Music Industry Loses In Canadian Downloading Case

pref writes "'Canada's music industry can't force Internet service providers to identify online music sharers, a Federal Court judge has ruled.' They wanted the Internet service companies like Sympatico, Rogers and Shaw to give them the real identities of the individuals so they could sue them for copyright infringement. They were seeking a court order requiring the companies to provide the information. But they didn't get it, so the Internet companies don't have to identify their clients and the music companies can't proceed with their lawsuits.""

Woo Canada!

[Jonas the Bold]

As an American living in Canada, I feel good about this. The main benefit from living in Canada I've found so far is just a lower stress level. The people at the wheel seem saner, more composed and less twitchy, it doesn't seem as absolutely imperative to pay attention the news, that sort of thing.

Stuff like this only helps.

Re:Hooray!

[Shakrai]

Good for Canada! I don't really think it's an ISPs business to get involved in civil matters between outsiders and their clients. If I ran an ISP in this day and age I would keep my radius and/or DHCP logs for 24-48 hours. If RIAA can't subpoena me in that amount of time that's their problem.

Does anyone know what the outcome of the similar case in the US is? Last time I heard anything the appeals court had reversed the lower court decision -- so RIAA started suing IP addresses (some of which weren't in the US as I recall). Was there any resolution to this or is it still in litigation?

As an aside I don't really think it's the business of an ISP to hide their customers when they break the law either. I just think RIAA should be held to a higher burden of proof then just giving a judge (or a clerk) an IP address and getting the name of that customer. They should actually have to prove that IP address was engaged in illegal activities. Does anyone here really think they can do that for each and every file sharer? If this was held to a real burden of proof these cases would stop tomorrow.

I wish somebody would have the backbone to actually fight one of these instead of rolling over and settling. It's basically going to come down to "He said"/"She said". Sure RIAA says I was sharing files -- can they prove it with the testimony of a neutral third party? Somebody they are paying to find people on P2P networks hardly qualifies as neutral.

I dont think this is over by a long shot

[arock99]

Taking a look at the history in the US with the RIAA I highly doubt we have seen the last of this. The biggest problem the RIAA faces with Canada is they are already getting royalties for every blank CDs purchased and therefore only have legal grounds to sue people who share and cannot touch those who simply download the music. But hey i'm no lawyer so what do I know :)

Don't celebrate yet.

[Liselle]

Well, I RTFA (someone reply with "You must be new here" for your free +5 Funny), and it doesn't look to be a cause for celebration. It seems as if they didn't present compelling enough evidence to the judge.

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies onto shared directories on their computers which were accessible by other computer users via an online download service," the judge wrote.

I'll wager that once the Canadian recording industry gets its wagons in a circle, they are going to try again. Regrettably, one failure won't stop them.

Re:Woo! Proxy Time

[BdosError]

Actually, it's only legal to download in Canada. Uploading is illegal.

As others have said, this case (RTFA) doesn't deal with this, it's more about the music industry not having sufficient proof of infraction to compel the release of the names.

Judge says "no copyright infringement"

[thirty-seven]

Even more significant, in my opinion, is that the judge in this case said the reason why he wouldn't give a court order for the ISPs to release names is that he didn't consider this copyright infringement [www.cbc.ca].

Specifically, he said:

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service."

To me, this sounds like he's saying that standard P2P file sharing is not copyright infringement. It sounds like as long don't actively upload the file to someone else, or personally authorize them to download it from you, then its OK.

I like it!

[gagy]

Earlier today I posted about how glad I am that I don't live in a twisted country like the US, because of a wonderful law that's being discussed. Here's a quick little tidbit.

File sharing would be punishable by prison sentences of up to ten years in addition to large fines. Another bill introduced by Sen. Orrin Hatch (R-UT) and Sen. Patrick Leahy (D-VT) - Called the "Pirate Act" - would empower the Justice Department to initiate lawsuits against file sharers. According to the both the entertainment industry and Sen. Hatch, P2P networks are virtual dens of thieves, with the most pernicious of un-American activities occurring in an attempt to lure young Internet users into a lifetime of lawbreaking. In defending the Pirate Act, Hatch said the operators of P2P networks are running a conspiracy in which they lure children and young people with free music, movies and pornography. With these "human shields," the P2P companies are trying to blackmail the entertainment industries into accepting their networks as a distribution channel and source of revenue. "Unfortunately, piracy and pornography could then become the cornerstones of a 'business model,'" Hatch said in a statement. The illicit activities of file sharers "then generate huge advertising revenues for the architects of piracy."

And Then I got flamed because in Canada we pay excise tax on CDs (and soon to be other recording media) because they can potentially be used for pirating copyrighted works. I totally agree with that law. The money goes to the recording industry (I think) and everyone is fairly content with the deal. (besides, it's only a few bucks and it seems fair enough to me. Yeah, i know, majority of the people use the CDs for legit purposes, blah blah blah).

Re:In that case...

[Shakrai]

In that case you might be the one breaking the law. Where I live, any ISP is required by law to keep such logs for at least a month

Well I worked in the ISP business for three years and we never heard of such a law. Of course we kept our logs for a longer period of time then that but we were never subpoenaed for them.

I wonder what would happen if you just ignored their initial e-mail subpoena request the way AOL used to ignore their abuse mailbox. By the time they get around to mailing you a certified letter hopefully your logs will have expired and they are SOL.

Sorry, but as a network admin I have better things to do then research my clients for RIAA when they haven't even won any sort of lasting judgment saying they have the right to this information.

If law enforcement comes knocking and tells me that one of my clients threatened to kill the President or blow up the school then that's quite another story (somebody's life might be in danger).

But if RIAA wants me to spend a couple hours digging though my logs then they can pay me my usual consulting rate to do it. And they will agree to indemnify me in the event that they lose their case saying they have the right to this information and my client(s) that I turned over decide to sue me. Otherwise they can go to hell.

Copyright infringement

[thomasdelbert]

This case at first appeared to be a case of on-line privacy, but the ruling does little to protect that. The only privacy ruling that the judges made is that the music industry needs to prove that copyright infringement occured before they can subpoena.

The real ruling is that simply putting the mp3 files into a shared directory (via a P2P) is not copyright infringement - that goes under personal use. IANAL, and I haven't read the text of the ruling, but to make a call like that probably requires the judges to create a for deciding whether or not something is personal use or copyright infringement.

So now, we have to find where the line is:

• Financial gain - This would invalidate the GPL and add fuel to the fire for SCO v. IBM. It seems that the core of their argument against the GPL is that it is "harmful" because it isn't made for financial gain. We can't have anything adding legitimacy to their farcical arguments
• Active distribution - perhaps the argument is that making a file available is different from giving a file to a person in the same way that unplugging a person's life support is different from injecting poison into their veins. Now everything distributed on the web is no longer protected by copyright which also would invalidate the GPL as I know of no GPL program that has its initial method of distribution being anything other than making it available for download from the web.

So, where is the line? What does a person have to do to infringe copyright these days?

- Thomas;

I'd love to see 'em even try to sue me

[Toxygen]

First of all, I'm downloading my albums through bittorrent, so it's not like I'm hosting thousands of files on kazaa on a permanent basis so they can't bust me for being a major supplier which seems to be the people they're targeting. Second, if they took one look in my house they'd see an enourmous pile of store-bought cds, the majority of which have been bought in the past 5 years and after listening to my downloaded copy. If they check my computer, they would find that for every complete discography of a band I really like (and for many of these own the actual cds already and am working on the rest) they might find 1 lone album from a band I wanted to "try out". I'm your fucking customer and I'm using my downloads to make critical music purchases, so don't try and make me stop or else I will!

Re:Canadians Are Evil

[gagy]

The liberals are alright, but not liberal enough for me. Check out the NDP [www.ndp.ca], my party of choice. You're going to think we're total commies after this.

Re:The loophole

[Swanktastic]

However, downloaders be warned: the music industry will now proceed to actually participate in copyright infringement by downloading those shared songs or otherwise monitoring the downloads of those shared songs. The "my songs are shared out but were not actually downloaded" argument might not work next time.

Not to be too pedantic, but can a copyright holder actually violate their own copyright by pirating a copy of a song? It would seem to me that if I am the ultimate owner of a song, I have the right do do with it whatever I choose.

Therefore, an RIAA representative downloading a song from a Napster node is not an illegal act on their part-- which means that it's not an illegal act on the part of the uploader?

I feel like the RIAA can't have it both ways. If the act is illegal, then both parties are guilty. Or is the RIAA committing a crime, and then refusing to press charges against itself?

I feel like I'm chasing my tail on this one...

Re:Hooray!

[Anonymous Coward]

It goes much farther than reported here. I have just heard the details on TV.

It seems that what most music downloaders do is perfectly legal here in Canada. The only limitation is that the download must be for the user's own use.

Futher, THE BURDEN OF PROOF IS ON THE MUSIC INDUSTRY TO PROVE THAT YOUR INTENTION WAS TO DOWNLOAD FOR THE PURPOSE OF COMMERCIAL RESALE!!!

THEY NOT ONLY HAVE TO CATCH YOU DOWNLOADING, THEY HAVE TO CATCH YOU SELLING!!!

Don't you wish that the USA had civilised laws like that?

Re:Legality?

[Anonymous Coward]

IANAL, but since imposing the levies on CD-R and other recordable media on behalf of the recording industry, downloading for personal use has been permissible under copyright law in Canada, as is sharing music with a friend (e.g., by loaning them a CD, from which they might make a copy of the music). Uploading/serving music for public consumption (without proper clearance from the owner) is not legal, and that is what the music industry case was apparently about. They weren't going after downloaders, because there is no legal basis for doing so in Canada.

So, download away if in Canada. If you have ever bought a CD-R, CD-RW, DVD-R, or other types of recordable media, you have already paid for the priviledge. But your sources will potentially still be in trouble

It is a weird situation that the music companies can only try to go after uploaders/servers here, but I think it is just payment for the obscene recording media levies that everybody has to pay. I'm bitter, because I buy all my music on ordinary CDs (I think it is the right thing to do, unless the artist provides some other means of compensation), and yet I pay that damn levy every time I buy a data backup CD-R with no music on it at all. So, enjoy the fruits of the levy deal, music industry! Maybe you should lobby the government to repeal the levy ;-)

Ha Ha!

Laws in Canada

[rjelks]

This is probably obvious, but the reason that they can't sue the ISP's in the US for copyright infringement is that they are protected from the actions of their customers. This is why they are going after the networks (Napster, Kazaa, ...) and the users. Does Canada have similar laws protecting the service providers? If that's the case, as long as the Canooks are around, p2p will have a steady stream of uploaders. I can't wait to go home and download some more Gordon Lightfoot and Anne Murrey. Just kidding, it's nice to see a court system back the privacy of the individual over the media conglomerates interests.

Re:Hooray!

[Crudely_Indecent]

As a network admin for an ISP, I can say that SPECIFICALLY FOR THIS REASON I delete logs after 5 days. When the local police or FBI calls asking if we have logs for a certain period of time I happily say "Nope, we delete logs after 5 days" and send 'em packing. I can't afford to have any of my servers taken for evidence. 5 days of logs is just enough to deal with the trivial issues that commonly arise, and just short enough that no government agency will be asking me for them (ain't beaurocracy grand)

Keeping the anonymity of our clients is one of the few luxuries that an ISP has left. If I began handing out my customers names to ever government agency that demanded them, this ISP would go out of business quickly. Who wants an ISP that will sell them down the river? Word of mouth spreads quickly, and I like my job!

I figure, it's none of my business what you do with your connection. As long as you don't attack my infrastructure I won't stop you. If you get caught doing something illegal, I didn't help catch you. You have nobody to blame but yourself.

Until they pass a law requiring me to keep these logs, I'll continue to delete them.

Yeah

[superdan2k]

Well, I, for one, welcome our new downloading overlords.

Seriously, maybe I should move to North Mex^H^H^H^H^H^H^H^H^HCanada. Less psychotic right-wing fundies. And Canadian chicks are hot, they have good beer, and they don't shoot everything that moves on two legs.

Missing mod option

[Snaller]

There should be an mod option called "Predictable"

Re:Judge says "no copyright infringement"

[dreamer98]

Canada's new Personal Information Protectiona and Electronics Document Act [privcom.gc.ca] is starting to be tested with the issue of wheather or not companies can release private information to third parties. For an ISP like Shaw [secure.shaw.ca] to release customer names to the CRIA would require consent (not likely) or the occurance of an illegal act.

Re:Canadians Are Evil

[s3nns]

It does. How you can talk about NDP-run provincial governments and not mention Saskatchewan [wikipedia.org], however, is beyond me.

Re:Canadians Are Evil

[Curtman]

Yeah, it proves the electorate doesn't give a damn about provincial finances until its too late. I'm a Manitoban, who saw us go from years of surpluses under the Tories back into a defecit under the NDP in just one term. They also were kind enough to reform the labour laws so that to form a union in a workplace, you need 30% support for it, and it takes 75% to support removal of the union. How nice and democratic. I sure hope the conservatives get their act together for the next election, that last one was a cake walk for Doer and his goofy policies. Just now I went looking for a link, and whats the top story on news.google.ca?

• NDP's voodoo economics hides real deficit picture [canoe.ca]

Ontario is practically begging us to build a new mega project hydro dam at Wuskwatim, and these goofy NPDers are hesitant. We've got Ontario, and US State governors making trips here offering money to help build the thing. They're worried about the expenditure. These freaks need to go.

Re:Woo! Proxy Time

[FreeUser]

"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."
http://www.cbc.ca/storyview/MSN/2004/03 /31/downloa d_court040331

Sounds to me like uploading's legal too.

No, uploading is not legal in Canada (IANAL, &c).

Check your definitions again.

Having a file on your hard drive is not, by any reasonable definition, uploading.

Opening the door so that others can access your system is not, by any reasonable definition, uploading.

Telling people your door is open (and what your address is) is not, by any reasonable definition, uploading.

If people come through your open door and help themselves, you are not (by any reasonable definition) engaging in distribution. They are doing the copying, not you.

Under Canadian law this is apparently legal. Ironic, as I just asked this question in another thread before this story ran ... because reading the Canadian law on the subject, it should, logically, be legal to run bittorrents, as it is solely an act of downloading, not uploading.

Re:So wait a minute

[Anonymous Coward]

But at the end of the day, life expectancy in Canada is significantly better than the US.

The US has a life expectancy close to that of Cuba ( a third world country).

Definitions critical to steering clear of trouble

[FreeUser]

Fine, wrong word, whatever. I'm not exactly familiar with anyone forcing someone to take their mp3's over P2P, so sharing them would be about as close to uploading as you can get.

It is important to get it right, especially if you live in Canada and plan on sharing music (legally). Upload that song to an FTP or web server somewhere and you've broken the law in Canada. Leave it sitting on your hard drive and open the door for others to download it (via bittorrent or what have you) and you are, apparently, not breaking the law in Canada.

This is important to understand if you're planning on doing something like this. It may seem like a nit-pick, but in an environment where large, dying corporate powers are routinely smashing the little guy's life to smithereans in a belated effort to save their obsolete business models, legal definitions like these are critical. Get it wrong, and you'll find yourself wearing a big fat bullseye inviting those thugs to destroy your financial life.

Half-truths

[EMIce]

Sure gloat about the War of 1812. Not to mention it was the Brits [tc-solutions.com] that burned down the White House, led by Major General Robert Ross [wikipedia.org]. His account reads:

"Judging it of consequence to complete the destruction of the public buildings with the least possible delay, so that the army might retire without loss of time, the following buildings were set fire to and consumed -- the capitol, including the Senate house and House of Representation, the Arsenal, the Dock-Yard, Treasury, War office, President's Palace, Rope-Walk, and the great bridge across the Potewmac."

Of course I'm sure the Canadians played a pivotal role in cheering on the powerful British forces from the sidelines. They also incited Indians against American settlements on the border, God forbid their militia fight their own battles. While the U.S. chose to repel the unfair rule of the British, the Canadians smiled and took it up the ass, only gradually rebelling, with ideas borrowed from the United States. I wonder if the British would have eventually even given Canada sovereignty had the U.S. not weakened and driven them out from most of North America.

Re:Hooray!

[BuckaBooBob]

Sounds like your Servers are a Prime Target for your servers to be taken for Data recovery.. and if you start using a data eraser then you could get hit with a a number of things like aiding, obstruction ect... Just hope you don't have any terrorists using your service (That would be one situation where they might put your practices under the microscope)