A momentous decision was released today by the Honourable Justice von Finckenstein of the Federal Court of Canada in BMG Canada Inc. v. Doe (decision here). The Court held that ISPs will not be compelled by the Court to disclose the names of subscribers alleged be involved in music file swapping. (see previous posts on this case here, and on the motion, here). This spells the end of RIAA type actions against music file sharers in Canada (subject to the inevitable appeal).
There were several important findings that are going to have a significant impact on technolegal development in Canada.
In dealing with whether the CRIA had met the onus of establishing a prima facie case, the Court held that "neither the affidavits nor the crossexamination of Mr. Millin provide clear and comprehensive evidence as to how the pseudonyms of the KaZaA or iMesh users were linked to the IP addresses".
The Court also held that "downloading a song for personal use does not amount to infringement" relying on Copyright Board of Canada, Private Copying 2003-2004 decision, 12 December 2003 at page 20.
The big issue to be addressed was whether having a file in a shared directory amounted to distributing or authorizing infringement. The Court held:
"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user via a P2P service."
As had been suggested in an earlier e-Lawg post, CCH Canada Ltd v. Law Society of Canada had a significant impact on the development of law in this area:
"As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement. 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 linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing."
"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."
The Court also addressed the issue of privacy and anonymity, relying on Irwin Toy v. Doe (2000), 12 C.P.C. (5th) 103 (Ont. S.C.J.) stated at paras. 10-11:
"Implicit in the passage of information through the internet by utilization of an alias or pseudonym is the mutual understanding that, to some degree, the identity of the source will be concealed. Some internet service providers inform the users of their services that they will safeguard their privacy and/or conceal their identity and, apparently, they even go so far as to have their privacy policies reviewed and audited for compliance. Generally speaking, it is understood that a person's internet protocol address will not be disclosed. Apparently, some internet service providers require their customers to agree that they will not transmit messages that are defamatory or libellous in exchange for the internet service to take reasonable measures to protect the privacy of the originator of the information.
In keeping with the protocol or etiquette developed in the usage of the internet, some degree of privacy or confidentiality with respect to the identity of the internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy. As far as I am aware, there is no duty or obligation upon the internet service provider to voluntarily disclose the identity of an internet protocol address, or to provide that information upon request."
This is a huge loss for the recording industry. It will no doubt be appealed and we will likely see significant lobbying efforts for legislative changes. But for now, it appears that people in Canada are free to download music for personal use.
8:40:37 PM 
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