Gen X at 40

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Ben -

Thanks for the analysis Alan. As soon as I saw the CB and Canoe articles early this afternoon I wondered what you'd have to say about it.

Jeremy Schwartz -

You may want to check out the factum of the 'defendent' offered by the CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (CIPPIC)at Ottawa U, who were granted intervenor status.

http://www.cippic.ca/uploads/images/48/Memorandum_final_12pt.pdf

The plain english argument that they made is that the invasion of an ex parte defendant's privacy must be per, Charter values, a high threshold test... wherein the Plaintiff must establish an "extremly strong" prima facia case... especially in light of what the linking and disclosure of a persons IP and Real world name could effect upon their otherwise anonymous activities online (ie cancer support groups... you get the point).

The court did not defend copyright infringement here... it defended a Canadian's right to anonymously use the net (not including criminal actions).

This is an important distinction. The plaintiff wanted access to information about a plaintiff that it did not know existed, alledgedly sending files to another unknown person, WITHOUT PROOF that the filed were what they were named (I can send a copy of this text file to my mother and call it Get-your freak on by missy elliot, even change it to an MP3 file type...is that proof of uploading copywritten material?).

Without copies of the actual data transfered for analysis and confirmation, how can a Plaintiff of this type ever make out a strong prima facia case.

If that case is not essentially air tight, how can the court justify the misuse of its authority to grant an invasive order that may detrimentally effect the as yet unknown defendants in ways that are irreversable? *** All before the defendant has even been notified?

Sorry, but the the ends of furthering the pursiut of a civil claim for ALLEDGEDLY distributing (uploading passively may not constitute active distribution under the copyright act - close any libraries lately?) ALLEDGEDLY copywritten content cannot in view of the Charter be paramount to freedom of expression and privacy rights.

You cannot go on a fishing expedition carelessly tossing your hook into the pond of ISP's because you think you saw the shadow of a fish.

Alan -

Thanks for your view, Jeremy. If you are the same Jeremy Schwartz of last October - and indeed of the Pilot House - I was hoping to hear your point of view, you being a current law student.

I think that this is an exciting ruling from both the privacy and the technology angles. Despite being a big booster for PIPEDA, having presented on it for years, I have a feeling that if the recording industry had had affidavit evidence that was current and if the treaty discussed had been in place, the privacy angle would not have won the day alone. I thought the finding on the staleness of the data was really important, again for both privacy and technology reasons. As I have had occasion to check the IP numbers of posters here, I am well aware of their uselessness as a means to definitively peg individuals. The court did very well to coin the phrase "the age of the data". You will hear those words used again and again in these matters. I think the proposition that 6 month old IP addresses are in the slightest way reliable is absurd. The court has opened the door to a real requirement to define in detail the integrity of the relationship between a person and an IP address before disclosure would be allowed.