(Canada) Shocker: Judge rules recording industry cannot sue downloaders: Downloading is LEGAL

Canoe.CA ^

[SB00]

TORONTO -- In what analysts are calling a "stunning" decision, the Federal Court has ruled against a motion which would have allowed the music industry to begin suing individuals who make music available online.

Justice Konrad von Finckenstein ruled Wednesday that the Canadian Recording Industry Association did not prove there was copyright infringement by 29 so-called music uploaders.

Without the names, CRIA can't begin filing lawsuits against the alleged high-volume music traders, identified only as John and Jane Does.

It also reaffirms what the Copyright Board of Canada has already ruled -- downloading music in this country is not illegal.

Von Finckenstein said that downloading a song or making files available in shared directories, like those on Kazaa, does not constitute copyright infringement under the current Canadian law.

"No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings," he wrote in his 28-page ruling. "They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service."

He compared the action to a photocopy machine in a library. "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," he said.

[SB00]

Actually my title might be misleading: Judge ruled that sharing music online is legal (in Canada)

[MegaSilver]

Oh, my GOSH.

I HOPE the U.S. court doesn't use this as a precedent...

[goldstategop]

Kudos for Canada. It blows a big hole through fascist RIAA and MPAA's attemps to outlaw P2P.

[MegaSilver]

Kudos for Canada. It blows a big hole through fascist RIAA and MPAA's attemps to outlaw P2P.

It also made the word "theft" effectively useless.

[Chinese_American_Patriot]

Im 16 and I'm glad that downloading music from Kaaza & other P2P programs is now legal. I download music from Kaaza because most CDs today only have about 11 songs and some only have 2 or 3 GOOD songs. The RIAA are a bunch of greedy fat cats who sue poor kids for $2000/song. Kaaza is also where I can find good old songs or albums that are unreleased or not sold in Tower Records anymore.

[Integrityrocks]

It will be appealed.

[Damagro]

It also made the word "theft" effectively useless.


Why should the word "theft" apply to music consumers, when the term "price fixing" doesn't apply to music producers?

[tessalu]

I do not think that it should be legal to sue music down loaders either, and the reason is that I believe that music downloads that come into a person's own home is "attractive nuisance". The music is stuck right under a person's nose in his own home, and it is just not the same as stealing a record from a store. The music world needs to look for some other way to peddal their music.

[tessalu]

The music industry is looking for some no cost way to sell their music and a way to make all profit. It is the consumer that pays for his computer and the costs to operate it. I feel that the music industry is trying to use things that it has NOT paid for, and they do not have my sympathy.

[Houmatt]

At least there will always be people like you to prove the phrase, "You don't know what you are talking about" will never go out of style.

[MegaSilver]

At least there will always be people like you to prove the phrase, "You don't know what you are talking about" will never go out of style.

Yes, I mistakenly used the word, "theft" when "copyright violation" was the correct terminology. I have yet to completely break myself of that habit.

[Old Professer]

Why, you got a quarter on the line?

[MegaSilver]

Why should the word "theft" apply to music consumers, when the term "price fixing" doesn't apply to music producers?

No doubt the music industry is a corrupt 500-pound gorilla with a perverse, voracious, insatiable drive to screw everyone it comes across.

(But then, so's our government, at the rate it taxes and spends.)

That said, copyright violations ("theft" was the wrong word to use; old habit) are copyright violations, and the judge's opinion that putting up files on a P2P network amounted to the same thing as installing a photocopier in a library was somewhat appalling. It is perfectly clear to me what the problem is with his argument.

There are many legitimate uses for a photocopier, such as making copies of encyclopedia entries, brief selections of books to be used for research, or single articles from periodicals. There are also illegitimate uses, such as photocopying an entire book. (Of course, few people would photocopy an entire book from the library, because you usually have to pay for the photocopies, but we'll ignore that for the sake of simplicity.)

The same holds true for a peer-to-peer network (though few people use them to distribute anything BUT copyrighted material). However, when you're putting copyrighted music into shared folders, it is reasonable to assume that you are doing so for only one reason: to invite others to download them.

Bottom line: putting a photocopier in a library has potential legitimate and illegitimate uses, just as a VCR has. Putting copyrighted files into a Shared P2P folder, however, can have only one purpose: initiating the unauthorized distribution of copyrighted material.

Now, we can get into the whole privacy issue and the "Who's looking in my computer??" deal, but that's a separate issue. In this case, as far as I can tell, the court ruled that if you are a knowing party to a particular type of copyright violation, you cannot be held legally accountable for copyright violation, even if the plaintiff/prosecutor/whoever broke no laws or ethical codes in investigating said violation. I see that as a problem.

On the other hand, one could make the case that Canadians are charged exorbitant royalties on blank media to make up the music companies' "losses" from piracy, and that this ruling merely restored a proper balance to the whole issue. But I still think this is a problem, because a) the ruling made an already muddy issue even muddier, and b) a "balance" wouldn't have been necessary if the corrupt industry, backed by a still more corrupt Canadian government, hadn't sought that ridiculous and undue royalty in the first place.

[MegaSilver]

Why, you got a quarter on the line?

No, I just don't see the point of making muddy laws/codes/regulations even muddier than they already are.

[Drago]

MegaSiver sanity/logic Bump! Good Post!

[Guillermo]

First of all, punk, unless you're in Canada, this wouldn't apply to you.

Second of all, punk, you think you have the right to steal anothers property because you think they're "greedy?"

[lawdude]

"It blows a big hole through fascist RIAA and MPAA's attemps to outlaw P2P."

I just retired and am not particularly wealthy. Since you are so friggin free with the resources of others, I am sure you will send your next paycheck to me. OR, baring that, will you drop by and wash my car?

JERK

[MegaSilver]

MegaSiver sanity/logic Bump! Good Post!

Aww, thanks! :) One of my less dim moments.

[Revolting cat!]

Yes indeed, the word "theft" is a wrong one to use and anyone who uses it without knowing what it implies deserves all the flames thrown at him. Be that as it may, you say that photocopiers and VCRs have their "legitimate uses". But that is only because these muddy copyright laws were adjusted, so to speak to accomodate the VCRs and the photocopiers. The copyright violations of yesterday are suddenly "legitimate uses" today or will be tomorrow, thanks to the arbitrary laws, capricious lawmaking, corrupt politicians and technological progress. In this case, technological progress, or simply the reality of how technology is being used, is ahead of lawmaking, and way ahead of the dinosaurs of the RIAA. Automobiles too appeared on the roads and streets before comprehensive traffic laws were passed! There is no stopping this train now.

[Quick1]

In Canada (as well as here in the States), there's already a tax on blank CDRs, ostensibly to pay the artists. Why do they need to be paid twice?

Also, I'll have to check on that Harvard study cited in the article. It would be quite damning to the RIAA if it's proven that piracy doesn't hurt their sales nearly as much as they claim.

[lawdude]

"Why should the word "theft" apply to music consumers, when the term "price fixing" doesn't apply to music producers?"

Your ignorance of the law (at least US law) is showing. Best not continue and prove you're stupid!

[MegaSilver]

Yes indeed, the word "theft" is a wrong one to use and anyone who uses it without knowing what it implies deserves all the flames thrown at him.

Fair enough.

On a moral level, though, copyright violations are often indistinguishable with theft.

Be that as it may, you say that photocopiers and VCRs have their "legitimate uses". But that is only because these muddy copyright laws were adjusted, so to speak to accomodate the VCRs and the photocopiers.

You are correct.

But there are ethical and unethical uses of the VCR and the photocopier. The copyright laws were adjusted to accomodate the fair, ethical use of those devices. The unethical uses remained illegal.

And that is why I think sharing a copyrighted song over a P2P network should remain a copyright violation. It is unfair use of an otherwise legitimate product (P2P software). Whether or not you can be prosecuted for it is another story, because for them to prove it without violating your privacy would be somewhat difficult.

However, assuming there is a legitimate way of catching someone in an act of copyright violation, why SHOULDN'T that someone be held legally accountable?

[Drago]

Yeah...the title of this thread is nonsensical...of course downloading is legal, downloading (saving a copy of) Copyrighted material is the illegal part. While P2P networking is legal, I would estimate that 99.8% of the files transferred on P2P networks are illegal copies.

http://www.itunes.com
http://www.emusic.com

[Leroy S. Mort]

Justice Konrad von Finckenstein ...

"Wow! I can get married and trade music files?? WOOOT! I'm moving to Canada!" -- username: gay married music pirates.

Something tells me it's April 1st already in Canada....

[MegaSilver]

In Canada (as well as here in the States), there's already a tax on blank CDRs, ostensibly to pay the artists. Why do they need to be paid twice?

See my post #14. While I agree with you, I think the whole thing is being dealt with wrongly. Rather than allowing P2P sharing of copyrighted music, the ill-conceived royalty should be stripped from the CD-Rs.

And where do you get your information about a blank media royalty in the States? I looked, but I couldn't find it anywhere. (I know there's one in Canada.)

It would be quite damning to the RIAA if it's proven that piracy doesn't hurt their sales nearly as much as they claim.

Only inasmuch as they could generate enough sympathy to allow them to continue to hunt down file-sharers. If they could legitimately catch someone in an act of copyright violation, they can still file a claim (not in Canada, of course).

[MegaSilver]

Your ignorance of the law (at least US law) is showing. Best not continue and prove you're stupid!

Well, to be fair, he's not the only one. I, after all, mistakenly used "theft" when "copyright violation" was (I believe) the appropriate terminology--I still haven't broken myself of the habit. (Ethically speaking, though, there are many instances of copyright violation that amount to the same thing as theft.)

[Quick1]

Only inasmuch as they could generate enough sympathy to allow them to continue to hunt down file-sharers. If they could legitimately catch someone in an act of copyright violation, they can still file a claim (not in Canada, of course).

If it's irrefutably proven that music downloads do not harm music sales, I do not believe they would have anything to sue for, as they would not be able to prove that the downloading caused them harm.

As an aside, if I were a starving artist, I would be putting my music out there for free downloading as much as possible. I would like to know how many artists have gained a following from people that listened to their music for free, and then decided to attend a concert or buy a CD becuase it inspired them in some way.

[Drago]

And where do you get your information about a blank media royalty in the States? I looked, but I couldn't find it anywhere. (I know there's one in Canada.)

There are CD-R disks in the US sold as "CD-R Music" media that have had royalties paid to the music industry...they cost about $5 more per 25 disk spindle, and aren't much different physically the regular CD-R disks. See: CompUSA CD-R Media Link

[armed_in_sydney]

The buck will ultimately stop at ISP's,not music lovers.They are the ones profiting from copyrighted content and they know exactly what is travelling through their servers making broadband worth paying for.This will be the next line of attack from the RIAA(and all content providers).It will also be the only effective measure seen so far.In 5 years people will look back nostagically at how cheap broadband was.The day will come when the RIAA encourages the downloading of anything and everything it has a financial interest in.Downloads will contribute more $$$ to the music industry than merchandise and cd's combined.

[MegaSilver]

If it's irrefutably proven that music downloads do not harm music sales, I do not believe they would have anything to sue for, as they would not be able to prove that the downloading caused them harm.

Yes, they would (at least in the U.S.): copyright infringement.

As an aside, if I were a starving artist, I would be putting my music out there for free downloading as much as possible.

Yes, so would I... while I was still an unknown. Once I became famous, I would want people to pay me for my work. I would like to know how many artists have gained a following from people that listened to their music for free, and then decided to attend a concert or buy a CD becuase it inspired them in some way.

If that's what everyone did with downloaded music (and, judging from most of the surveys, that's what most people do with it), it wouldn't be a problem. But people abuse it and use a set of downloads as a substitute for purchasing the actual CD (yes, they do... I have friends who do it; I used to do it)... hence the need for copyright laws.

It is true that many or even most of the people who do that probably wouldn't buy the CD in the first place, whether or not they could download it. But it's still problematic, because they are gaining benefits they are neither legally nor ethically entitled to.

[Constantine XIII]

Heh, don't mind the grouch folks. This is simply a case of technology outrunning the legal system. Unless Congress wants to regulate the whole internet, they and the music industry are just going to have to learn to deal with P2P.

The can of worms is opened and the genie has escaped from his bottle.

[lawdude]

"Well, to be fair, he's not the only one. I, after all, mistakenly used "theft" when "copyright violation" was (I believe) the appropriate terminology--I still haven't broken myself of the habit."

I wasn't referring to you but the theft is the taking of the intellectual property of another. In strictest terms it is a theft. BTW, I am a licensed Patent Attorney.

[Chinese_American_Patriot]

What the heck is your problem? Huh!? It's so bad to download music?!?

[simply marvelous]

As a Canadian, this makes me oddly proud.

[Mrs Zip]

ping

[Guillermo]

Not if you have permission from the owner, or pay for it.

[Chinese_American_Patriot]

Downloading music isn't all great. I doubt that there are many copyrighted songs since many of them that I have downloaded are all scratched up and inaudiable. This is one of the shortcomings of downloading but its still worth it. Don't get me wrong, I have paid for some excellent CD's from good bands with ALL the songs good but others only have about 3 or 4 good songs. It seems that the standard for CD length these days is 11 tracks, which isn't very much.

[Damagro]

You started the name calling. The top five record companies were found guilty of price fixing 2 years ago. Did anyone go to jail? Were harsh penalties meted out?
The ones bitching and moaning about theft of music are mainly ones who have robbed the artists blind to begin with.
The music company bigs screwed up by gouging the consumers and the actual creators of their product and are reaping the dividends now.
Internet downloads are not the cause of their losses, overpriced mediocre product is. When artists are not blocked from marketing their product directly to mainstream consumers things will improve for everyone except the thieves in the record companies and the RIAA. As it stands now, payola rules the radio airwaves and any artist who doesn't sign their life away doesn't get airplay

[Houmatt]

You obviously fail to see the point.

The only real immoral thing about all of this is how the RIAA refuses to come into the 21st Century, opting instead to sue children and grandmothers.

[MegaSilver]

The only real immoral thing about all of this is how the RIAA refuses to come into the 21st Century, opting instead to sue children and grandmothers.

Please elucidate on that point. Also, please explain to me how downloading music that one has no legal or moral right to can be justified.

You obviously fail to see the point.

Apparently, I do.

[bvw]

The theft is of freedom by Senator Hatch et al.

It's no crime to own a copy machine.

[MegaSilver]

It's no crime to own a copy machine.

See my post #14.

[bvw]

No agreement on that line of argument. A slippery slope and tilted too. Shared directories on networked systems exsisted prior to music sharing, and moreover can contain files, including music the authors want to PROMOTE the sharing of.

Say a "garage" band, there are many examples.

Even if a thing has only a strange and rare "legitimate" use even if only as a a private collection of criminal artifacts not actually used for criminal use, but to gawk at --- Liberty demands that no prior restraint be made on it.

And it is exceeding risky to Liberty, to the proper boundings of power and might of police function, to make any claim of bad use prior to such actual use. For everything under creation has some good use may be made of it, and not all such good uses can be known beforehand,

[MegaSilver]

No agreement on that line of argument. A slippery slope and tilted too. Shared directories on networked systems exsisted prior to music sharing, and moreover can contain files, including music the authors want to PROMOTE the sharing of.

Yes, they can contain legitimate files, as I acknowledged. I was speaking of shared directories that contain COPYRIGHTED COMMERCIAL MUSIC on P2P networks for free download without the copyright holder's consent. THAT is the problem.

Even if a thing has only a strange and rare "legitimate" use even if only as a a private collection of criminal artifacts not actually used for criminal use, but to gawk at --- Liberty demands that no prior restraint be made on it.

My point was that there can are legitimate uses for a photocopier in a library full of copyrighted commercial materials. There is no legitimate use for a copyrighted commercial song in a shared folder on a P2P network unless it has been placed there with the knowledge and consent of the copyright holder.

I am not suggesting that we outlaw P2P networking. But the court effectively ruled that sharing commercial music via shared folders on a P2P network did not constitute copyright violation or illegitimate taking/distribution of another party's intellectual property. And I think that is utter B.S. What is it BUT a copyright violation and illegitimate taking/distribution of another party's intellectual property?

[bvw]

Is "Happy Birthday to You" copyrighted? Is Mickey Mouse copyrighted?

[bvw]

There's no way of knowing (in general) that a file contains copyrighted material.

[SamAdams76]

I have a better analogy than the "photocopier in the library" scenario.

My local library has a rapidly expanding selection of CDs that can be borrowed just as a book. There are now thousands of CDs up for grabs ranging from classical to modern rock. There is no doubt in my mind that people borrow these CDs and then make perfect copies of them at home (or rip them to MP3s). Being that the library has placed a one week limit on CDs tells me that they are in great demand. And I have seen people (usually kids) borrowing up to five of these at at time (which happens to be the limit).