CRIA Insists Canadian File-Sharing Problem a “Fact”

Canadian recording industry lawyer reacts to recent comments by Canadian law professor Dr. Michael Geist who recently wrote an op-ed debunking several file-sharing myths.

Last Friday I reported on an excellent op-ed piece written by noted Canadian law professor Michael Geist in which he said it was “time to slay Canadian file-sharing myths,” and he does just that.

Without skipping a beat, Canadian Recording Industry Association (CRIA) lawyer Richard Pfohl has responded with an article titled “It’s Not Called Pirate Bay for Nothing.”

He says that Geist “fabricates more myths than he dispels, and misinforms Star readers about the legality of unauthorized downloading.”

Oh really? Geist made two points, both of which couldn’t have been any clearer.

“The two myths that dominate debate are: all file-sharing is legal in Canada and, perhaps as a consequence of this, that Canada leads the world in illegal file-sharing activity,” he said. “Neither claim is true.”

Geist notes that since Canadian law features a private copying exemption funded by a levy on blank media, the courts have hinted that that the levy could also allow for a private copying exemption to for non-commercial music downloads as well.

“The law therefore opens the door to some legalized music downloading, but it does not cover other content (movies or software) or the uploading of any content,” he adds.

Pfohl counters that illegal downloading is not legal in Canada.

“The copyright law conclusions in the case he cites were overturned on appeal,” Pfohl writes. “In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn’t apply to downloads made to hard drives.”

“Widespread misunderstanding of this legal fact illustrates precisely why digital copyright reform, and the legal clarity it would provide, is needed in Canada.”

But, with uploading, or the unauthorized distribution of content, already illegal is copyright reform really necessary in the way that Pfohl thinks? If anything copyright reform is necessary to address the non-commercial distribution of music and other content. Copyright laws were written in a pre-digital age in which people tried to profit from the creative works of others and that is certainly not the case when it comes to P2P and file-sharing.

“Geist also strains credulity when arguing that the file sharing on unauthorized sites might be ‘legal or illegal,’ as though there were any doubt about this,” continues Pfohl. “Courts around the world have found that upwards of 95% of all such file sharing involves pirated material and therefore have consistently ruled against unauthorized file-sharing services. They don’t call it Pirate Bay for nothing.”

Again, Pfohl takes liberty with the facts. He slams Swedish BitTorrent tracker site the Pirate Bay, and intimates about some undisclosed court findings, but in the actual Pirate Bay trial the site presented a study of some random 1000 torrent files from the site which showed that around 70-80% of the content was non-copyrighted.

So, in fact the opposite of what Pfohl says is actually true.

Pfohl is also angry that Geist cited a study by its own anti-piracy firm BayTSP to prove that Canada isn’t the hotbed of illegal file-sharing the CRIA thinks you need to believe it is in order to frighten politicians into increased copyright enforcement.

Geist reiterated a recent BayTSP report on the state of worldwide P2P use which concluded that Canada dropped from 7th to 10th place in its country by country measurement of total copyright infringement notices sent to alleged file-sharers.

“As for the BayTSP report Geist cites, it measured not file-sharing but identified copyright ‘infringements’ of content belonging to that particular company’s clients,” he says. “It is impossible to draw any meaningful, broader conclusion from such a narrow and incomplete data set.”

Pretty interesting that the CRIA isn’t interested in an “incomplete data set.”

How about the fact the CRIA perpetuates the myth that Canada has the largest per-capita file-sharing population in the world? It bases the conclusion on a nearly 6yo study that examined file-sharing in the 30 member Organization for Economic Co-operation and Development (OECD). Never mind that the study didn’t take into account whether the file-sharing activity of connected peers was legal or illegal, it also didn’t measure the more than 150 non-OECD countries that exist in the world!

How’s that for using an “incomplete data set?”

Pfohl sums up his article by saying that Geist “should check his own facts first” before trying to debunk file-sharing myths, but ironically the CRIA seems to make up facts as it goes along.

I doubt, for example, that it’s ever read the study conducted by its OWN GOVT that found illegal file-sharing actually increases music consumption. “The Impact of Music Downloads and P2P File-Sharing on the Purchase of Music,” commissioned by Industry Canada, a ministry of the Canadian federal government, concluded that every 12 P2P downloaded songs, music purchases increase by 0.44 CDs.

Maybe it’s Pfohl and the CRIA that should check its facts.

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