Recordng Industry Fight Comes To Canada

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MATHEW INGRAM, Globe and Mail Update

Following through on a promise it made late last year, the Canadian Recording Industry Association has launched a court battle against digital music-swappers. Unfortunately for the CRIA, however, its fight against file-sharing may not be quite as easy as the one waged last year by its U.S. counterpart, a controversial campaign which snared teenaged honour students and retired war veterans, among others.

First, the Canadian industry has to get Internet service providers to cough up the names of the CRIA's targets, and one ISP ? Calgary-based Shaw Communications - has said it will resist that request in court. Canadian law is also not as amenable to such a requests as U.S. law, which was reworked in the late 1990s to specifically deal with digital copyright issues. And even after it identifies its targets, CRIA will still have a fight on its hands.

In December, the industry group said that it planned to follow the example set by the Recording Industry Association of America (RIAA) and sue selected Canadian file-swappers beginning sometime in 2004. ?The industry continues to be devastated by file sharing,? the CRIA's president Brian Robertson said at the time. ?It is regrettable that we'll have to take this action, but we've been forced to.?

The RIAA launched a widely-publicized legal campaign against users of popular file-sharing networks such as Kazaa and iMesh last year, hitting more than 350 individual downloaders with lawsuits accusing them of copyright violations. The campaign became somewhat controversial when it nabbed a 12-year-old honour student who lived in subsidized housing in New York, and a 71-year-old grandfather who said he had never heard of Kazaa.

The U.S. industry group's continuing battle ? 532 more lawsuits were launched against file-sharers just last month ? got a boost initially from the Digital Millennium Copyright Act (DMCA), which was brought in by former President Bill Clinton's administration. Under the act, record companies were able to force Internet service providers to give them the names and addresses of specific file-swappers without having to go before a judge and apply for a formal court order.

In December, however, a Federal Court of Appeals judge ruled that this ?streamlined? DMCA procedure was not applicable to the downloading and sharing of digital music files, but was designed for cases in which copyright-infringing material was being stored by an ISP on its own servers. As a result, the RIAA has had to go through the time-consuming process of filing ?John Doe? lawsuits in order to force ISPs to identify specific users. But still the digital battle continues.

It remains to be seen what kind of response Canada's Federal Court will have to the CRIA's request. Judge Konrad Von Finckenstein ? the former head of the federal Competition Bureau ? postponed his decision until March 12, saying he needed more time to study the details of the case.

Shaw Communications has said it plans to fight a court order to identify its customers if one is issued. The company argues that because it regularly changes the IP (Internet protocol) addresses it gives to customers, identifying a specific user based on his or her IP address would be problematic, and potentially an invasion of an innocent person's privacy. Other ISPs such as Rogers, Telus and Bell Sympatico have not said what their response will be if a court order is issued.

That's just part of the battle the CRIA is heading into. Even if Judge Von Finckenstein orders the ISPs to reveal the names of individual customers ? which some observers believe is not at all a sure thing, given the traditional strength of privacy rights in Canadian courts ? and even if the majority of those sued decide to settle out of court (as most have in the U.S.), at some point the industry will have to fight an actual court battle.

The main complicating factor for the CRIA is that under Canadian law downloading of music from the Internet ? even music a user has not actually paid for ? may turn out to be legal, because of the copyright levy that Canadians pay on blank CDs (21 cents per disc). A ruling by the Copyright Board in December, which extended that levy to hard-drive based music players, specifically said that the downloading of music files is permitted under Canadian copyright laws.

The CRIA was quick to point out at the time that this is not a legally-binding decision, merely the opinion of the Copyright Board. However, the industry also said that it planned to focus its lawsuits on users who are sharing a lot of files ? in other words, providing them for others to download ? rather than those who have downloaded a lot (network such as Kazaa allow users to share or not share their files). The CRIA said that it would target those with more than 1,000 files.

Left out of all this, as usual, is the question of whether suing some of your biggest potential customers is the best way to promote your industry. While the RIAA claims its campaign has slowed the popularity of downloading, other surveys show little or no impact ? and some argue that the industry has actually increased the chances that music lovers will stop buying CDs and download music instead.

All the CRIA has at this point are unanswered questions. Will the court order ISPs to provide names of file-sharers? Will they resist such an order? And if a case proceeds, will the court decide that downloading is legal but sharing is not? Although volunteers may be hard to come by, it might be worth having a test case just so Canadians know exactly what is legal and what isn't.