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March 31, 2004
Ottawa, Ontario
CIPPIC lauds court decision protecting Internet privacy
Ottawa In a victory for the privacy rights of Canadians, the Federal Court today denied the music industry's request for Internet Service Providers to disclose the identity of subscribers alleged to have infringed copyright law.
"This is a strong affirmation of privacy rights." said Philippa Lawson, Executive Director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), who intervened in the case. "The court's decision sends a powerful message to those who seek to uncover the identities of ISP subscribers in order to sue them. Don't try it, unless you have clear evidence of wrongdoing and can make a reliable link between that activity and a specific individual."
The Canadian Recording Industry Association (CRIA) had relied on a rule which compelled disclosure but not creation of documents which did not already exist. At the hearing, several ISPs had noted that they had no business case to keep the kind of information the music industry sought and that to do so would be inconvenient and costly.
Justice von Finckenstein ruled that CRIA had failed to make out a "prima facie" case of copyright infringement by any of the 29 defendants, noting that CRIA's affidavit evidence was deficient, and that CRIA had failed to make a causal link between alleged filesharers' Kazaa usernames and specific IP addresses. More importantly, the court ruled that merely downloading and placing music files on a shared directory does not constitute copyright infringement under Canadian law.
Given the absence of clear evidence of infringement and the serious possibility of an innocent account holder being identified, the Court found that it would be irresponsible to order the disclosure of subscriber identities.
"This is victory for new technology and the Internet, and for the rights of users of new technology in Canada", said Howard Knopf, who acted as CIPPIC's lead counsel in the case. "It is now abundantly clear, if it was not before, that downloading songs from the Internet for personal use and merely making them available to others is not infringement of copyright in Canada. The Court has followed the recent decision of the Supreme Court of Canada and held that P2P users are not 'authorizing' infringement simply by placing a personal copy of a file on a shared directory."
This decision comes on the heels of yesterday's release of a study finding that online music sharing does not clearly affect CD sales (see www.unc.edu/~cigar/papers/FileSharing_March2004.pdf). "Even if they had the law on their side, the record industry's claims that P2P file-sharing are hurting it financially are now being seriously challenged", said Lawson.