March 31, 2004 | By Fred von Lohmann

Blame Canada!

A Canadian court today denied the recording industry's effort to force Canadian ISPs to disclose the names of 29 alleged file sharers. This alone is news enough (and thanks are due to CIPPIC and Electronic Frontier Canada for their efforts in the proceeding).

But the court went on to say quite a bit more about file sharing and copyright law in Canada, including:

  • "Downloading a song for personal use does not amount to infringement." We knew this from a previous Canadian ruling.
  • "The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution." Copyright owners do not enjoy a general "make available" right in Canada (yet). This is important because the U.S. Congress is now considering creating a "make available" right in U.S. copyright law.
  • Putting a song in your shared folder is not "authorization" for copying. It is more like a library providing a photocopier--which does not create liability. This draws heavily from another recent Canadian court ruling.
  • Copyright investigators failed to download and verify that the files were what they purported to be. Thus, the conclusions of the investigating company, MediaSentry, were ruled inadmissible to demonstrate the infringement claims. The court was concerned that some of the files might have been spoofs distributed by the copyright owners themselves.
  • ISPs must have their costs covered if they are to respond to CRIA subpoenas. Also, the ISPs will not be required to create new records, including records that associate IP addresses with identities, that they were not already keeping in the regular course of business. Another reason to favor less logging and rapid log purging.
  • CRIA waited too long, since it gathered the evidence in late 2003 and didn't bring the cases until February 2004. The court found that since older information is more difficult to retrieve, more unreliable and may even make linking IP addresses to account holders impossible, privacy should trump.

Here's hoping that an American court has an opportunity to address some of these questions in detail, and arrives at the same conclusions.


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