stret_ford
September 11th, 2003, 09:20 AM
Toronto Star September 10/2003
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&call_pageid=971358637177&c=Article&cid=1063231812034
Canadian file sharers' risk low
`Infinitesimally small' odds of suits, lawyer says
Biggest barrier is determining who to take to court
TYLER HAMILTON
TECHNOLOGY REPORTER
Canadians who download music for free from the Internet should be cautious but not overly worried about the U.S. recording industry's recent legal crackdown on individual file traders, legal experts say.
Lawyers and academic observers argue that legislative differences between Canada and the United States and a host of practical issues will likely dissuade the Canadian recording industry, which has far fewer resources than its U.S. counterpart, from taking individual music sharers to court.
"The odds of being sued are infinitesimally small, but it certainly will make people think twice, and that alone may stop a lot of people from the activity," said Michael Geist, a professor of Internet law at the University of Ottawa and technology counsel for Osler, Hoskin & Harcourt LLP.
Cross-border deterrence may be the best our recording industry hopes to achieve. Geist said one of the biggest barriers to launching a successful lawsuit in Canada is trying to figure out who should be sued.
South of the border, a fast-track provision in the Digital Millennium Copyright Act, or DMCA, makes it possible for copyright holders to subpoena subscriber information from Internet service providers, or ISPs, without obtaining a judge's approval.
This means the Recording Industry Association of America, or RIAA, can get the personal information of a file-sharer simply on the suspicion of piracy, creating a more efficient process for hunting down alleged music pirates.
"To do so in Canada would be much more difficult," said Geist, explaining that strong privacy laws and the lack of DMCA-like legislation in this country creates a much higher hurdle. "It's not a slam-dunk that an Internet service provider (here) would supply that information."
New York-based phone giant Verizon Communications Inc. challenged the DMCA provision on the grounds of consumer privacy, but a court upheld the law and the company was required to hand over its customer data. Since that decision, which is under appeal, the recording association began a mass crackdown by sending out thousands of subpoenas to ISPs.
On Monday, the association pounced. The organization sued 261 alleged music-swappers and threatened thousands more. A grandfather who hardly uses his computer and a 12-year-old girl were among those sued. The mother of the girl, Brianna LaHara, settled for $2,000 (U.S.), an amount that a file-swapping trade group has agreed to cover.
Verizon, U.S. telephone carrier Pacific Bell and NetCoalition, an industry trade group representing companies such as Yahoo, continue their fight against the association's methods. Without these powers, the recording association wouldn't be acting the way it is. Given that these powers aren't available in Canada, chances are remote that mass lawsuits are around the corner.
But even if the Canadian recording industry was successful in tracking down the identity of suspected music pirates, it's unclear whether any legal challenge would succeed. That's because the federal Copyright Act was amended in 1997 to create a levy on all blank recordable media, essentially allowing all Canadians to legally copy music as long as it's for personal use.
"When they did that, it meant it was legal for me to buy a CD and copy it for my own use," said David Canton, a lawyer with Harrison Pensa LLP in London, Ont. and co-author of Legal Landmines In E-commerce.
"It's also legal for you to lend me your CD and for me to copy it for my own use. So in Canada, it's my belief — and this hasn't been tested in court — that it would be legal for people to download."
Still, he said people who download music would likely be treated differently from people who make songs available on the Internet so that other people can download them. The language of the act forbids "distributing, whether or not for the purpose of trade."
The big question that a Canadian court would have to decide is whether a user of Kazaa, Morpheus or similar services, by creating a folder on their PC from which other users on the Internet can download songs, is actively and knowingly engaging in distribution.
"As long as Canadians don't provide any files and are only downloading, the theory is that the private copying exemption would cover that activity," said Geist. "It comes down to whether you're authorizing someone else to make a copy."
Kelly Gill, an intellectual property lawyer with Gowling Lafleur Henderson LLP in Toronto, said such a situation was not contemplated in the levy and, despite legislative ambiguity, goes against the spirit of the law.
He's not convinced that Canadians who just download free copyrighted music are more protected by the law. However, he agreed that the recording industry needs to define the legal boundaries more clearly with a test case."I cannot see anyone doing a mass approach (here) without testing it," he said.
http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&call_pageid=971358637177&c=Article&cid=1063231812034
Canadian file sharers' risk low
`Infinitesimally small' odds of suits, lawyer says
Biggest barrier is determining who to take to court
TYLER HAMILTON
TECHNOLOGY REPORTER
Canadians who download music for free from the Internet should be cautious but not overly worried about the U.S. recording industry's recent legal crackdown on individual file traders, legal experts say.
Lawyers and academic observers argue that legislative differences between Canada and the United States and a host of practical issues will likely dissuade the Canadian recording industry, which has far fewer resources than its U.S. counterpart, from taking individual music sharers to court.
"The odds of being sued are infinitesimally small, but it certainly will make people think twice, and that alone may stop a lot of people from the activity," said Michael Geist, a professor of Internet law at the University of Ottawa and technology counsel for Osler, Hoskin & Harcourt LLP.
Cross-border deterrence may be the best our recording industry hopes to achieve. Geist said one of the biggest barriers to launching a successful lawsuit in Canada is trying to figure out who should be sued.
South of the border, a fast-track provision in the Digital Millennium Copyright Act, or DMCA, makes it possible for copyright holders to subpoena subscriber information from Internet service providers, or ISPs, without obtaining a judge's approval.
This means the Recording Industry Association of America, or RIAA, can get the personal information of a file-sharer simply on the suspicion of piracy, creating a more efficient process for hunting down alleged music pirates.
"To do so in Canada would be much more difficult," said Geist, explaining that strong privacy laws and the lack of DMCA-like legislation in this country creates a much higher hurdle. "It's not a slam-dunk that an Internet service provider (here) would supply that information."
New York-based phone giant Verizon Communications Inc. challenged the DMCA provision on the grounds of consumer privacy, but a court upheld the law and the company was required to hand over its customer data. Since that decision, which is under appeal, the recording association began a mass crackdown by sending out thousands of subpoenas to ISPs.
On Monday, the association pounced. The organization sued 261 alleged music-swappers and threatened thousands more. A grandfather who hardly uses his computer and a 12-year-old girl were among those sued. The mother of the girl, Brianna LaHara, settled for $2,000 (U.S.), an amount that a file-swapping trade group has agreed to cover.
Verizon, U.S. telephone carrier Pacific Bell and NetCoalition, an industry trade group representing companies such as Yahoo, continue their fight against the association's methods. Without these powers, the recording association wouldn't be acting the way it is. Given that these powers aren't available in Canada, chances are remote that mass lawsuits are around the corner.
But even if the Canadian recording industry was successful in tracking down the identity of suspected music pirates, it's unclear whether any legal challenge would succeed. That's because the federal Copyright Act was amended in 1997 to create a levy on all blank recordable media, essentially allowing all Canadians to legally copy music as long as it's for personal use.
"When they did that, it meant it was legal for me to buy a CD and copy it for my own use," said David Canton, a lawyer with Harrison Pensa LLP in London, Ont. and co-author of Legal Landmines In E-commerce.
"It's also legal for you to lend me your CD and for me to copy it for my own use. So in Canada, it's my belief — and this hasn't been tested in court — that it would be legal for people to download."
Still, he said people who download music would likely be treated differently from people who make songs available on the Internet so that other people can download them. The language of the act forbids "distributing, whether or not for the purpose of trade."
The big question that a Canadian court would have to decide is whether a user of Kazaa, Morpheus or similar services, by creating a folder on their PC from which other users on the Internet can download songs, is actively and knowingly engaging in distribution.
"As long as Canadians don't provide any files and are only downloading, the theory is that the private copying exemption would cover that activity," said Geist. "It comes down to whether you're authorizing someone else to make a copy."
Kelly Gill, an intellectual property lawyer with Gowling Lafleur Henderson LLP in Toronto, said such a situation was not contemplated in the levy and, despite legislative ambiguity, goes against the spirit of the law.
He's not convinced that Canadians who just download free copyrighted music are more protected by the law. However, he agreed that the recording industry needs to define the legal boundaries more clearly with a test case."I cannot see anyone doing a mass approach (here) without testing it," he said.