[fredr123]

Originally Posted by FlamingStuffedTiger

If I'm not mistaken, I think that 2004 ruling was set aside in the subsequent appeal...

Originally Posted by Barnes

Nope

The Federal Court of Appeal was critical of the conclusions drawn by Justice Finckenstein at the court below: http://www.canlii.org/eliisa/highlig...005fca193.html

[46]As has been mentioned, the motions Judge made a number of statements relating to what would or would not constitute infringement of copyright. (See paragraph 15(f) of these reasons). Presumably he reached these conclusions because he felt that the plaintiffs, in order to succeed in learning the identity of the users, must show a prima facie case of infringement.


[47]In my view, conclusions such as these should not have been made in the very preliminary stages of this action. They would require a consideration of the evidence as well as the law applicable to such evidence after it has been properly adduced. Such hard conclusions at a preliminary stage can be damaging to the parties if a trial takes place and should be avoided.

And later:

[51]The motions Judge relied upon the case of CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 S.C.R. 339 to say that there is no "authorization" by the users of the sound recordings in the present case, when he had at the same time said the evidence as to infringement was inadequate. Obviously, at the early stages of this case, it is premature to reach any conclusion as to the applicability of the CCH case. Nor did the motions Judge consider whether the users' act of copying the songs onto their shared directory could constitute authorization because it invited and permitted other persons with Internet access to have the musical works communicated to them and be copied by them.


[52]The motions Judge similarly made findings that there had been no "distribution" within the meaning of the Copyright Act so as to constitute infringement. He said that to have distribution, there must be a "positive act by the owner of the shared directory", implying that making copies "available on their shared drives" is not a positive act. It is not clear that the legislation requires a "positive act" and no authority is cited in support of his conclusion.

The lower court's decision isn't as solid as many think it is. Many of the conclusions drawn by Justice Finckenstein were reached with little evidentiary foundation and are speculative at best. It is dangerous to rely on those statements as positive authority for your online activities.