March 31, 2004 11:33 AM PST
Judge: File sharing legal in Canada
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Canadian record labels had asked the court for authorization to identify 29 alleged file swappers in that country, in preparation for suing them for copyright infringement, much as the Recording Industry Association of America (RIAA) has sued more than 1500 people in America.
But the judge denied that request. In a far-ranging decision, the court further found that both downloading music and putting it in a shared folder available to other people online appeared to be legal in Canada.
What's new:
A judge in Canada rules that sharing copyrighted works on peer-to-peer networks is legal, a major setback to the record industry.
Bottom line:
The ruling affects only Canada, but it could have wider repercussions if it stands. The recording industry has filed hundreds of lawsuits against file swappers to lessen the amount of copyrighted material on networks such as Kazaa and Morpheus.
The Canadian Recording Industry Association (CRIA), which brought the case, said it did not agree with the judge's ruling.
"We are reviewing the decision received today from the trial court and expect to appeal it," CRIA General Counsel Richard Pfohl said in a statement. "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."
The ruling affects only Canada, but it could have wider repercussions if it stands. The U.S.-based RIAA has filed hundreds of lawsuits against file swappers in hopes of lessening the amount of copyrighted material available for download through peer-to-peer networks such as Kazaa or Morpheus.
But many studies, including one this week from professors at Harvard and the University of North Carolina at Chapel Hill, have noted that computer users on peer-to-peer networks often download material across national borders.
Canada's debate over file swapping flared last December, when the country's Copyright Board, which regulates intellectual property issues, ruled that downloading songs from a peer-to-peer network for personal use--but not necessarily uploading--appeared to be legal.
The regulators cited a long-standing rule in Canada, in which most copying for personal use was allowed. To repay artists and record labels for revenue lost by this activity, the government imposes a fee on blank tapes, CDs and even hard disk-based MP3 players such as Apple Computer's iPod, and distributes that revenue to copyright holders.
At the time, CRIA attorneys said they did not agree with the Copyright Board's decision, and that they expected courts to rule differently. Last month, they launched the first step in filing lawsuit against alleged music sharers, seeking authorization from the courts to identify 29 Net users at various Internet service providers (ISPs) around the country.
In his ruling Wednesday, Judge Konrad von Finckenstein rejected that request on several grounds. In part, he said the recording industry had not presented evidence linking the alleged file swapping to the ISP subscribers that was strong enough to warrant breaking through critical privacy protections.
But he also questioned whether CRIA had a copyright case at all.
With respect to downloading, the judge accepted the Copyright Board's early decision almost without comment. But he went further, citing a recent Supreme Court decision to say that making music available online also appeared to be legal.
In that recent case, the Supreme Court ruled that libraries were not "authorizing" copyright infringement simply by putting photocopy machines near books. The libraries were justified in assuming that their customers were using the copiers in a legal manner, the high court ruled.
Finckenstein said the same rationale should apply to peer-to-peer users.
"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," Finckenstein wrote. "Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying."
Ottawa's Geist said this appeared to make uploading itself legal as well, since a peer-to-peer user--like a library--would be entitled to assume that the person on the other side of the connection was acting legally, since downloading was also legal in Canada.
The decision was hailed by Net activists on both sides of the border.
"I think it is a big victory for technology and the Internet and all the people who use technology and the Internet in Canada," said Howard Knopf, an attorney who works with the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. "The court accepted that copyright legislation has to be read as it is, not as CRIA would like it to be."
The decision is likely to spur more legislative action in Canada, however. The country has not yet ratified World Intellectual Property Organization (WIPO) treaties that contain more specific language saying that only copyright holders or their licensees have the ability to make copyrighted works available to others.
In the United States, the provisions of that treaty were implemented in the controversial Digital Millennium Copyright Act. CRIA has lobbied hard to have a similar bill introduced in Canada, but without success yet. However, the Canadian government has recently indicated that a WIPO implementation bill could be introduced and passed by the end of this year.
On Tuesday, the International Federation of the Phonographic Industry said it was filing 247 lawsuits against alleged file sharers in Denmark, Germany, Italy and Canada.
See more CNET content tagged:
Canada,
recording industry,
file-swapping,
P2P,
RIAA
I am concerned that the US approach, now in committee, which makes it illegal to merely have copyrighted works in a shared directory punishable goes too far. I can image corporations with MS Office on a server somewhere in a "shared directory" getting snagged by this proposed law.
The police merely want to make their job easier, where they would no longer have to prove that any criminal activity actually occurred, but simply that it has the potential to occur. In contrast, Canada is following the right path.
Furthermore, if the music industry is already collecting a "fee" for every CD, tape, etc. sold, whether or not that CD is actually used to make an illegal copy of music, they should be satisfied with that. However, I find it amazing that an industry has been allowed to collect "fines" based merely upon the presumption that a product "might" be used for illegal duplication. I would like to see someone challenge this "fee" in court, since the underlyind basis is the presumption of illegal use, whether or not that actually occurs. Whatever happened to "innocent until proven guilty?"
Also, it seems that the Canadian people have already paid for use and copying of the music when the bought the CD, tape, etc.
mark d.
don't they relies that file sharing is the future.
Did you ever see protestors stopping the atomic bomb or radio revolting against television
I say deal with it and change
REMEMBER VIDEO KILLED THE RADIO STAR NOT THE OTHER WAY ABOUT
I battled myself over whether it was proper to do so. Finally, after much thought I decided to do a little on a need only basis, not on a trying to fill my hard drive up and own the world.
What I mean is the following:
With respect to copyrights, profits for the artists/designers and personal use, I believe the artists and software designer are entitled to make money and even a great deal of it for their work, but I shouldn't feel like a criminal if I want to make a duplicate copy of something for my car or second computer. I believe that when we buy something, WE BUY IT. The computer doesn't own it, nor does my DVD or CD player. I own it. Artists and software designer or their producers should allow for this in their profits and losses. And if my Mom or Dad wants a copy I will give them a copy. I am not pirating the stuff and distributing to endless people and more importantly I am not making any money off of it. Therefore, no profit, no reason for being considered a criminal unless mass distributing, perhaps. Yes, the artist/software designer may not ever sell a copy to these people, but who?s to say they ever would have. On the other hand some people want original copies of items for customer support or pride. And future works by these artists/designers may be bought directly by the people who received a free copy.
With respect to File Sharing, on the principle that a consumer does buy and support these hard workers and buys legitimate copies of certain items they should be able to share them to others via P2P file sharing. If everyone who shared files owned the same number of programs, movies etc. that they shared out, in my opinion, it makes sense that the owners of the copy written material are winning. I know that this won't always happen and there will always be abusers and people who rationalize unlimited downloading with the mind set that it is legal and God put everything on the planet so who really own it, but, someone has to be paid to make money.
So, support your favourite artist of software developer and share from others. This is a win-win scenario.
Finally, to end the rhetoric of feeling like a criminal when duplicating a copy of Windows or Adobe and having to call hotlines for additional activation codes etc. let's have the authorities start putting their foot down on real PIRATERS of products. If someone is downloading anything, burning it and selling it for profit they are a thief and should be tried criminally. Same if they are sneaking a digital video in the movie theater. If the government had minimum nonnegotiable fines and mandatory probation for even the smallest of offences, this would reduce the REAL problem the industries face. Start handing out $10,000.00 minimum fines and one year of probation for a 1st offence and much larger if convicted of piracy on a larger scale.
If this was done, we wouldn't have such a concern with P2P file sharing or burning a copy of something for personal uses.
What a long winded reply, but I feel better and maybe there are others who agree, in whole or part, with my feelings on this serious issue.
Thankfully,
Todd
He seems to think its ok for him to make copies or for his house, one for his car etc of any music or software.
I suggest that he tries this logic in the supermarket, go an ask for a pint/liter of milk and say can i pay for one and get two, one for home and one for my office. Some how i dont think they will do it.
He also seems unaware of the law, that some software is not bought but licenced.
Its just like a lease on his car, you know you dont own that car, you just have the right to drive it. I dont hear people complaining about that.
I think the problem is that people like him and others dont appriciate how much work goes into making software, and they just see it a a free thing. And steling it does not really hurt anyone.
His and others attitudes, will cause the end of a lot of smaller software companies, then his only choice WILL be microsoft, and that will be HIS fault.
It would be an interesting exercise if his boss at work, said to him, one month, oh we dont feel like paying you, for the work you've done, I would what his response would be.
If your making copies of software that you did not pay for, then its simple, your stealing it. You dont seem to realise that there are people who make their living making software, and you know would also like to eat too.
I completely agree with what the Government of Canada has decided: file-sharing is LEGAL.
File sharing has always been my way of getting the music I want. My main use for free music is LimeWire. I am a sole user of this community and always will be. I haven't read on anything negatively about LimeWire or its producers... I see how the CRIA and RIAA are wanting people to fork over thousands (or hundreds of thousands) of dollars for illegal file-sharing. But they are proving that people are ILLEGALLY file-sharing music is over the Internet and is completely ILLEGAL. I think LimeWire cannot be used in a BAD WAY. I mean, the music on their is legal, people have already bought the CD and uploaded the music to the database of LimeWire, thus giving the users complete accessibility: 24/7. The reason that still puzzles me is why are the Americans making such a BIG DEAL about this? You SHARE the music you have, and I guess the RIAA wants EVERYONE to pay for the music they listen to... For "select" content, like EXACT videos searches may come up dry, which is probably one of the "down sides" of LimeWire. But overall, it gives you the best possible music searches! Videos, music, w.e.
Also, I like getting music for free, and who wouldn't?
I just don't understand why producers are wanting to get money out of people who just want to use the music for their personal use? Seriously, what is the harm in that?! You are not maiking hundreds of thousands of copies of rare Ray Charles songs and shipping them to China... Or selling them without written consent. I don't see the harm in downloading music that is available and is legal. Canada is a country which strives to give the people a great place to live. Whoever that "judge" who ruled the case DENIED is an awesome person! (In my books) I think seeing that people who do not mass-distribute the music is not a criminal or committing a crime whatsoever.
1) If you download music for a CD for your car (which is what my friends do) THAT IS LEGAL!
2) If you want to send your friend some music on a CD, THAT IS LEGAL!
3) If your iPod needs some new rap music or country music, and you use LimeWire for your personal use, THAT IS LEGAL!
4) If your friend needs a song for a wedding and you can download it from LimeWire, THAT IS LEGAL!
You see, every situation here is LEGAL. But it just seems the RIAA is always cracking down on some people that are doing it legally, but they "assume" they have done it illegally. They need to see the real problem and track people that ACTUALLY share music, videos, w.e. and never pay for it and share it with people who never have to pay for it. It just doesn't get the producers the money they want to be compensated for for they lost...
I LOVE LIMEWIRE AND HOPEFULLY WE CAN CONTINUE TO SHARE THE MUSIC THAT WE LOVE (DOESN'T MATTER WHAT GENRE) AND STILL HAVE IT FOR YOUR PERSONAL USE. AFTERALL, SHARING IS NOT STEALING!
Keeping it real in Victoria, BC, Canada...
Nebster66