Record labels dealt blow

DAVID CANTON - For the London Free Press - June 25, 2005 Read this on Canoe

Individuals who enjoy downloading music for free off the Internet will be pleased to learn record labels were dealt another blow in their attempt to eliminate online music swapping -- this time in the Federal Court of Appeal. But the issue is not over yet.

In the highly anticipated decision of BMG Canada Inc. v. John Doe, the Federal Court of Appeal dismissed the Canadian Recording Industry Association's appeal of a March 2004 Federal Court ruling.

This case arose as an application to compel Internet service providers to disclose the identities of numerous users who were allegedly involved in a large volume of music file-sharing over the Internet. The plaintiffs claimed each of these unidentified defendants had in excess of 1,000 songs on their home computers and used file-sharing programs to share those files with others. The plaintiffs could not identify these Internet users because they operate the software under pseudonyms.

Some ISPs, including Shaw Communications Inc., Rogers Communications Inc., BCE Inc. and Telus Corp., refused to disclose the identities of their users as ISP account holders expect their identities will be kept confidential. Disclosing such information would be a violation of their privacy. This expectation is based on the Personal Information Protection and Electronic Documents Act and on their ISP account agreements. Under PIPEDA, however, an ISP may disclose personal information by court order.

The court refused to order the various ISPs to reveal the identity of the 29 users accused of sharing thousands of CRIA's music files, as it was held the recording industry did not present ample evidence to allow it to go after music file-sharers in court.

This decision demonstrates the growing concern for personal privacy in Canada, especially where Internet use and technology is concerned. The court focused much of its discussion on the privacy issues associated with disclosing the identities of those individuals. The court also believed this case was more about privacy than music downloading.

The court acknowledged there are competing interests in protecting copyright works and in maintaining citizen privacy, however it emphasized privacy rights should take priority over copyright claims. Although the court noted the importance of intellectual property protection, it emphasized in the Internet age "the potential for unwarranted intrusion into personal lives is now unparalleled."

The court of appeal was more favourable toward CRIA's position on the issue of copyright infringement.

It is reasonably clear it is legal to download music in Canada. The judge in the original decision said it was legal to upload -- but that part of the decision is controversial.

The court of appeal's only comment on the legality of the download/upload issue was to comment the judge should not have gone into that. While the court of appeal agreed the court should not have given the names under the circumstances, it did set out the circumstances under which it would give the names.

The ruling was not a win for either party. Both sides claim a partial victory as this decision did not end the issue. In fact, the door has been left open for more CRIA lawsuits against music-swappers