OTTAWA – The Federal Court of Appeal has dismissed a challenge from the Canadian music industry over gaining access to the names of a number of high-volume music file-swappers, but has left the door wide open for further court action.
Reading the decision, though, makes it seem like the judges thought that such file-swapping needs some deeper exploration but were bound by the rules of law to dismiss this particular lawsuit.
The Canadian Recording Industry Association had wanted Canadian Internet service providers Shaw Communications, Rogers Cable, Telus, Bell Canada and Videotron to give it the names of 29 music file sharers it says is making over 40,000 songs available for free over the Internet.
The record industry wants to go after the high-volume swappers in court to sue them for damages and stop them from giving the songs away for free.
Most of the ISPs objected on privacy grounds – and on the fact it would cost too much to track the right customers down. The large ISPs have been waiting for the courts to decide whether or not they had to give this information out since CRIA only knows the users by their on-line pseudonyms like Geekboy@KaZaA.
The three-judge decision, written by Justice Edgar Sexton, appears to have turned on affidavits the courts ruled as hearsay.
In short, CRIA hired a company called MediaSentry to monitor the web and track down the largest file swappers in Canada. However, since MediaSentry’s employees and not its president, Gary Millin, actually did the monitoring and reporting, Millin’s affidavit could not be accepted by the court.
“The affidavits filed in support of the motion were deficient… because ‘major portions of these affidavits are based upon information which Mr. Millin gained from his employees. Accordingly they consist largely of hearsay,’” says today’s decision, repeating the defendants submission from earlier this year. “…Much of the crucial evidence submitted by the plaintiffs was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed.”
Further into the decision, though, Justice Sexton takes on the privacy issue, saying just because the net can be used to swap music back and forth anonymously doesn’t mean people should be able to hide behind privacy laws to do it.
“Modern technology such as the Internet has provided extraordinary benefits for society, which include faster and more efficient means of communication to wider audiences,” it reads. “This technology must not be allowed to obliterate those personal property rights which society has deemed important. Although privacy concerns must also be considered, it seems to me that they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode those rights.
“Thus, in my view, in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action.”
Justice Sexton then also wrote that the lower court judge went too far in saying that making a song or songs available for download doesn’t violate the Copyright Act.
“The Motions Judge similarly made findings that there had been no ‘distribution’ within the meaning of the Copyright Act so as to constitute infringement. He said that to have distribution, there must be a ‘positive act by the owner of the shared directory’, implying that making copies ‘available on their shared drives’ is not a positive act,” explains the decision.
“It is not clear that the legislation requires a ‘positive act’ and no authority is cited in support of his conclusion.
“The Motions Judge found no evidence of secondary infringement contrary to subsection 27(2) of the Copyright Act because there was ‘no evidence of knowledge on the part of the infringer.’ This ignores the possibility of finding infringement even without the infringer’s actual knowledge, if indeed he or she ‘should have known’ there would be infringement.”
Justice Sexton then all but encourages the music industry to take another stab at this, saying: “I… wish to make it clear that if this case proceeds further, it should be done on the basis that no findings to date on the issue of infringement have been made,” it reads.
“In the result, the appeal will be dismissed without prejudice to the plaintiffs’ right to commence a further application for disclosure of the identity of the ‘users’ taking into account these reasons.”
CRIA and the ISPs have not officially responded to the ruling as yet.
www.fca-caf.gc.ca/bulletins/whatsnew/A-203-04.pdf
– Greg O’Brien
