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Canadian Federal Court Rejects Motion to Disclose IP Addresses of P2P Users

Categories: BigMedia v P2P ProvidersDecisionsMedia LevyPrivacy

Text of Decision (Reversed, in part, on appeal)

Update (May 19 2005): Note that the findings of the court described below as to: (i) the lack of infringement; and (ii) the tests that must be met to compel disclosure; were subsequently overturned by the Court of Appeal. Click here for my post on the appeal court's ruling.

——

In BMG Canada Inc. v. John Doe, 2004 FC 488 (aff'd/rev'd 2005 FCA 193), much like the RIAA is doing in the U.S., the Canadian Recording Industry Association ("CRIA") brought a Federal Court of Canada motion to compel Canadian ISPs to disclose the identities of 29 individuals they allege were violating copyrights through the use of KaZaA and iMesh P2P file-sharing networks. CRIA submitted that the individuals used the IP addresses registered with the defendant ISPs and, as such, sought disclousre of their identities from the ISPs. Judge von Finckenstein ruled that CRIA did not meet the necessary tests for granting such an equitable bill of discovery. Specifically, CRIA did not meet the required tests in the following ways:

A. CRIA did not establish a prima facie case against the unknown wrongdoers:

Affidavit Deficiencies:

  1. The affidavits in support of the motion, being provided/sworn by the President of MediaSentry Inc. (Gary Millin) consisted largely of hearsay. His employees identified the IP addresses of the John Does, not Mr. Millin
  2. The Media Decoy system used by MediaSentry, distributes millions of bogus or inoperative files over the Internet to look like music files. Mr. Millen did not actually listen to the files copied by the John Does to determine if they were infringing files, decoy files or other files.

No evidence exists to connect the pseudonyms and the IP addresses:

No evidence was supplied as to how MediaSentry linked the pseudonyms used by KaZaa and iMesh users to the IP addresses identified by MediaSentry.

No evidence of infringement in copyright:

  1. Section 80(1) (Copying for Private Use) of the Copyright Act provides:"the act of reproducing all or any substantial part of a musical work … onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement in the musical work" and, as such, "the downloading of a song for personal use does not amount to infringement".
  2. Merely placing personal copies of songs into shared directories which are accessible by others via a P2P services does not constitute either: (i) the distribution or unauthorized copies or (ii) authorization of the reproduction; of sound recordings which is prohibited under the Copyright Act.
  3. The judge analogized to the L.S.U.C. v. CCH case where the establishment of facilities that allowed photocopying in a room full of copyrighted material did not amount to authorizing infringement. The judge could not see a real difference between that and a computer user that places a personal copy on a shared directly linked to a P2P service.
  4. The judge also noted that Article 6 of the 1996 WIPO Treaty, whereby authors would have the "exclusive right of authorizing the making available to the public the original and copies of their works", does not form a part of Canadian copyright law as the treaty has not yet been implemented in Canada.

B. CRIA did not show that the ISPs were the only practical source for the identity of the P2P users:

The person from whom discovery is sought must be the only practical source of the information available to the applicants. CRIA did not establish who the operators of the KaZaa or iMesh services were or whether the information could be determined from such persons.

C. In light of CRIA's delays, the public interest for disclosure was not outweighed by privacy concerns:

  1. While the plaintiffs are entitled to protect their rights, in light of legitimate privacy rights of Canadians, the judge must be satisfied that the information is reliable and disclosure is the minimum required for the plaintiffs to identify the alleged defendant. The ISPs indicated they could only reliably produce the requested information if requested in a timely fashion (ie: within 30 days or less of the alleged incident).
  2. However, the notice of motion requesting disclosure was given months after the evidence was gathered.
  3. Given the age of the data, its unreliability and the serious possibility of an innocent account holder being identified, the court was of the view that the privacy concerns outweigh the public interest concerns in favor of disclosure.

Subsequent Federal Court of Appeal Post:

Related Stories: WikiPedia | P2PNet | Gen X at 40 | CNet | Lang Michener

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