On this motion, the CRIA provided an affidavit from Gary Millin, President of MediaSentry, a company that specializes in detecting the distribution of materials on P2P networks. The record labels supplied MediaSentry with the names of songs that were to be investigated. The company then searched for and downloaded the songs, matched the sources of the files to specific IP addresses and took screenshots of the users shared folders to show the volume of copyrighted material being made available for download.

Justice Konrad von Finckenstein (now chairman of the CRTC) cited Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133, a case involving a pharmaceutical company that sought from Revenue Canada the names of alleged importers of a certain drug. By importing this drug, the importer had effectively infringed on Norwich Pharmacal’s intellectual property rights; in this case, it’s patent. Revenue Canada was ordered to disclose the identity of the importer. The judge determined that The Equitable Bill of Discovery Requirements, which is a list of rules that govern whether a third party can be forced to provide information, should be applied in the file sharing case. (Finckenstein, par. 13)

The first rule states that the applicant putting forth the motion must establish a prima facie case against the person they intend to sue. This means that the plaintiff must provide sufficient evidence to win the case barring any contest or additional evidence presented by the defendant. The respondents (the ISPs) argued that Mr. Millin did not collect the information provided personally and he did not reveal his sources. Therefore, they claimed the evidence was hearsay. Motions Judge Finckenstein agreed. This judgment that the prima facie test had not been met would be the turning point for this ongoing legal battle and would be addressed thoroughly at appeal.

Another requirement for discovery states that the person that is being ordered to provide information must be the only practical source of information available in order to justify a breach of privacy. The Motion Judge did not feel convinced that the identities could not be more easily sought directly from Kazaa.

The other major roadblock to the CRIA being granted access to the users’ identities was the fact that the discovery requirements state that the interests of intellectual property protection must outweigh the privacy concerns of the alleged infringers. The respondents argued that the time between the alleged infringement and when they could provide the information was too long to ensure the information was valid. The ISPs use dynamic addressing, that is they frequently change the address assigned to a particular user. Even then, “at best the ISPs will generate the name of the account holders; however, they can never generate the name of the actual computer users”. (Finckenstein, par. 34) This unreliable data could potentially breach the privacy of innocent users as well as unnecessarily name them as defendants.

The Motions Judge thereby decided that because the evidence was hearsay, and arguably stale anyway, he found that the requirements for discovery were not met and denied the motion put forth by the CRIA. He did not stop there. The Judge continued with far ranging statements regarding whether this was a case of copyright infringement at all.

Read part 3…

Well, it is more accurate to say that file-sharing is not illegal in Canada.

In 2005, I wrote and essay: “Copyright v. Privacy: A Review of the Legal War Between Record Labels and File Sharing from a Canadian Perspective”. I am going to review it here, in my blog and discuss what has happened since. Here is part one of the essay:

In February of 2004, the Canadian Recording Industry Association (CRIA) filed a federal lawsuit against 29 alleged file sharers for copyright infringement and requested their identities from the five major Canadian Internet Service Providers (ISPs). This was the first suit brought by the record label trade group against individual peer-to-peer (P2P) file sharers whom the CRIA claim have caused the loss of millions of dollars and dozens of jobs in the Canadian music industry. Citing privacy concerns, the ISPs refused. The CRIA proceeded to file a motion in the federal court to order the ISPs to disclose their clients’ private information.

This case forced into court the issue of whether file sharing is legal in Canada. In the last several years the Recording Industry Association of America (RIAA), the label trade group for the U.S., has begun suing individual file sharers for infringement of copyright. They are able to do this by virtue of the Digital Millennium Copyright Act (DMCA), which implements the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, 1996) into U.S. law. The DMCA allows copyright holders, among other things, special rights to sue anonymous infringers. Since the DMCA was signed into law in 1998, over 1500 file sharers have been sued for monetary damages by the RIAA. Canada has not implemented the WIPO treaty into copyright law and thus,
“It’s a more difficult, expensive and cumbersome process [to sue infringers] than in the U.S.” (Hu, 2003 quoted Geist)

The plaintiff, the CRIA, represents the major record labels and claim to produce 80% of all legitimate sales of music in Canada. The Defendants are a number of peer-to-peer file sharing program users (mainly Kazaa) known only by their online aliases. The CRIA claims that it has proof that the defendants have made thousands of copyright protected songs available to the world by placing them in shared folders on their hard drives.

By law, in order to bring action against these defendants, the CRIA must be able to identify who they are. They say that the only way that they can determine their identities is through the ISPs providing Internet access. The alleged file sharers have an expectation of privacy that “is based on both sections 3 and 5 of the Personal Information Protection and Electronic Documents Act (PIPEDA) and on their ISP account agreements.” (Finckenstein, 2004 par. 9) But, under PIPEDA, paragraph 7(3)(c), an ISP may disclose personal information if so required by court order. The ISPs originally refused to provide these names citing PIPEDA and hence the CIRA hence brought a motion to have the court order the ISPs to identify the users.

Gripping, no? Subscribe to this blog and don’t miss the stunning conclusion!!

Read part 2…