April 2, 2004

A Canadian Federal Court Judge has basically stated that file sharing is legal in Canada. The Globe and Mail reports: "Downloading a song for personal use does not amount to infringement," Mr. Justice Konrad von Finckenstein of the Federal Court of Canada wrote in his decision. "I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory." This view may be correct in a legal sense but does not taking into the account the difference between the nature of copying physically stored and digital stored information. Photocopying a book is a tedious, expensive and inexact process. For many books or even long magazine articles it is more difficult and more costly than simply buying the item in question. Copying a file can be quite simple, free and does not produce any loss of quality. Any ruling needs to account for these differences. The Judge also seems to take an odd view of what is distributing files. The ruling states in section [28]: The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives. This reasoning is wrong. All file sharing programs must in fact either make a listing of what files are in the user’s shared folder available to a central or distributed indexing system or respond to query requests when accessed by other instances of the application. If this advertising did not take place it would be impossible to tell what files where present in a shared folder and therefore impossible to download any of the. Furthermore when a person starts to use a file sharing program they must explicitly copy files into a default shared folder, or specify certain files or folders are shared, such programs do not start sharing all of the contents of a computer’s file system without warning. These facts are noted in item [4] of the ruling and then completely ignored by the Judge. Expect appeals and if the ruling standing demands for more tariffs on digital media sold in Canada. 12:41:08 AM