Last week, Justice Konrad von Finckenstein* of the Federal Court of Canada (Trial Division) ruled that file swapping programs don’t violate the Canadian Copyright Act. He dismissed an application by the Canadian Recording Industry Association, which was trying to get orders against various Canadian ISPs compelling them to disclose the identity of about 30 prominent uploaders. Von Finckenstein J. said that having hundreds of tunes on your hard-drive, along with a file-swapping program, was analogous to a library having a photo-copier - not in itself proof of copyright violation.
The CRIA is shocked, and will likely appeal, according to this article. The decision appears to have sent some shockwaves in the music industry internationally. On the other hand, the ISPs who opposed the application to protect their customers’ privacy are quite pleased.
So, victory for privacy and liberty, or another nail in the coffin for the traditional music industry?
You know that the only reason I’m posting this is I want to refer to Justice Konrad von Finckenstein.
I was talking to a friend about this the other day. I think the opinion was poorly reasoned - for one, I think that setting up a filesharing program and taking the necessary action to share a directory containing copyrighted material in and of itself constitutes intent to distribute, considerint that no one’s holding a gun to your head to force you to A) install the filesharing program or B) share a directory containing copyrighted material.
A little more shaky on my part is that I disagree with a filesharing program being analogous to a photocopier in a library. I’m not sure quite how to articulate this, but libraries have photocopiers because libraries contain material that can be copied for, among other things, fair or educational use. I don’t know of anyone who’s advanced an argument for filesharing’s primary use being for fair or educational use. This isn’t a very good argument, and I’m aware of that, but I still think it’s important to consider. I’m aware that there are legitimate uses for filesharing, but that doesn’t make Kazaa a library photocopier.
Some of the other news articles have commented that CRIA’s evidence seemed weak, and that it wouldn’t have surprised people if the Court had come out with a “not proven” kind of decision. It’s the interpretation of the Copyright Act that has got people’s attention. I must say, I’m scratching my head a bit over it, but this isnt my area at all. I wouldn’t be surprised if this case makes it to the SCC.
I don’t know nothin’ about the dance between the judiciary and the legislature in Canada, but might this be a case where the judge was saying to the legislature, “Get up off your butts and update the law,” not “File sharing is a fundamental right. Pirate on!”?
In either case, the decision has gotten the government’s attention:
From what I understand of how the law is written, the important point is who is actually making the copy. It is legal for you to make yourself a copy of one of my CDs, but it is not legal for me to make the copy and then give/sell it to you.
This means to me that (as an extreme example) I could set up a computer on my front lawn, with my stack of CDs and a stack of blanks, and a sign saying Free Music, as long as I myself don’t physically make the copy and then give it away. If the person who will end up with the music actually makes the copy, it’s legal.
If I’m right about that, then I would say that the judge’s decision is correct. If I set up a file sharing program and a shared directory, I have not copied anything. Then when you take a copy of the file, you are doing the copying, not me.
One of the key issues here is the difference between making a copy and requesting a copy. I think the filesharing situation is more of a ‘requesting’ scenario. The remote user requests a copy of a song, and it is provided. The photocopier situation is more of a ‘making’ scenario, one has to bring the physical document to the copier, insert cash, and then the copier does its thing.
If the library instead had a kiosk where one could get free printed or electronic copies of copyrighted books, would this judge still consider that A-OK? That, in my mind, is much closer to our filesharing example than a simple photocopier is.
I’m not sure that I agree with that distinction. What about these scenarios between two friends:
[ul]
[li]I take your CD, put it in the CD drive on my machine, and burn a copy[/li][li]I take your CD, put it in another computer on my network, and burn a copy on my machine[/li][li]You bring your laptop, hook it into my network, put the CD in, and I burn a copy on my machine[/li][li]You bring your laptop, hook it into my network, and I burn a copy of some mp3s from your hard drive[/li][li]We do either of the last two options, but connecting over the web rather than in the same physical location[/li][li]We do either of those, but via a filesharing service[/li][/ul]
Those seem fairly equivalent to me in terms of this law. I don’t see how it would change things to go another step and copy a file from a person I don’t know instead of from a friend of mine.
I definitely don’t think this is another nail in the coffin for the traditional music industry. I remain unconvinced that file-sharing is any more of a mortal threat to that industry than tape-recorders were.
That said, one of the details in the article surprised me. Apparently the judge ruled that downloading files wasn’t a copyright violation either. I can see how the “photocopier in a library” analogy can be used to argue that just making the files available isn’t illegal. But actually downloading the files seems to be analogous to actually making copies of books. And that’s still illegal, barring “fair use” exceptions (which don’t seem to apply if you’re copying an entire book or an entire song).
(As a side note, my sister works for AVLA, where they apparently aren’t happy to have reporters bumbling around their offices asking for comments. They’re busy enough with the Juno Awards coming up…)
Presumably there would have to be two things present–an active filesharing progran, and a directory of files copied without permission–for even Judge von Finckentein’s “availability” interpretation to apply? Just one of those two things would not suffice.
This article in the Toronto Star went into a bit of detail on how shoddy the CRIA’s case was. The headline:
I am not sure that this decision will hold; I feel that this’ll be going to the Supreme Court for sure.
Peoples’ shared directories also have material that can be legally copied as well.
I was going to say that Canada has a slightly different legal environment because a surcharge is placed on all blank CD,tape,recording instrument sales which goes to the recording industry: but apparently I’m wrong. This is also mandated by the US "Audio Home Recording Act ". So what gives? It seems the only time the recording industry loses money is if the downloaded file never leaves the computer. They even make money when I backup my harddrive.
Downloading files had already been ruled legal. The way the law is written, making copies of audio recordings for your own personal use is permitted. However before this ruling, the general opinion was that uploading files was distribution and not allowed.
The more I think about this, the more I think that the ruling is correct (legally anyway). Making files available on a filesharing network does not include uploading them. When another user takes a copy of a file, they are doing the copying.
From one perspective, the differences look small, but they’re large from other perspectives.
In your first example, you are borrowing a physical copy of a song from a friend, and completely processing the copy yourself.
In the last example, you are sending an electronic request over kazaa to a completely unknown, anonymous (sort of) person, and receive in return a copy of the song.
Going further, one might set up a kiosk in a mall where all you need to do is select the song and it will spit a CD out at you. Can one possibly argue that the user in this case is making the copy vs. the kiosk providing a service?
You’re taking small steps, but at some point a small step puts you over the edge. There is a whole continuum of points along this line, but at one end YOU are making the copy and at the other you merely request a copy. Filesharing in this way is remarkably similar to what you get through legal, pay, music downloading services. If the person sharing the song is not providing any sort of copying service, what do people pay iTunes for?
Again IANAL, but I think that such a kiosk might be legal under the current law. It is legal to take a purchased CD (from any source; you don’t have to own it) and burn yourself a copy. As far as I can tell, the source of the CD, the source of the blank CD and the equipment you use to make the copy does not matter. It seems to me that I could lend you my CD collection, give/sell you some blank CDs, and rent you my computer to do the burning.
This is also why I think that filesharing is equivalent to the first option in that list I made a few posts back. The only difference between copying a CD locally and copying one over a filesharing network is the length of the wire :).
That does put a different light on things. This new ruling looks like it renders copyright completely toothless, at least for music. If the judge’s ruling stands, I think the Copyright Act may have to be amended to tackle file-sharing at the downloader’s end.
There’s another thread discussing this issue, with a bit of discussion, it also provided a link to a .pdf file of the actual decision. While the actual copying aspect is seemingly within the law, there is also the aspect of distribution and authorization.
With respect to distribution, I am of the opinion that since kazaa is designed to send out files to anyone who asks, it distributes files. It also advertises the existence of these files by making that information widely available.
On authorization, the computer owner clearly authorizes others to access and copy files from his computer. Files placed in specified folders. By placing the copyrighted files in that folder, I’d consider that authorization to copy those files from your computer.
I am only assuming here that these two items are legitimate complaints that would stand with sufficient evidence.
I agree with you about authorization, but I’m not sure about distribution. Probably it can be argued either way, depending on from whose perspective you look at a file transfer: am I taking a copy of your file, or are you sending me a copy? Or both?
Now I may be starting to go a little overboard :), but I think the law’s provision against distribution may refer to distributing the physical copy you’ve made. It seems that what they’re trying to stop with this provision is people burning a bunch of CDs and then giving them away or selling them. In filesharing, the “uploader” is not distributing their reproduction; they are allowing others to reproduce the reproduction.
Having said all this, these arguments do seem very “loopholey” and they probably do not reflect the original intent of the law. I would expect that the law will be changed at some point.
It’s actually kind of funny; I think this law is one example of the recording industry trying to compromise. When the law was writren, CD burners were just becoming widely available, so the attempted solution was to add a levy to blank CDs, and allow copying. It’s not a perfect idea, but it’s a good try.
Then a few months later, Napster gets invented :).
The way I read it, this decision doesn’t declare it legal to upload music at all; it only says that putting files into a shared folder isn’t the same as uploading music, and if someone is “offering” files on a P2P network, you can’t assume he has actually distributed them.
In other words, placing the copy machine in a library is legal, even though it would be illegal to copy any significant amount of library material with it. Placing files in a shared folder is also legal, even though it would be illegal to actually distribute any significant part of those files to another person.
Thing is, the library can’t prevent the illegal use of its photocopier without significant expense, and the photocopier is usually used legally. The file sharer can easily, trivially, prevent the illegal distribution of these files by placing them in a non-shared folder. In fact, the placing of these files in his shared folder almost assures that they will be illegally distributed, while the use of the photocopier is widely varied and incorporated into copyright law. The user is given a choice ‘shared’ or ‘non shared’ that the library does not have.
I also disagree with his thoughts on distribution/advertising, but I mentioned that below and in the other thread.
That “almost” is what I (and, AIUI, the judge) are objecting to. You can assume that a file in someone’s shared list will be illegally distributed, and you’d probably be right, but that assumption isn’t good enough to indict someone for copyright violation.
Perhaps no one ever requests that file from him, so he has never distributed it; perhaps no one ever requests more than a few bytes of that file, so any amount he has distributed could count as fair use; perhaps his P2P client is broken and he can’t distribute the file at all, even though it’s in his shared folder. There’s no law against attempted copyright infringement, so without evidence that he has actually distributed the file, there’s no evidence that the law has been broken.
All it means in practice is that the industry’s P2P moles will actually have to download a file from someone before they can sue him.