COPYCENSE

A federal court in Canada has ruled that people who share copyrighted works on peer-to-peer networks are not liabile for copyright infringement.

The decision (.pdf) was issued in response to a motion by the Canadian Recording Industry Association (CRIA) that sought permission to identify more than 25 people who allegedly were swapping musical works across P2P networks.

The CRIA had filed the motion as a prerequisite to suing those people for copyright infringement, much like its American counterpart, the Recording Industry Association of America, has been doing for much of the past year.

The crux of CRIA’s motion was about privacy, particularly the circumstances under which Canadian Internet service providers (ISPs) would be forced to divulge the identity of their subscribers in response to allegations of illegal file swapping. In a highly anticipated decision, Canada’s Federal Court denied the CRIA motion and in doing so, issued a decision that went far beyond the core privacy issue and greatly influenced the country’s copyright law.

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service," wrote Judge Konrad von Finckenstein as part of his reasoning. "Thus, downloading a song for personal use does not amount to infringement."

"I cannot see 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," von Finckenstein added. "In either case the preconditions to copying and infringement are set up but the element of authorization is missing."

While the Federal Court ruling affects only the law within the country of Canada, it is sure to be studied by lawyers in other countries, including lawyers in the United States, who may seek to use some of the decision’s legal theory in future court battles with the entertainment industry.

The Federal Court decision comes just days after News.com reported that the record industry had begun to take its fight against file sharing international.

This decision was the second major copyright ruling issued by a Canadian court this month. On March 4, the Canadian Supreme Court ruled that the Law Society of Upper Canada, the self-governing body for lawyers in Ontario, does not infringe copyright when a single copy of a reported decision, case summary, or statute is made by the Great Library in accordance with its access policy. The Court added that the Law Society did not authorize copyright infringement by maintaining a photocopier in the Great Library. (The Library had posted a notice warning that it would not be responsible for any copies made in infringement of copyright.)

When the Supreme Court decision was announced, Michael Geist, a law professor at the University of Ottawa, made a keen observation about the evolution of Canadian copyright law.

"Copyright is no longer viewed as being primarily about large-scale commercial infringement claims that do not resonate with the average person," wrote Geist in a Toronto Star story. "Rather, copyright is now very personal, focusing on the work, creativity, and activities of millions of individuals � including judges � who will increasingly question standards of what is right and wrong through the lens of their own actions.

"As society has shifted in its view of copyright, so, too, have Canadian courts," continued Geist. "The result is a genuine revolution in the state of Canadian copyright law that will manifest itself long after the current battle over peer-to-peer file sharing has been resolved."

UPDATE: Faultline. Music Biz Appeals Canada File Sharing-is-Legal Ruling. The Register. April 19, 2004.

Janet McFarland. Ruling Deals Blow to Music Industry. The Globe & Mail. April 1, 2004.

John Borland. Judge: File Sharing Legal in Canada. News.com. March 31, 2004.

Matt Hines. File-Sharing Lawsuits Go Abroad. News.com. March 30, 2004.

Canadian Federal Court. BMG Canada, Inc. v. John Doe. 2004 FC 488. March 31, 2004.

Michael Geist. Low-Tech Case Has High-Tech Impact. Toronto Star. March 22, 2004.

Canadian Supreme Court. The Law Society of Upper Canada v. CCH Canadian Limited. 2004 SCC 13. March 4, 2004.