The Canadian Recording Industry Association (
CRIA
)
filed suit in February last year, hoping to follow in the footsteps
of the US music industry in targeting high volume file-sharers –
those who distribute and download copyrighted works over P2P
services such as Kazaa.
In the US, the industry uses software to digitally identify a
user who is offering to distribute copyrighted files, and then
serves a subpoena on the user's ISP, requesting the name and
address of the individual whose account was being used to
distribute copyrighted music.
The
CRIA
adopted the same method, targeting 29
file-swappers, but in March last year a Federal Court refused to
grant the subpoenas, arguing that the industry had not put forward
sufficiently persuasive evidence to overturn the privacy concerns
of the case.
The
CRIA
appealed, but lost the case on Thursday
when the Court of Appeal agreed that the evidence provided by the
CRIA
was insufficient.
However, the Court did not rule out similar successful actions
in the future, and set out what it thought was necessary to force
the identification of file-swappers. Said the Court:
"It is sufficient if they show a bona fide claim, i.e. that they
really do intend to bring an action for infringement of copyright
based upon the information they obtain, and that there is no other
improper purpose for seeking the identity of these persons."
But it warned, "caution must be exercised by the courts in
ordering such disclosure, to make sure that privacy rights are
invaded in the most minimal way."
The Appeal Court then considered another controversial aspect of
the Federal Court's decision last year – that merely making music
files available on one's computer does not constitute copyright
infringement under Canadian law.
At the time, commentators had described the ruling as creating a
"haven" for pirates.
The Appeals Court found that such a finding was premature. As a
result, the question of whether file-sharing infringes copyright in
Canada remains unclear.
The
CRIA
welcomed the ruling.
"The court has clearly articulated the evidentiary standards
that we need to meet and we are satisfied that we can meet those
standards in future applications. Large-scale music swappers should
know that they can and will be held accountable," said
CRIA
President Graham Henderson.
Speaking to Reuters, he warned that the industry was likely to
be pursuing "fresh targets", rather than the original 29
file-sharers.
Privacy activists, the Canadian Internet Policy and Public
Interest Clinic (CIPPIC), also claimed victory.
"This is a landmark privacy decision that affects all
Canadians," said Philippa Lawson, CIPPIC's Executive Director. "The
court has reaffirmed the importance of on-line privacy and
confirmed that those seeking to sue internet users cannot uncover
the anonymity of their targets on the basis of mere allegations.
Instead, plaintiffs must provide solid and timely evidence that
supports a bona fide claim against the alleged wrongdoer".
