March 31, 2004

Canadian Opinion Online [3:37 pm]

T-292-04 (Citation: 2004 FC 488) Decision rendered on March 31, 2004, IN THE MATTER OF BMG Canada Inc. et al v. Jane Doe et al (see Just In From Canada for news articles)

It looks like the judge really rips into the CRIA’s presentation — that they really failed to make the case at any level. (Update: Ernest’s reaction seems to be similar to mine: An Unenthusiastic Response to the Canadian Filesharing Decision)

On the basis of the foregoing, it is obvious that in my mind the plaintiffs have not:

  • made out a prima facie case (their affidavit evidence is deficient, they have not made a causal link between P2P pseudonyms and IP addresses and they have not made out a prima facie case of infringement);

  • established that the ISPs are the only practical source for the identity of the P2P pseudonyms; and
  • established that the public interest for disclosure outweighs the privacy concerns in light of the age of the data.

Consequently, they have not met the test set out in paragraph 13 above.

On the other hand, there are indications that their pleadings might have worked if they had been more diligent. For example, against the privacy criterion:

In this case, the plaintiffs have a legitimate copyright in their works and are entitled to protect it against infringement. However before making the order, the Court evidently must be satisfied that the information about to be disclosed is reliable and should restrict disclosure to the minimum required for the plaintiffs to identify an alleged defendant. Any order made should also, having in mind the privacy interests of the defendants, be accompanied by restrictions and confidentiality orders as the Court sees appropriate. All of the ISPs have indicated that they can produce the required information if requested in a timely fashion. In this case the evidence was gathered in October, November and December 2003. However, the notice of motion requesting disclosure by the ISPs was not filed until February 11, 2003. This clearly makes the information more difficult to obtain, if it can be obtained at all, and decreases its reliability. No explanation was given by the plaintiffs as to why they did not move earlier than February 2003. Under these circumstances, given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, this Court is of the view that the privacy concerns outweigh the public interest concerns in favour of disclosure.

Or, the failure to establish that the ISP is the only source of the information includes instructions on how to go about doing so:

In this case, the alleged wrongdoers used software called KaZaA, KaZaA Lite or iMesh which they downloaded from websites by those names. The affidavits of Gary Millin and Kathy Yonekura do not at any point mention who operates these websites, where they are located or whether the name of the pseudonyms can be obtained from the operators of these websites. In the absence of such evidence the Court cannot make a determination as to whether or not the ISPs are the only practical source of information available to the plaintiffs.

Or, as Prof. Geist is quoted in the news articles, there’s recourse to the legislature:

The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives. The exclusive right to make available is included in the World Intellectual Property Organization Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, Page: 16 1996), however that treaty has not yet been implemented in Canada and therefore does not form part of Canadian copyright law.

So, interesting reading all around…

Update: CNet News’ Judge: File sharing legal in Canada; also, The RegisterFile sharers not guilty of copyright infringement - Canadian judge

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