motion were it to go through.
However, the overriding issue saw the court rule there is no infringement of copyright in the file sharing practice.
"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings," Von Finckenstein wrote in his 28-page ruling. "They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service."
He compared the action to a photocopy machine in a library.
"I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service," he wrote.
Officials at Kazaa were pleased with the ruling.
"We welcome today's ruling as a win for peer-to-peer technology and its users," Nikki Hemming, chief executive officer at Sharman Networks, the Australia-based company that operates Kazaa, said in a statement. "We hope that this decision marks a turning point away from litigation and towards co-operation between peer-to-peer providers and the entertainment industry."
Peter Bissonnette, president of Shaw Communications, whose company had vowed to protect the privacy of its subscribers, was thrilled by the ruling.
"As you can well imagine we're delighted at Shaw."
© Copyright 2004 The Leader-Post (Regina)
