March 31, 2004

An Unenthusiastic Response to the Canadian Filesharing Decision

Co-Copyfighter and EFF attorney Wendy Seltzer has triumphantly written up the recent decision in the Canadian Recording Industry Association's (CRIA's) demand for filesharers names (Time to Move to Canada). Read the decision: BMG v. Jane Doe [PDF]. Furdlog has a roundup of news articles on the decision (Just In From Canada). Slashdot commentary here: Music Industry Loses In Canadian Downloading Case.

The CRIA really got hit hard in the decision. The judge in the decision slapped them down on nearly every level:

On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:

- made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);
- established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
- established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.

A lot of the prima facie case problems (such as the affidavit evidence and linking P2P pseudonyms with IP addresses) was due to poor lawyering on the CRIA's behalf and can be remedied when a similar case is submitted. The second question about ISPs being the only practical source will also be rather easily established (unless the filesharing networks want to set themselves up for secondary liability in the US). The third question will mean the CRIA will have to move faster from the gathering evidence stage to launching lawsuits. How much faster is not quite clear.

The more significant aspects of the decision, the ones that Seltzer points out and celebrates are:

I'm afraid that I cannot share her enthusiasm.

The first point, about downloading being legal for personal use is a creature of Canadian law.

The second point is actually rather dangerous if interpreted broadly, that is, if you believe in the continued value of copyright law on the internet. The judge held that:

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.
As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement.

The basic conceit here is that making a copyrighted work "available" through a shared directory is not the same thing as authorizing reproduction of the work and is not infringement. Furthermore, even if people actually copy files from the directory, the person making them available still isn't guilty of authorization of reproduction. The judge continues:

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.

My first thought is that this is bad news for photocopy machines in Canadian libraries. If this ruling holds up and the Canadian legislature has to remedy the situation, I wonder whether photocopy machines in libraries will be exempted from the law as judges can't seem to distinguish them from P2P filesharing.

I'm not sure it matters given the library analogy, but I'm not really sure about specific facts regarding the software; does guilt here turn on the defaults of the P2P filesharing software? If the default is not to share, but the user enables sharing, is that "authorization"? If the default is to share, would that not constitute "authorization"?

The judge next addresses the question of distribution itself:

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. 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. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives.

Hmmmm ... well, then how did the plaintiffs find out about the files? Did they just randomly start polling IP addresses?

If this paragraph is read narrowly, then there is the possibility that using software like KaZaA will meet the requisite "advertising that [the infringing files] are available for copying." For example, such software frequently lets "super peers" know what is on the users drive and even answering search queries is a form of advertising. If this paragraph is read broadly, on the other hand, then there is no real digital copyright on the internet in Canada. Under a broad reading, people using P2P software cannot be found guilty of copyright infringement for making any commercially available digital file available via P2P software as long as they don't do anything else.

The logic of the judge's decision does not apply solely to music, but to any copyrighted file. Software, film, video, everything that can be digitized is fair game. Is this the right solution? Now, the CRIA obviously did a terrible job putting together their case. But if the court basically ruled that they can't put together any case for a large number of filesharers, copyright is in serious trouble. Does Seltzer prefer a broad or narrow reading of this decision?

Posted by Ernest at 11:39 PM
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