- 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 188.8.131.52 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.