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ISPs don't have to give up names; downloading's O.K., too

Articles in related categories
Intellectual property and copyright
Music related
TORONTO - Federal Court of Canada (and former Competition Bureau chair) judge Konrad von Finckenstein dealt a blow to the Canadian recording industry yesterday by not only saying song downloaders could stay anonymous but also that their activities weren't illegal.

The judge issued his widely anticipated decision yesterday to a motion brought by all of the major record labels soperating in Canada under the auspices of the Canadian Recording Industry Association (CRIA) which demanded that Canadian ISPs give up 29 names and addresses of people it said were illegally trading in massive amounts of music downloaded over the Internet. CRIA named five ISPs: Shaw Communications, Rogers Communications, Bell Canada, Telus and Vid�otron.

CRIA tracked ISP addresses and usernames and said that each of the 29 users identified downloaded over 1,000 songs.

However, in a concise, surprising decision, Justice von Finckenstein said the recording industry just didn't prove its case. While all of the ISPs actively opposed the motion in court, except Vid�otron, Justice von Finckenstein called several of the CRIA tactics and claims into question and concluded "downloading a song for personal use does not amount to infringement."

For the full decision, click here.

Further, "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 user via a P2P service� 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. In either case the preconditions to copying and infringement are set up but the element of authorization is missing."

As for the actual tying of ISP accounts with the ISP addresses and usernames gathered by CRIA, Justice von Finckenstein took a dim view of that as well. While saying, "the ISPs are definitively involved with the alleged infringers. They are not mere bystanders. They are the means by which downloaders and uploaders access the Internet and get in touch with each other," he explained that there are far too many variables involved in accurately attaching a months-old ISP address with the proper end-user. While the ISP address will point to the right account, there is no way to identify the person sitting in front of the computer when downloading and uploading was happening.

"Under these circumstances, given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, this Court is of the view that the privacy concerns outweigh the public interest concerns in favour of disclosure," reads the judge's decision.

"That is exactly the position that we took in court. We spearheaded the initiative to protect customers' privacy rights and we think that was the right thing to do," said Peter Bissonnette, president of Shaw, in a statement.

CRIA, however, is not deterred by the decision. "We remain committed to our plans to enforce the law against unlawful 'file sharing', which is devastating the entire music community. We will continue to fight to protect music creators from the theft of hundreds of thousands of songs," said CRIA President Brian Robertson.

"We are reviewing the decision received today from the trial court and expect to appeal it," added CRIA general counsel Richard Pfohl. "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. 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."

Canada's recording industry has launched several initiatives designed to meet the technological challenges posed by unauthorized online music distribution: from the Value of Music public awareness campaign aimed at the early teen demographic, to direct 'instant messages' to unauthorized file-sharing service users, to the creation of new legal online business models like www.puretracks.com and www.archambaultzik.ca.
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