CRIA Files Appeal In Canadian Uploading Case

Cowards Anonymous writes "Not a big surprise really, according to this article, the Canadian Recording Industry Association has filed an appeal of last month's court decision that said ISPs couldn't be forced to reveal the identities of file uploaders. The CRIA argues that current copyright law doesn't allow Canadians to download and freely copy songs from the internet. They claim that the judge in last month's ruling '... made serious and reviewable errors of law, made overriding and palpable errors in his assessment of the factual record before him, and, in the end, purported to exercise his discretion on improper and irrelevant bases, and in a manner of excess of his jurisdiction.' Meanwhile, Heritage Minister Helene Scherrer wants the federal govt. to ratify a couple of international treaties that protect the ownership of copyrighted materials. If signed they would give the CRIA's case more legal weight."

Comments

That was harsh . .

[StateOfTheUnion]

They did everything but call the judge a blathering idiot . . .

CD-R Tax?

[jafuser]

Correct me if I'm wrong, but aren't all CD-Rs taxed in Canada to compensate copyright holders?

Re:CD-R Tax?

[forn28]

Yes we pay a tax on all media able to contain MP3 or copied music (tape, CDR, hard drive, etc) The hole in the law was made by the lawmaker themselves!! Remove the levy on media and reinforced the law or touch nothing!

Copying for Personal Use OK

[Mikkeles]

'The CRIA argues that current copyright law doesn't allow Canadians to download and freely copy songs from the internet.'

Part VIII of the Copyright Act would appear to disagree:

Copying for Private Use

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer's performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.

(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

(a) selling or renting out, or by way of trade exposing or offering for sale or rental;

(b) distributing, whether or not for the purpose of trade;

(c) communicating to the public by telecommunication; or

(d) performing, or causing to be performed, in public.

I think, however, that uploading would count as distribution.
More information here, for example.

Re:Copying for Personal Use OK

[what the dumple is]

Wouldn't uploading imply that you were sending a copy to a remote server or suchlike? If the file is on your own local hard drive and you make the file available directly from your machine, is that uploading?

Re:Copying for Personal Use OK

[Mikkeles]

You are correct; I (foolishly) used the term as "the other end of a download":^)
What I mean is: making a copy on your hard drive available for download would count as distribution (subsection (2)(b)) or communicating to the public by telecommunication (subsection (2)(c)).

Re:Copying for Personal Use OK

[EvilAlien]

The language in the appeal notice itself makes the point more clearly. As always, you can't rely on the news media to accurately reflect what is actually happening in a case... other than when Linus calls SCO a bunch of morons. That is pretty damn accurate.

Re:Copying for Personal Use OK

[Cavelier]

I think this could become an interesting point as things move forward. If I have copies of music on my local system and leave F&PS open (as is the default with older versions of Windows), am I then guilty of distributing the content?

It starts coming down to intent. If we take it a step further, and I have an ftp server available but secured with a single username/pass combo and someone guesses it or otherwise gains access... does that mean I'm distributing? Or does it mean someone ELSE is downloading....

Most P2P applications will simply hunt out your media and share it. Will the law now make users responsible for how their software is configured, when it's the application providers who are setting the defaults?

It's going to be some interesting times, that's for sure.

Re:Copying for Personal Use OK

[Mikkeles]

'If I have copies of music on my local system and leave F&PS open (as is the default with older versions of Windows), am I then guilty of distributing the content?'

Since 'purpose' is explicitly mentioned in the act, I would think not; especially as there is nothing in the Windows documentation that comes with the installation to indicate that F&PS is a problem. If I recall, the only statement is that you can share with your other computers! On the other hand, if F&PS is wide open, you'll probably be 0wn3d as a spam server or warez site in short order ;^) Of course, if you're an experienced admin, there is a good possibility that the courts would determine that you should have known.

'If we take it a step further, and I have an ftp server available but secured with a single username/pass combo and someone guesses it or otherwise gains access... does that mean I'm distributing?'

Probably not; I think it would be much the same as though someone broke into your house and stole the CD copy you hade made. (Unless your username/pass combo is anonymous/e-mail address.)

'Most P2P applications will simply hunt out your media and share it. Will the law now make users responsible for how their software is configured, when it's the application providers who are setting the defaults?'

Well, the only P2P app I've ever used was some version of KaZaa and it was very obvious in the docs exactly where the shared directory was and how to ensure that anything you did not intend to provide for distribution was not so distributed. In this case, I think reasonable care could be expected of anyone to ensure that they don't share.

'It's going to be some interesting times, that's for sure.'
Indeed!

(All of the above IMHO as IANAL :^)

Re:Copying for Personal Use OK

[Anonymous Coward]

Ya, this whole thing is kind of funny really. The extra tax we pay is supposed to compensate the record labels. So, they should not have an argument. And the law itself is very different from the US. I can not copy a cd and give it to you, but I can give you the original CD, and if you copy it for yourself, and return my original, that is OK. The original ruling was basicaly, leaving a file available to share was fine, since I did not actually make a copy for you, if you downloaded it from me, therby making a copy, there is no problem. I would only be in trouble if I initiated the upload (therby making a copy for you). So, uploading to an FTP site, should be bad (unless the ftp site is secured, not public, etc) as I made a copy of my original, and then "gave" it to you. The usual disclaimers apply, not a lawyer (I really hate writting "IANAL", it's no one elses business if I ANAL or if I dont ANAL).

Changes to Law Coming

[canfirman]

Meanwhile, Heritage Minister Helene Scherrer wants the federal govt. to ratify a couple of international treaties that protect the ownership of copyrighted materials. If signed they would give the CRIA's case more legal weight.

Isn't that like Quebec changing their referendum question to get a "winning condition"?

Changing the Law won't matter...

[C_To]

The judge ruled that the evidence provided from the CRIA's experts (MediaSentry) was inconclusive to provide statistics of actual copyright infringement. Essentially if the item is shared, it doesn't mean people have downloaded it. It also doesn't mean they got what they expected when they downloaded either.

Changing Canada's copyright laws will not change the fact that such evidence was found to be insufficient for cause of copyright infringement. It was even found the evidence and information provided from MediaSentry was heresay.

Having their cake

[CelticWhisper]

You know what, guys, you got your CD-R tax. Now leave file traders alone. You can't have it both ways.

In America, you buy CD-Rs without supporting record companies but get your ass grilled if they get your IP.

In Canada, you buy CD-Rs and have your money go to the record companies, and you're legally immune to their sue-craziness.

Yeah, yeah, and in Soviet Russia, MP3 trades you, but who didn't see that coming?

Seriously, though...either shut your mouths about your precious subpoenas, or lift the tax on media. You can't have your cake and eat it too. And if you think you can, consider this-the people won't let you.