If there is any element of commerce involved that will be infringement.
But there is no reason why a person in the US can't download from a computer in Canada. The RIAA claims it is only targeting uploaders. (Which makes sense as, if you turn your sharing off, there is no way fro them to know what you are downloading.)
As I recall, the majority of the RIAA subpoenas were issued from the DC Federal Registry which makes a decision of the DC Circuit Court of Appeal a rather larger deal than it first appears.
A Memo has, no doubt, been sent to the Clerk advising that no more silly subpoenas are to be issued.
I would be surprised if the average P2P user has any intention of communicating the music he or she downloads to the pbulic by telecommunications. Certainly defence counsel would work hard to establish that this was not within the contemplation of the user.
Were I to upload songs to my website and say "Hey, come and download this cool music." I'd be nailed, but forgetting to disable my shared file? Nope, that does not seem to create the intent required by s. 80(2).
Of course it has not been litigated so it is really all idle speculation.
Were I to write the piece again I would be more circumspect regarding uploading. Rumor's analysis, as a matter of law, makes enough sense that the CRIA - our mini-me version of the RIAA - might want to take a run at an uploader. But I doubt it.
The issues raised by uploading songs are more problematic and, were I to write the piece again, I would say that:
a) downloading for the purpose of private enjoyment is absolutely legal under the Canadian Copyright Act,
b) uploading is a murky area under the Act because the provisions of s. 80(2) import a "purpose" test, (meat and drink for lawyers);
c) it would be very difficult for anyone to successfully use the Copyright Act against a file sharer because of this purpose test,
I note that 2(b) and (c) are both modified by 80(2) which imports a purpose test. A good defence lawyer would ask his file sharing client,
Q. What was your intent when you downloaded song "x".
A. To listen to it for my own private enjoyment.
(/which makes the download legal/)
Q. Did you intend to "sell or rent out, or by way of trade expose or offer for sale
or rent" the song?
A. No.
Q. Did you download the song for the purpose of distributing it to the public?
A. No.
Q. Did you download the song for the purpose of communicating it to the public by way of telecommunication?
A. No.
The poor plaintiff's counsel would then spend a fruitless afternoon trying to prove a contrary intent.
Of course, if you take a look at the CRIA site you'll find legal analysis like this:
Furthermore - copying music without permission is illegal. And just because it doesn't involve organized crime or knock-offs sold on street corners doesn't mean that it isn't taken very seriously.
I'm not holding my breath on their ability to really get the argument Rumor is running.
You might want to check out the wording of s. 80(2) of the Copyright Act. It requires that the purpose of making the copy is distribution or transmission by telecommunication. Good luck trying to prove what the intent of a given downloader is other than to have a copy of a song on their computer for their personal use.
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If there is any element of commerce involved that will be infringement. But there is no reason why a person in the US can't download from a computer in Canada. The RIAA claims it is only targeting uploaders. (Which makes sense as, if you turn your sharing off, there is no way fro them to know what you are downloading.)
As I recall, the majority of the RIAA subpoenas were issued from the DC Federal Registry which makes a decision of the DC Circuit Court of Appeal a rather larger deal than it first appears. A Memo has, no doubt, been sent to the Clerk advising that no more silly subpoenas are to be issued.
I would be surprised if the average P2P user has any intention of communicating the music he or she downloads to the pbulic by telecommunications. Certainly defence counsel would work hard to establish that this was not within the contemplation of the user.
Were I to upload songs to my website and say "Hey, come and download this cool music." I'd be nailed, but forgetting to disable my shared file? Nope, that does not seem to create the intent required by s. 80(2).
Of course it has not been litigated so it is really all idle speculation.
The issues raised by uploading songs are more problematic and, were I to write the piece again, I would say that:
a) downloading for the purpose of private enjoyment is absolutely legal under the Canadian Copyright Act,
b) uploading is a murky area under the Act because the provisions of s. 80(2) import a "purpose" test, (meat and drink for lawyers);
c) it would be very difficult for anyone to successfully use the Copyright Act against a file sharer because of this purpose test,
I note that 2(b) and (c) are both modified by 80(2) which imports a purpose test. A good defence lawyer would ask his file sharing client,
Q. What was your intent when you downloaded song "x".
A. To listen to it for my own private enjoyment.
(/which makes the download legal/)
Q. Did you intend to "sell or rent out, or by way of trade expose or offer for sale or rent" the song?
A. No.
Q. Did you download the song for the purpose of distributing it to the public?
A. No.
Q. Did you download the song for the purpose of communicating it to the public by way of telecommunication?
A. No.
The poor plaintiff's counsel would then spend a fruitless afternoon trying to prove a contrary intent.
Of course, if you take a look at the CRIA site you'll find legal analysis like this: I'm not holding my breath on their ability to really get the argument Rumor is running.
You might want to check out the wording of s. 80(2) of the Copyright Act. It requires that the purpose of making the copy is distribution or transmission by telecommunication. Good luck trying to prove what the intent of a given downloader is other than to have a copy of a song on their computer for their personal use.