Canadian Federal Court of Appeal Reaches a Stalemate as to Whether and How Discovery of P2P Users’ Identity Can be Compelled

May 19, 2005 at 3:29 pm - by Dale Dietrich

Categories: BigMedia v. P2P Users, Decisions, Media Levy, Privacy

Text of Decision In BMG Canada v. John Doe 2005 FCA 193; [2005] F.C.J. No. 858 (CA) (QL), the Canadian Federal Court of Appeal considered a prior federal court ruling denying the Canadian Recording Industry Association's ("CRIA") request to compel ISPs to disclose of the identity of peer to peer (P2P) file sharing users.

The Court of Appeal disagreed with the lower court's ruling on the following basis:

Proper Test: It determined that the proper test to be applied in determining whether such disclosure can be compelled is whether a bona-fide claim against the proposed defendants is made out and not, as the lower court determined, whether a prima facie case (a higher standard) has been made out.
Findings on Infringement: The Court of Appeal determined that the lower court should not, at that stage of the preceding, have made conclusions as to what would or would not constitute infringement and made it clear that if the case proceeded further "it should not be done on the basis that the findings to date on the issue of infringement have been made". The court suggested several basis upon which the lower court's infringement (or lack there of) conclusions could be challenged. Accordingly, the Court of Appeal held that the lower court's finding that "the downloading of a song for personal use does not amount to infringement" must be ignored in any future consideration of the case.

However, the Court of Appeal did agree with the lower court with respect to the importance of balancing the privacy interests of ISP customers with the need protect intellectual property rights. In future such cases CRIA must:

show that it has a bona fide claim” against the proposed defendant;
the claim must be based on admissible, non-hearsay, evidence;
there should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the P2P services in question;
"…[T]he public interest in favour of disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made”.
The information on which a request for identification iis made (e.g., IP address) must be timely; and
The plaintiffs must not collect more personal information than necessary for the purpose of their claim.

Dale's Comment: It is not clear at this point whether, as the lower court judge concluded, downloading music off the Internet through P2P services constitutes copyright infringement or is permissible under the private copying exemption contained in section 80(1) of the Copyright Act. What is clear is that the evidentiary standard by which such disclosure can be compelled is much higher than CRIA had originally anticipated and certainly higher than what the U.S. courts are requiring of the RIAA. CRIA will be required to bring substantial, relaiable, admissible, non-hearsay evidence showing a bona-fide claim in order to have a court compel such disclosure. The judge has, to my mind, laid out a convenient road-map that CRIA can follow to compel such disclosure in future cases. In light of the private copying exemption contained in section 80(1) of the Copyright Act, whether or not CRIA will have success on the merits in any subsequent infringement case is still unclear. In any event, there is a significant probability that current copyright reform efforts in Canada will result in amendments to the Copyright Act clarifying the situation before any such future case makes it to the courts. In particular, in reseponse to this case, Heritage Canada has stated that the Government of Canada intends to enact changes to the Copyright Act to confer exclusive "making available" rights to copyright holders intended to explicitly make such unauthorized P2P sharing of music online illegal.