Internet Changes Everything

Music swappers win court victory

The judge didn't just throw it out ... he drew the parallel with photocopiers in libraries which are used to photocopy copyrighted material.

TheStar.com - Music swappers win court victory

Sharing songs over the Internet is not illegal, judge rules
Recording industry vows 'round two' in fight against piracy

TYLER HAMILTON
TECHNOLOGY REPORTER

The recording industry has suffered a major blow in its global campaign against online music piracy.
A federal judge ruled yesterday that making songs available for sharing over the Internet is not illegal under Canadian copyright law because the user isn't actively distributing music or advertising its availability.

The Canadian Recording Industry Association — a lobby group representing the country's major record labels — asked the federal court on Feb. 11 to order five Internet service providers to disclose the names, phone numbers and addresses of 29 "John Does" accused of copyright infringement.

The industry group, which claims music revenues in Canada have fallen to $881 million from $1.5 billion in five years, said it needed the names to pursue its first batch of lawsuits as part of an ongoing crackdown on piracy.

In the United States, the U.S. recording industry has already filed nearly 2,000 lawsuits, many of which have resulted in substantial settlements.

Justice Konrad von Finckenstein, in a 23-page decision that legal experts called "remarkable" and "stunning," denied the court order, arguing that the association provided no evidence to suggest the accused were actively distributing copyrighted songs or authorizing others to download music.

"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 (of a song) on a shared directory linked to a P2P (music sharing) service," wrote von Finckenstein, former head of the federal Competition Bureau.

Kazaa and Morpheus are two examples of P2P or "peer-to-peer" services.

The services let computer users directly connect with each other so they can share digital content, such as song files, through the Internet. Users can download songs from other computers, or make songs available in a shared computer directory that others on the Internet can access.

In December, the Copyright Board ruled that downloading free songs from the Internet for personal use is legal because Canadians pay a levy on blank recording media, but making songs available for others to download — generally referred to as "uploading" — would seem to violate the law.

Yesterday's federal court decision reinforces the downloading right but would appear to contradict the Copyright Board's view on making songs available through services such as Kazaa. Experts say the association intentionally targeted high-volume uploaders instead of downloaders because of the Copyright Board's view on the matter.

Richard Pfohl, general counsel for the association, said in a statement that his organization is reviewing the court's decision and is likely to file an appeal.

"We presented more initial evidence than has ever been put forward in a request for disclosure of user identities from Internet service providers — which Canadian courts have granted on numerous occasions," said Pfohl, adding later in an interview that the association will move on to "round two" of its fight against piracy.

"We think Canadian copyright law protects musical work on the Internet and we'll continue to work to enforce our rights."

The act of "making available" is illegal under a World Intellectual Property Organization treaty that Canada has signed, "however that treaty has not yet been implemented in Canada and therefore does not form part of Canadian copyright law," said von Finckenstein.

Howard Knopf, an intellectual property lawyer representing the Canadian Internet Policy and Public Interest Clinic, which was granted intervener status in the case, said the decision intensifies the debate over how Canada should update its copyright laws.

And he said the decision could influence the outcome of piracy cases in other countries.

"I'm getting e-mails from all over the world as we speak," said Knopf.

"This will get big attention in the United States, in the Netherlands and in Australia where there is litigation going on."

April 1, 2004 at 08:00 AM in Business Models | Permalink | TrackBack (101) | Top of page | Blog Home