File Swapping Copyright Law Update

On May 19th, the Federal Court of Appeal released its decision in the so-called "file swapping" case in BMG Canada Inc. v. Doe. The decision is available online on the court's website.

Ted Tjaden of the Copyright Committee of the Canadian Association of Law Libraries has provided some analysis.

In a message to the CALL listserv, Tjaden writes:

"The Federal Court of Appeal dismissed the motion by the plaintiffs (various record producers represented by the CRIA). The CRIA had sought an order from the trial court for the service providers to release the names of 29 'John Does' who they allege were major 'file-swappers' on services such as Kazaa (by 'major', the plaintiffs were alleging over 1,000 songs per defendant were being downloaded)."

"One of the main reasons for their defeat at both trial and on appeal appears to have been because of the inadequate affidavit evidence they provided regarding the alleged infringement and because of the delay in bringing the claim (the fear being that the evidence was stale and might result in the incorrect people being identified). The appeal was dismissed, though, without prejudice to the right of the CRIA to bring another motion for the order sought with better evidence. The appeal court specifically did not comment on issues of whether file-swapping was per se copyright infringement."

(...)

The lower court found:

"There was no evidence of copyright infringement. In particular, the downloading of a song for personal use does not amount to infringement ... and there was no evidence that 'the alleged infringers either distributed or authorized the reproduction of sound recordings' but that they 'merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service..."

"There is not '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 since 'in either case the preconditions to copying and infringement are set up but the element of authorization is missing'..."

The Federal Court of Appeal ruled that:

"There were legitimate conflicting interests between the concern of record producers about potential copyright infringement versus the privacy concerns of Internet users and ISPs (paras. 1-5)."

"(I)f the plaintiff delays between the time of its investigation of alleged infringement and the time it seeks an order for disclosure of the identities of the defendants, the court might refuse an order for disclosure since there is a risk that the information used to identify the alleged infringers is inaccurate (para. 43) In addition, the plaintiffs must limit their request to only information dealing with copyright infringement..."

"If private information irrelevant to the copyright issues is extracted, and disclosure of the user's identity is made, the recipient of the information may then be in possession of highly confidential information about the user. If this information is unrelated to copyright infringement, this would be an unjustified intrusion into the rights of the user and might well amount to a breach of PIPEDA by the ISPs, leaving them open to prosecution.(para. 44)"

The copyright committee page of the CALL website will be updated with a full analysis of the case in the next few days.

The CIPPIC website (Canadian Internet Policy and Public Interest Clinic at the University of Ottawa) has links to various news reports and commentary.

David Fewer of CIPPIC is quoted extensively in an online article on the P2PNet digital media news site.