So, as I said, Isaac found the ruling and here are my notes:
- The nature of the ruling is based on the form of the question before the Federal Court of Canada. The Canadian record industry sought an order under the Federal Rules of Court for the disclosure of 29 internet users they claim 29 IP addresses to file share through 5 named Internet Service Providers. They claim each of these 29 have downloaded over 1,000 files each using KaZaA and iMesh.
- The test that must be applied also had to be worked out by the magnificently named judge, Konrad von Finckenstein. The Court required the consideration of Canada's personal information protection law, PIPEDA, as well as our Copyright Act in addition to the particular rules of the Court to employ when someone wants to sue someone who is unknown. The test for that is set out in paragraph 13.
- The Court then had to apply the test to the evidence to determine whether enough information was before the court. The evidence in support of the test was found, at paragraph 18, to be in large part hearsay:
There is, thus no evidence before the Court as to whether or not the files offered for uploading are infringed files of the plaintiffs.
The record industry also failed to link the pseudonyms and the IP addresses so......it would be irresponsible for the Court to order the disclosure of the name of the account holder of IP address 24.84.179.98 and expose this individual to a lawsuit by the plaintiffs.
There was also no evidence of an infringement of copyright presented by the record industry - the court found that placing a file in your share folder is neither sending out a copy or advertising that they are available for copying and that "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." At paragraph 31, the Court also held that there was no evidence that the record industry had no other practical source of information about the downloaders other than the Internet Service Providers. - The Judge also made some findings in law and fact. The Court held at paragraph 28 that exclusive right to make available is not part of Canadian copyright law. The Court held at paragraph 34 that gathering IP address use information is a difficult task for an ISP and that the older it is the more unreliable it becomes and it will never indicate the actual computer user only the account holder which might be in institution or a local network of many users. The Court also held at para 36 that the protection of privacy is of utmost importance to Canadian society and that while this has not yet in itself barred a request for this kind of disclosure, it must be considered.
- In the end, the Court found at paragraph 43 that the record industry had not established the public right to disclosure outweighs the privacy concerns "in light of the age of the data".
So you can see the Canadian Record Industry Association may have itself to blame for not putting the right information on the table, not getting the right affidavits filed by the right parties. As a result the Court was given the opportunity to make some statements about the nature of file sharing that are going to be somewhat difficult for them to overcome. The biggie is the observation at paragraph 28 of the ruling that placing a file in your share is not against Canadian law as we have yet to implement the World Intellectual Property Organization Performances and Phonograms Treaty (WPPT) 20/12/96 (CRNR/DC/95, Dec.23, 1996).
By the way, here is your own copy of the treaty. Here are the countries which have signed up: other than the USA, not one western nation has signed it. So...if you are Stateside, in Togo or Jordan or...umm... Saint Lucia - WATCH OUT!!! But if you are in Canada, not likely this aspect of the ruling is going to change soon.
Comments
Ben - March 31, 2004 10:10 pm
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 - April 1, 2004 2:03 pm
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 - April 1, 2004 3:02 pm
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.