File Sharing in Canada

[Buzzard]

I googled, but everything I find is pretty dated. From what I've found, it's still legal to download but not to upload, thanks to Judge Frankenstein's 2004 ruling. Does that pretty much sum it up still?

Just curious.

[Barnes]

Originally Posted by Buzzard

I googled, but everything I find is pretty dated. From what I've found, it's still legal to download but not to upload, thanks to Judge Frankenstein's 2004 ruling. Does that pretty much sum it up still?

Just curious.

Kind of. It's not illegal to upload either. A user places a file in a shared directory is not considered by our court as an authorization to copy. It's like a library placing a photocopier in the middle of the books. Just because the library gave people the means to photocopy copy written material doesn't mean that they authorize it.

However, our bureaucrats are busy secretly enacting the ACTA treaty because treaties don't have to pass through Parliament so who knows what will happen in the future.

[FlamingStuffedTiger]

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

[Barnes]

Originally Posted by FlamingStuffedTiger

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

Nope

The judgment of the Federal Court of Appeal was delivered 19 May 2005, at Toronto, Ontario.
Justice Sexton, for the court, upheld the core finding of the previous case, that the identities should not be revealed to the plaintiffs. He found that merely placing files in a shared directory does not constitute the "authorization" needed to infringe on the distribution right.

[WilsonFourTwo]

Originally Posted by Barnes

Kind of. It's not illegal to upload either. A user places a file in a shared directory is not considered by our court as an authorization to copy. It's like a library placing a photocopier in the middle of the books. Just because the library gave people the means to photocopy copy written material doesn't mean that they authorize it.

However, our bureaucrats are busy secretly enacting the ACTA treaty because treaties don't have to pass through Parliament so who knows what will happen in the future.

Next on the agenda....

The WOYA (We Own You All) treaty. Government finally gets serious about protecting us all from ourselves by removing those pesky rights that cause us to exercise personal choice.

[fredr123]

http://www.cippic.ca/index.php?page=...-sharing-legal

According to the Federal Court, in a decision issued by Justice von Finckenstein on March 31, 2004, neither downloading a song for personal use nor merely making that file available to others to download from your computer (without some more active sharing activity) amounts to infringement under Canadian copyright law. The court ruled that “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” or “authorization of the reproduction of sound recordings” under the Copyright Act. On appeal, the Federal Court of Appeal ruled that Justice von Finckenstein had ruled prematurely on the issue and set aside the ruling without deciding the issue. See CIPPIC’s webpage on File-sharing lawsuits for more information on this case.

The exception in the Copyright Act (s. 80) only applies to musical works:

The Copyright Act contains a special exception for “private copying”: it permits the copying of music files “onto an audio recording medium for the private use of the person who makes the copy”, but does not permit copying for the purpose of “distributing” or “communicating to the public by telecommunication” (s.80). It is generally accepted that downloading music for personal use is legal under this section. However, the record industry disputes this on the basis that a computer’s hard drive does not constitute an “audio recording medium”.

[Azure]

Screw the government.

[fredr123]

Originally Posted by Barnes

However, our bureaucrats are busy secretly enacting the ACTA treaty because treaties don't have to pass through Parliament so who knows what will happen in the future.

ACTA is a trade agreement. Treaties need to be ratified, which does require parliamentary action. See, for example, the legal effect of agreements reached through the World Intellectual Property Organization (WIPO) like the WIPO Internet Treaties which were agreed to by Canada but have not been ratified.

[Buzzard]

Originally Posted by Barnes

Kind of. It's not illegal to upload either. A user places a file in a shared directory is not considered by our court as an authorization to copy. It's like a library placing a photocopier in the middle of the books. Just because the library gave people the means to photocopy copy written material doesn't mean that they authorize it.

However, our bureaucrats are busy secretly enacting the ACTA treaty because treaties don't have to pass through Parliament so who knows what will happen in the future.

I see.

So would it be safe to say then that in Canada it's a case of don't look, don't ask, don't tell and all is well?!

[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.

[FlamingStuffedTiger]

Originally Posted by fredr123

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.

Yes, I agree:

http://www.cippic.ca/documents/Brief...A_Decision.pdf

The FCA made some comments regarding copyright which indicated that the trial judge’s
findings on that issue were premature. However, the FCA did not reverse those findings,
but merely left the question of copyright law and file-sharing for a future case:

“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.”
(para 47)

You can correct me if I am wrong, but I believe the reason why the appeal was not allowed (and the lower court's ruling upheld) was because they did not believe there was enough in the case to violate the accused's privacy and force him to reveal his IP address for further evidence collecting. That is why the ruling of the lower courts was declared premature because they did not pass the aforementioned test first. If the CIRA or whoever were ever able to bring enough to the table, I think this is where we would finally see the courts comment on Justice Finckenstein's arguments of 2004. Until then, can't really be sure if it is reliable... Of course, this probably means that the courts definitely willing to hear future lawsuits on this matter.

[fredr123]

1. An exception exists in Canada's Copyright Act (s. 80) for personal copies.
2. The exception only applies to musical works.
3. The recording industry is not a fan of this exception and has challenged it (so far unsuccessfully) in court.
4. Efforts were underway to change Canada's Copyright Act that would have altered this exception. Those proposed changes died on the order papers when elections were called in 2005 and 2008.
5. Other efforts are under way to alter Canadian copyright law by negotiating and implementing the Anti-Counterfeiting Trade Agreement (ACTA).
6. Under the current copyright regime in Canada, there is little preventing a rights-holder from bringing an action against you in court for alleged copyright infringement. It may be difficult for the rights-holder to obtain enough information to sustain the complaint but it is not impossible. The costs to you of asserting a successful defense are likely prohibitive.
7. Govern yourself accordingly.

[Rathji]

So I am in a PM discussion with someone who thinks downloading files protected by copyright is not illegal, because a cop told him that it wasn't and that people are never charged with it.

I have invited him to read and join this thread discussion.

[FlamingStuffedTiger]

Originally Posted by Rathji

So I am in a PM discussion with someone who thinks downloading files protected by copyright is not illegal, because a cop told him that it wasn't and that people are never charged with it.

I have invited him to read and join this thread discussion.

A quick response...

I'm pretty sure this is not true. As fredr123 points out in the post above, there are provisions that do protect copyrighted works in Canada. Therefore, it is illegal to improperly download them.

Now, in my opinion, whether someone has ever been charged before is irrelevant... Just because no one has ever been charged for something, doesn't automatically make the act legal. It just means no one has been charged for it yet.

[fredr123]

Originally Posted by FlamingStuffedTiger

A quick response...

I'm pretty sure this is not true. As fredr123 points out in the post above, there are provisions that do protect copyrighted works in Canada. Therefore, it is illegal to improperly download them.

Now, in my opinion, whether someone has ever been charged before is irrelevant... Just because no one has ever been charged for something, doesn't automatically make the act legal. It just means no one has been charged for it yet.

As the BMG v. John Does case demonstrated, there are all sorts of technical problems in identifying the person alleged to be infringing copyright. Most of the ISPs involved in that case refused to voluntarily hand over their customers' identification information to the complainants which meant they had to seek an order to get that information through the court system. That's really what that case is about more so than the comments about what may or may not be legal with respect to downloading music in Canada.

The recording industry in Canada decided to focus on copyright reform and has been one of the most vocal proponents to change our laws to reflect WIPO and DMCA provisions. I'm convinced they are also supporters of laws that would require ISPs in Canada to cooperate with law enforcement by more readily handing over subscriber data without a court order. All these changes help them get around the challenges in BMG and would give them more power to enforce alleged copyright infringement.

[Coys1882]

How do they prove that you actually downloaded the files? Do they get warrants and seize your PC? With IP spoofing and people using other people's wireless networks - how can they prove who actually downloaded it? Or do they have to?

[fredr123]

Originally Posted by Coys1882

How do they prove that you actually downloaded the files? Do they get warrants and seize your PC? With IP spoofing and people using other people's wireless networks - how can they prove who actually downloaded it? Or do they have to?

In the BMG case, the plaintiff hired MediaSentry to do an investigation. They were able to link files downloaded from Kazaa and iMesh to particular user names. They were then able to link those user names to IP addresses and determined what ISP they were assigned to. Using all that information, they went to the court to get an order compelling the ISPs to reveal the subscriber information for each IP address.

The court said the test to meet to get such an order contains five elements:

(1) applicant must establish a prima facie case against the unknown alleged wrongdoer; (2) person from whom discovery is sought must be more than an innocent bystander; (3) that person must be only practical information source; (4) said person must be reasonably compensated for expenses of compliance with the discovery order; and (5) the public interests favouring disclosure must outweigh legitimate privacy concerns.

A lot of what we've been discussing already arose from the court's consideration of that first stage. If downloading a music file from the internet is not copyright infringement in Canada, then you can't establish a prima facie case against the alleged wrongdoer. Of course, the court also had difficulty with the manner in which MediaSentry connected the user names to the IPs. There was no real evidence on that point.

In the United States, similar cases commenced by the RIAA have been going on for quite some time. In one of the more famous cases, Capitol Records v. Thomas, the defendant Jammie Thomas alleged that she was a victim of spoofing. The jury did not believe her and found her guilty of copyright infringement. As one juror explained:

The jury, he said, was convinced that Thomas was a pirate after hearing evidence that the Kazaa account RIAA investigators were monitoring matched Thomas’ internet protocol and modem addresses.
Expert testimony from an RIAA witness also showed that a wireless router was not used, casting doubt on her defense that a hacker lurking outside her apartment window with a laptop might have framed her, he said.
Hegg pointed out that Thomas’ Kazaa account username was "Tereastarr" — the same username Thomas chose for her e-mail, online shopping, online dating and MySpace accounts.


"I think she thought a jury from Duluth would be naïve. We’re not that stupid up here," he said. "I don’t know what the [edit] she was thinking, to tell you the truth."

Read More http://www.wired.com/threatlevel/200...#ixzz0ht6zlevs

If there was some inconsistency with the username and Thomas' other internet accounts or if there was a wireless router involved, then maybe she could have gained some support for her spoofer/hacker defence.

These matters are handled by the civil court system (i.e., not criminal). The burden of proof is lower. That means you don't need to prove the alleged wrongdoer is guilty of copyright infringement beyond a reasonable doubt. You merely have to show that it is more probably than not.

[photon]

https://www.ipredator.se/?lang=en

If your ISP is going to be a snitch about what you do online, then encrypt all your traffic so they can't snitch.

[burning_acid1]

Originally Posted by photon

https://www.ipredator.se/?lang=en

If your ISP is going to be a snitch about what you do online, then encrypt all your traffic so they can't snitch.

I thought ISP's aren't allowed to provide your personal information to other due to privacy reason?

[photon]

fredr123's posts above cover that a bit, that's the whole rub of the issue at this point.. but think about it, does a 7-11 hold the security tapes back because of privacy issues if there was a crime?

If there's a court order to turn over the records, that would supercede any privacy concerns because the court order means there's a good reason.