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| Afsendt: | 04-01-2004 10:30:58 |
| Afsender: | ebbe hansen |
| Email: | kirkii@bog |
| Emne: | Artiklen fra "Globe and Mail" (bare fordi den er så flot skrevet) |
| Tekst: | Ingram: File swappers win big By MATHEW INGRAM Globe and Mail Update UPDATED AT 5:56 PM EST Wednesday, Mar. 31, 2004 In his ruling Wednesday on whether the Canadian record industry could force Internet service providers to identify digital music-swappers, Federal Court judge Konrad von Finckenstein didn't just poke a few holes in the industry's legal case – he blew it completely out of the water. In fact, if it was a turkey and this was hunting season, it would be nothing but a cloud of feathers. There were a number of reasons why Judge Finckenstein might have quashed the Canadian Recording Industry Association's attempt to identify individual music uploaders, including the fact that it is difficult to tie specific IP (Internet Protocol) addresses to individual users, or to ensure that those users were the ones who actually shared the music files at the time in question. As it turned out, Judge von Finckenstein did both of those things. But then, after the industry's case was already weak and wobbly at the knees, he delivered the knockout punch: According to the judge, there is no compelling evidence that either downloading or sharing of digital music files is even illegal. In other words, regardless of the other flaws in the industry's case, the CRIA didn't have a leg to stand on in the first place. This decision – which the record industry has said it will appeal – goes substantially farther than a U.S. ruling in a similar case in December. In that case, the Recording Industry Association of America (RIAA) was trying to force Verizon to identify some of its customers who were sharing music files. An appeals court judge ruled that the U.S. legislation only applied to material that ISPs kept on their own servers, not data that merely passed through their telephone or cable lines. Even that decision left the door open for the industry to pursue file-sharers in other ways – they just have to go through a more time-consuming subpoena process using what are called “John Doe” lawsuits. Judge von Finckenstein's ruling removed any legal basis for the recording industry to make a claim in the first place, effectively putting the CRIA back at ground zero. On the topic of downloading, the judge was succinct: Canada's Copyright Act allows users to reproduce a musical work onto a recording medium for their private use, and thus, “downloading a song... does not amount to infringement.” Judge von Finckenstein referred in his decision to a Copyright Board of Canada ruling in December which came to the same conclusion, based on the copyright levy consumers pay on blank CDs, which in turn is distributed to rights holders. That part of the judge's decision wasn't all that surprising, and it's why the CRIA has focused not on the downloading of digital music files but on the sharing or “uploading” of them. But Judge von Finckenstein blew that argument apart as well. He said that “no evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service.” Simply setting up a situation that allows copying does not amount to authorizing infringement under the Copyright Act, the judge ruled. In fact, he said, “I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service.” The mere fact of placing a copy where it can be found by another user, he said, “does not amount to distribution.” In other words, as far as the Federal Court is concerned, neither the downloading nor the sharing of digital music files is illegal under Canadian law. Should it be? Judge von Finckenstein didn't deal with that issue, since it's not the court's job. If the federal government wants file-swapping to be illegal, it will have to make that clear – because as of Wednesday, one of the country's senior judges is convinced that it is not. And the recording industry is left to lick its wounds and plan some other form of attack. |