February 13, 2004 2:00 PM PST

File-swapping lawsuits loom in Canada

The Canadian music industry is going to court to seek the identities of 29 online file swappers, in preparation to filing lawsuits similar to those that have targeted hundreds of U.S. computer users.

The Canadian Recording Industry Association said on Friday that it had filed court requests earlier this week that seek identifying information for subscribers at five Canadian Internet service providers. The information gained from those requests would be used to file copyright infringement lawsuits against people who had made large amounts of music available for upload, the group said.

"These are individuals who are each illegally distributing hundreds--if not thousands--of music copyright files to millions of strangers," CRIA President Brian Robertson said in a statement. "Clearly, these people are blatant exploiters of artists' careers and their music and have no apparent interest in where the music is going to come from in the future."

The Canadian record label group had previously warned that it was likely to follow its U.S. counterpart's legal example, but decisions by copyright authorities had clouded the file-swapping picture in Canada.

In December, the Copyright Board of Canada, the country's top copyright regulators issued a ruling in which they said downloading from file-swapping services such as Kazaa appeared to be legal under Canadian law, since the songs were intended for noncommercial personal use. Uploading, or sharing with others through such services, did not merit the same legal shield, they said.

At the time, CRIA lawyers said they disagreed with the regulators' decision, which came in the context of a ruling on what level of fees to place on blank recording media--including MP3 players--in order to compensate music labels and artists for piracy. But in their current legal push, the Canadian label group does appear to be targeting only uploaders, rather than downloaders.

Like the Recording Industry Association of America, the Canadian industry group will only be seeking judgments against the most "egregious" examples of piracy, Robertson said.

The U.S. lawsuits have drawn the world's attention, as the RIAA has tried to halt massive online file trading with copyright infringement lawsuits against individuals. More than 900 suits have been filed since September. In January, RIAA executives said 233 suits had been settled, for an average of about $3,000 in damages.

Courts have forced the American group's strategy to change somewhat, however. In its initial suits, the RIAA used an unconventional process to obtain subpoenas for ISP subscribers' identities before any case had been filed. That process was subsequently blocked by an appeals court, and in its latest round of suits, the RIAA was forced to sue hundreds of anonymous "John Doe" individuals, with the promise of obtaining their identities later though more conventional legal means.

The CRIA may run into some difficulties in its requests, however. Already, Shaw Communications, one of the ISPs the CRIA court requests target, is planning to challenge the attempt to identify its subscribers, citing a recently passed federal privacy law.

"We have grievous concerns about our responsibilities under the privacy act," Shaw President Peter Bissonnette said.

Even if the country's privacy laws--which do allow for identifying individuals under a court order--don't provide a shield, Bissonnette said Shaw does not maintain logs of which Internet address was assigned to which account at any given time in the past. That means that the CRIA may not have any way to establish which subscribers were connected to the Shaw network when file swapping occurred.

In response to Shaw, the CRIA's Robertson said the Canadian Privacy Act had well-established procedures for the type of court order his organization is seeking, and the law "does not protect people who are breaking the law." He said he was not familiar with Shaw's internal record-keeping process but would be surprised if the records the label group is seeking were not available.

"Certainly, the other four (ISPs involved) seem to retain this information for a certain amount of time and have reasonable access to it," Robertson said.

A hearing is scheduled on the issue for Monday in Canadian federal court.

 

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