Canadian Court Case

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The Canadian version of the RIAA, the CRIA, tried to get the names of a number of P2Pers so they could sue them. The judge denied the request.

There has been a great deal of nonsense written about this case, and what people took away from such articles was even worse.

This is becoming a real problem; most news stories on this subject look more like propaganda than news. When I comment on these things, I always look at the court case first to see exactly what the judge said and why he said it.

Unfortunately, even unbiased media (and there’s not too much of that around) rarely show any real comprehension of the nuances in a judge’s decision, and in legal cases, it’s usually the nuances that count. If you dumb down a decision, you end up getting it wrong. If you have biased media, well, they just see what they want to see and spin it, often to the point where what they said bears little resemblance to what the judge said.

The link I’ve provided above is to the actual court case. Read it for yourself and decide who is and who isn’t reporting this right.

Let’s summarize what this case did not do. It did not make P2Ping in Canada legal. It did not generally put individual privacy rights ahead of the rights of corporate intellectual property.

It did not even make downloading legal (it already was). Nor was it the last word of this subject; the CRIA expects to appeal the decision.

All that happened was that the judge declined to order ISPs to reveal the identities of those caught essentially because he didn’t think the CRIA would be likely to win a court case. He didn’t decide the case; he just didn’t think they’d win.

He gave quite a few reasons for this, and to keep this simple, most of those reasons ranged from questionable to downright dubious. It’s just not a well-thought out decision; it resembles someone tossing mud at an opponent hoping something sticks.

However, in this instance, even if some or most of his reasons get overturned on appeal, so long as something major sticks, this could eventually mean CRIA would be eventually blocked from suing those who provide files to download.

To get everyone up to speed, Canadian law is rather quirky in this area. It very clearly states that downloading for personal use is legal, but it then says that makes providing the downloads illegal. Those people whom the CRIA wanted weren’t in trouble because of downloading, but rather because they had a ton of music files available for P2Ping.

Of the many reasons given, two are more likely to “stick” than others.

First, the Canadian Copyright Act says that it is illegal to engage in distributing or communicating music files. The judge read this as meaning that in order to commit an illegal act, the person providing the files has to do something rather than allow something to be done. The judge felt that leaving files available to be copied was not enough of an action to make it illegal.

It’s an arguable point, but it is one that could prevail in higher courts. This would be bad for the CRIA because they would have to get the wording of the law changed before they could pursue any more lawsuits.

Second, the CRIA apparently used bogus files to track and identify the miscreants. The judge pointed out that one can’t have copyright infringement if nothing was infringed.

If appeals courts find that a winning argument, that would be good for the defendents, but it wouldn’t set a long-term precedent, the CRIA would just not use bogus files the next time.

To summarize, this is hardly the last word about Canadian P2Ping. There’s an initial decision, which to a large degree is at least questionable. A higher Canadian court may eventually find a couple of the arguments found in the decision to have merit, but until then, this is not settled.

Downloading isn’t the issue here. The law says you can do that for music files; that’s crystal clear.

Rather, it is making files available for downloading that’s the issue.

P.S. We’ve held off talking about P2P issues for quite some time, and a lot of events have piled up, so we’ll probably have a couple articles on the general subject next week, including a review of Lawrence Lessig’s new book (for now, let’s just say he tries to be the John Kerry of file sharing, trying to be all things to all people).

Ed

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