March 31, 2004 11:33 AM PST

Judge: File sharing legal in Canada

Sharing copyrighted works on peer-to-peer networks is legal in Canada, a federal judge ruled on Wednesday, handing the record industry a sharp setback in its international fight against file swappers.

Canadian record labels had asked the court for authorization to identify 29 alleged file swappers in that country, in preparation for suing them for copyright infringement, much as the Recording Industry Association of America (RIAA) has sued more than 1500 people in America.

But the judge denied that request. In a far-ranging decision, the court further found that both downloading music and putting it in a shared folder available to other people online appeared to be legal in Canada.


What's new:
A judge in Canada rules that sharing copyrighted works on peer-to-peer networks is legal, a major setback to the record industry.

Bottom line:
The ruling affects only Canada, but it could have wider repercussions if it stands. The recording industry has filed hundreds of lawsuits against file swappers to lessen the amount of copyrighted material on networks such as Kazaa and Morpheus.

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"This has certainly stalled (the record industry's) current round of litigation, and...thrown into doubt whether there is infringement at all," said Michael Geist, a University of Ottawa law professor who closely follows Canadian copyright issues.

The Canadian Recording Industry Association (CRIA), which brought the case, said it did not agree with the judge's ruling.

"We are reviewing the decision received today from the trial court and expect to appeal it," CRIA General Counsel Richard Pfohl said in a statement. "In our view, the copyright law in Canada does not allow people to put hundreds or thousands of music files on the Internet for copying, transmission and distribution to millions of strangers."

The ruling affects only Canada, but it could have wider repercussions if it stands. The U.S.-based RIAA has filed hundreds of lawsuits against file swappers in hopes of lessening the amount of copyrighted material available for download through peer-to-peer networks such as Kazaa or Morpheus.

But many studies, including one this week from professors at Harvard and the University of North Carolina at Chapel Hill, have noted that computer users on peer-to-peer networks often download material across national borders.

Canada's debate over file swapping flared last December, when the country's Copyright Board, which regulates intellectual property issues, ruled that downloading songs from a peer-to-peer network for personal use--but not necessarily uploading--appeared to be legal.

The regulators cited a long-standing rule in Canada, in which most copying for personal use was allowed. To repay artists and record labels for revenue lost by this activity, the government imposes a fee on blank tapes, CDs and even hard disk-based MP3 players such as Apple Computer's iPod, and distributes that revenue to copyright holders.

At the time, CRIA attorneys said they did not agree with the Copyright Board's decision, and that they expected courts to rule differently. Last month, they launched the first step in filing lawsuit against alleged music sharers, seeking authorization from the courts to identify 29 Net users at various Internet service providers (ISPs) around the country.

In his ruling Wednesday, Judge Konrad von Finckenstein rejected that request on several grounds. In part, he said the recording industry had not presented evidence linking the alleged file swapping to the ISP subscribers that was strong enough to warrant breaking through critical privacy protections.

But he also questioned whether CRIA had a copyright case at all.

With respect to downloading, the judge accepted the Copyright Board's early decision almost without comment. But he went further, citing a recent Supreme Court decision to say that making music available online also appeared to be legal.

In that recent case, the Supreme Court ruled that libraries were not "authorizing" copyright infringement simply by putting photocopy machines near books. The libraries were justified in assuming that their customers were using the copiers in a legal manner, the high court ruled.

Finckenstein said the same rationale should apply to peer-to-peer users.

"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," Finckenstein wrote. "Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying."

Ottawa's Geist said this appeared to make uploading itself legal as well, since a peer-to-peer user--like a library--would be entitled to assume that the person on the other side of the connection was acting legally, since downloading was also legal in Canada.

The decision was hailed by Net activists on both sides of the border.

"I think it is a big victory for technology and the Internet and all the people who use technology and the Internet in Canada," said Howard Knopf, an attorney who works with the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. "The court accepted that copyright legislation has to be read as it is, not as CRIA would like it to be."

The decision is likely to spur more legislative action in Canada, however. The country has not yet ratified World Intellectual Property Organization (WIPO) treaties that contain more specific language saying that only copyright holders or their licensees have the ability to make copyrighted works available to others.

In the United States, the provisions of that treaty were implemented in the controversial Digital Millennium Copyright Act. CRIA has lobbied hard to have a similar bill introduced in Canada, but without success yet. However, the Canadian government has recently indicated that a WIPO implementation bill could be introduced and passed by the end of this year.

On Tuesday, the International Federation of the Phonographic Industry said it was filing 247 lawsuits against alleged file sharers in Denmark, Germany, Italy and Canada.


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Sounds like an April fool joke to me.....
...A bit like Google's Gmail system to rival hotmail and yahoo.(1Gb storage, yeah right) have you seen that one too? Next they will be telling us that it's not only 'legal' to download copyrighted material from file share networks, it's compulsory !!
Posted by (2 comments )
Reply Link Flag
April fool's joke? Nah, Consider that this story was all over the news yesterday morning. I doubt that the CRIA is in on it -->
<a class="jive-link-external" href="" target="_newWindow"></a>
Posted by (2 comments )
Link Flag
it's compulsory !
<a class="jive-link-external" href="" target="_newWindow"></a>
Posted by Ipod Apple (152 comments )
Link Flag
Legal in Canada
Yes! I totally agree with this ruling, and I praise Canada in the sense that this is a country that is not afraid to say it like it is - I am very proud to be Canadian. Does the Record Industry as a whole not know that suing individuals is likely to put them off buying CD's in the future? And also, do they not know that most muisc today is CRAP music? Why would I spend $15-$25 for ONE CD when all I like is 2 or 3 songs? Hello? WAKE UP CRIA AND RIAA.....get onboard with technology and stop trying to stop the inevitable - when industries stop technology, sue the public, there is something really wrong with society in general. Studies like the one done in USA at Harvard and North Carolina does prove that the P2P and file sharing is NOT what is contributing to declining CD sales - most of today's music is *****!!!!! Wake up and smell the coffee, people......
Posted by jadester (7 comments )
Reply Link Flag
Presumed guilty?
I think that the ruling in Canada makes sense. Merely having copyrighted information, which may have been obtained legally, and having it in a place where someone may retrieve it, legally or illegally, should not be a crime. The crime does not occur until some actually duplicates the copyrighted material illegally.

I am concerned that the US approach, now in committee, which makes it illegal to merely have copyrighted works in a shared directory punishable goes too far. I can image corporations with MS Office on a server somewhere in a "shared directory" getting snagged by this proposed law.

The police merely want to make their job easier, where they would no longer have to prove that any criminal activity actually occurred, but simply that it has the potential to occur. In contrast, Canada is following the right path.

Furthermore, if the music industry is already collecting a "fee" for every CD, tape, etc. sold, whether or not that CD is actually used to make an illegal copy of music, they should be satisfied with that. However, I find it amazing that an industry has been allowed to collect "fines" based merely upon the presumption that a product "might" be used for illegal duplication. I would like to see someone challenge this "fee" in court, since the underlyind basis is the presumption of illegal use, whether or not that actually occurs. Whatever happened to "innocent until proven guilty?"

Also, it seems that the Canadian people have already paid for use and copying of the music when the bought the CD, tape, etc.
Posted by GTOfan (33 comments )
Reply Link Flag
i bought an ipod and i had to pay an extra 25 dollars even though they haven't proven beyond a reasonable doubt that I have been using illegal mp3's. When i wrote to complain, i got this stupid response saying that i would do something illegal even though i wouldn't
Posted by (1 comment )
Reply Link Flag
Why This Is Good . . And Not . . .
since it was the recording industry that pressed for special fees on recording media that would be passed to them to compensate for lost sales due to copying, it's great they've been hoist by their own petard (via the loss of this case). however, recording artists and workers deserve to be properly compensated for their work. personally, i do that by not listening to riaa artists, choosing rather to buy music from indy's who offer their work at a reasonable price with reasonable "fair use" provisions over the net. i sure hope CNET gets back up pretty soon!

mark d.
Posted by markdoiron (1138 comments )
Reply Link Flag
file sharing is the future
stephen hawking said that stopping technology is impossible even with all the power in the world. BUT riaa still try.
don't they relies that file sharing is the future.
Did you ever see protestors stopping the atomic bomb or radio revolting against television
I say deal with it and change
Posted by (1 comment )
Reply Link Flag
Share, but also buy
The decision by Canada's Courts makes me feel much better about the possibility of file sharing, as I believe we should obey the laws of our land. And, if there arent any real laws governing matters to use your best moral judgment. After being reminded, through this case, that we are paying copyright royalties for blank tapes, cd's and the like, I don't have any concern about file sharing within certain parameters.

I battled myself over whether it was proper to do so. Finally, after much thought I decided to do a little on a need only basis, not on a trying to fill my hard drive up and own the world.

What I mean is the following:
With respect to copyrights, profits for the artists/designers and personal use, I believe the artists and software designer are entitled to make money and even a great deal of it for their work, but I shouldn't feel like a criminal if I want to make a duplicate copy of something for my car or second computer. I believe that when we buy something, WE BUY IT. The computer doesn't own it, nor does my DVD or CD player. I own it. Artists and software designer or their producers should allow for this in their profits and losses. And if my Mom or Dad wants a copy I will give them a copy. I am not pirating the stuff and distributing to endless people and more importantly I am not making any money off of it. Therefore, no profit, no reason for being considered a criminal unless mass distributing, perhaps. Yes, the artist/software designer may not ever sell a copy to these people, but whos to say they ever would have. On the other hand some people want original copies of items for customer support or pride. And future works by these artists/designers may be bought directly by the people who received a free copy.

With respect to File Sharing, on the principle that a consumer does buy and support these hard workers and buys legitimate copies of certain items they should be able to share them to others via P2P file sharing. If everyone who shared files owned the same number of programs, movies etc. that they shared out, in my opinion, it makes sense that the owners of the copy written material are winning. I know that this won't always happen and there will always be abusers and people who rationalize unlimited downloading with the mind set that it is legal and God put everything on the planet so who really own it, but, someone has to be paid to make money.

So, support your favourite artist of software developer and share from others. This is a win-win scenario.

Finally, to end the rhetoric of feeling like a criminal when duplicating a copy of Windows or Adobe and having to call hotlines for additional activation codes etc. let's have the authorities start putting their foot down on real PIRATERS of products. If someone is downloading anything, burning it and selling it for profit they are a thief and should be tried criminally. Same if they are sneaking a digital video in the movie theater. If the government had minimum nonnegotiable fines and mandatory probation for even the smallest of offences, this would reduce the REAL problem the industries face. Start handing out $10,000.00 minimum fines and one year of probation for a 1st offence and much larger if convicted of piracy on a larger scale.

If this was done, we wouldn't have such a concern with P2P file sharing or burning a copy of something for personal uses.

What a long winded reply, but I feel better and maybe there are others who agree, in whole or part, with my feelings on this serious issue.

Posted by toddginhamilton (1 comment )
Reply Link Flag
people like you
will eventually end up paying more..because everything is going to be taxed to make up for this great injustice. ISP, Phones, MP3 Players, Computers etc.
Posted by df561 (94 comments )
Link Flag
I am a software designer
I read the comments of the last reader, and thats the problem.

He seems to think its ok for him to make copies or for his house, one for his car etc of any music or software.

I suggest that he tries this logic in the supermarket, go an ask for a pint/liter of milk and say can i pay for one and get two, one for home and one for my office. Some how i dont think they will do it.

He also seems unaware of the law, that some software is not bought but licenced.

Its just like a lease on his car, you know you dont own that car, you just have the right to drive it. I dont hear people complaining about that.

I think the problem is that people like him and others dont appriciate how much work goes into making software, and they just see it a a free thing. And steling it does not really hurt anyone.

His and others attitudes, will cause the end of a lot of smaller software companies, then his only choice WILL be microsoft, and that will be HIS fault.

It would be an interesting exercise if his boss at work, said to him, one month, oh we dont feel like paying you, for the work you've done, I would what his response would be.

If your making copies of software that you did not pay for, then its simple, your stealing it. You dont seem to realise that there are people who make their living making software, and you know would also like to eat too.
Posted by KerryNASHT (1 comment )
Reply Link Flag
I also am a software engineer/designer...
...and I would like to point out the error you are making. There is a *huge* distinction between theft and copyright infringment. One side is criminal, the other tort, at least in the USA.

In the US, copyright law has a provision for "Fair Use", which means that you have the right to copy media for personal use (IANAL, though). This means I can make photocopies of magazine articles, books, etc, for personal use (read: non-distribution). I can make copies of my CDs. It also means I can also make copies of my purchased proprietary software applications.

Copyright infringment only happens when the media is distributed in an unauthorized manner. And that is a breach of the license of the copyright holder. Sometimes, distribution is encouraged (take, for example, the GPL or Creative Commons licenses). It all depends on how the copyright holder views it. So, this is a tort matter, *not* a criminal matter, and it is decidely *not* theft.

So your analogy breaks down. When you go to the supermarket and pay for one thing, you can take that one thing away. A physical object has passed from one person to the next. If you don't pay for something, that is theft.

You don't have that with things that fall under copyright--there is no object that changes hands. The RIAA/MPAA has used misinformation to rile up everyone, mislabelling unauthorized distribution "piracy." But the simple fact remains, unauthorized distribution of media is not theft, pure and simple, and must be dealt with in a civil court (at least in the US).
Posted by dooglio (1 comment )
Link Flag
File sharing is legal? Whew!
See, I use BitTorrent. I myself am actually unable to buy the music, mainly because I don't have a credit card, or sufficient funds. So, I have to resort to file-sharing. See, this kind of "stealing" is not completely unjustified.
Posted by tricky77puzzle (5 comments )
Reply Link Flag
unable to buy the music
<a class="jive-link-external" href="" target="_newWindow"></a>
Posted by Ipod Apple (152 comments )
Link Flag
legit torrent sites exists for content you want
<a href="#"></a> allows you tell sell torrents. Buyers get paid for sharing their purchases.
Posted by bjschnei (2 comments )
Reply Link Flag
correct link

lets try this again
<a href="#"></a>
Posted by bjschnei (2 comments )
Link Flag
Ok, I have this to say:

I completely agree with what the Government of Canada has decided: file-sharing is LEGAL.
File sharing has always been my way of getting the music I want. My main use for free music is LimeWire. I am a sole user of this community and always will be. I haven't read on anything negatively about LimeWire or its producers... I see how the CRIA and RIAA are wanting people to fork over thousands (or hundreds of thousands) of dollars for illegal file-sharing. But they are proving that people are ILLEGALLY file-sharing music is over the Internet and is completely ILLEGAL. I think LimeWire cannot be used in a BAD WAY. I mean, the music on their is legal, people have already bought the CD and uploaded the music to the database of LimeWire, thus giving the users complete accessibility: 24/7. The reason that still puzzles me is why are the Americans making such a BIG DEAL about this? You SHARE the music you have, and I guess the RIAA wants EVERYONE to pay for the music they listen to... For "select" content, like EXACT videos searches may come up dry, which is probably one of the "down sides" of LimeWire. But overall, it gives you the best possible music searches! Videos, music, w.e.
Also, I like getting music for free, and who wouldn't?
I just don't understand why producers are wanting to get money out of people who just want to use the music for their personal use? Seriously, what is the harm in that?! You are not maiking hundreds of thousands of copies of rare Ray Charles songs and shipping them to China... Or selling them without written consent. I don't see the harm in downloading music that is available and is legal. Canada is a country which strives to give the people a great place to live. Whoever that "judge" who ruled the case DENIED is an awesome person! (In my books) I think seeing that people who do not mass-distribute the music is not a criminal or committing a crime whatsoever.
1) If you download music for a CD for your car (which is what my friends do) THAT IS LEGAL!
2) If you want to send your friend some music on a CD, THAT IS LEGAL!
3) If your iPod needs some new rap music or country music, and you use LimeWire for your personal use, THAT IS LEGAL!
4) If your friend needs a song for a wedding and you can download it from LimeWire, THAT IS LEGAL!

You see, every situation here is LEGAL. But it just seems the RIAA is always cracking down on some people that are doing it legally, but they "assume" they have done it illegally. They need to see the real problem and track people that ACTUALLY share music, videos, w.e. and never pay for it and share it with people who never have to pay for it. It just doesn't get the producers the money they want to be compensated for for they lost...
Keeping it real in Victoria, BC, Canada...
Posted by Nebster66 (1 comment )
Reply Link Flag
If you only like 2 - 3 songs off a CD you can always pay for a download from iTunes. I'm not saying I don't agree with this ruling, I think it's a huge leap forward for P2P users. Also, record companies have no right to file lawsuits when they are practically stealing the music from the artists.
Posted by JimmyJazz53 (1 comment )
Reply Link Flag
There's one point no one has addressed yet, and that's about the Musician that created the song in the first place. So here's a couple of points:

The recording industry is claiming this is costing them lost income. Lets look at that statement. When a record company puts out a band's CD, they claim they are due the money because they spent the time and money on recording that artist's music. They have spent (for an easy number) $50,000 on recording, production, artwork, and packaging that product, and can only get that back if the CD sells tons of copies. The fact is, if a CD sells for, say, $20, the artist is lucky to get $1 out of that $20. (That's a 5% cut, with the label getting the other 95%) Unless you're a superstar, that's all you get.

Now...what a lot of people don't realize, is that the $50K spent by the label is called "recoverable" costs. In other words, if artist X is getting $1/CD sold, they have to sell 50,001 CD's before they see $1. The label takes every penny from the artist until they have "recovered" every penny spent on the making of the CD. So you see, on top of the $950,000 that they've earned in sales (50,000 copies x $19/ea. = $950,000) they've also taken the $50,000 that the artist has earned, to pay back the cost of making the CD. On top of all this, they get money from the industry and government, as mentioned, from the sale of blank CD's, tapes, MP3 players, etc.

So the industry is nothing more, in this sense, than a loan shark!

AS A MUSICIAN...I'm all for the sharing of music. In my humble opinion, if the record companies got off their collective duffs, and started making a decent product, people would BUY it. And by decent product, I'm not talking about the music here. I'm talking about the packaging. Make it a 8 1/2 x 11 book, perhaps include the artist's thoughts on what each song means, if they want, pictures, live shots, etc., not an insert that I need a magnifying glass to read the liner notes and lyrics (if they even have lyric sheets in some cases)...add a DVD with some live videos, or studio footage, or interviews, etc...add a cheap t-shirt with the band's logo (total cost, less than a dollar, btw)...include a nice-sized colour poster that I can pin on my wall...In other words, make it a package that I'd like to own, instead of a tiny plastic case with fonts I can't read.
Posted by AMusiciansPointofView (1 comment )
Reply Link Flag
I started recording movies from cable tv(HBO,SHOWTIME,etc) in 1981...and still do except on DVD format i have hundreds of VHS tapes with movies on them i originally taped from cable.//are these illegal to be in my possession?? if not then why are the tracks i downloaded using p2p..isn't that the same thing ???i'm not selling the tracks i downloaded,'nor am i selling the movies i recorded from HBO but one seems to be legal and the other imo something's smelling a bit greed.(RIAA)..recording HBO is in the same catagory as downloading via p2p imo/but one is illegal ONLY because ...why???
Posted by DJTEEL (3 comments )
Reply Link Flag
this is a really intersting move by Canada, and not one I saw coming, as usually it is the recording industry who benefits from this type of ruling. As a <a href="">solicitor</a> working in England it is always interesting to follow copyright law in other countries as the UK tends to be a little bit more hardline than others in this area of law.
Posted by DaveBennet (1 comment )
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