New Big Music Defeat in Canada

By Jon Newton 5/16/05

Big Music has suffered yet another ringing defeat in in Canada.

The Federal Court of Appeal today rejected its bid to target Canadians file sharers in the way that it does those in the US.

In BMG Canada v John Doe, “The court has reaffirmed the importance of online privacy and confirmed that those seeking to sue Internet users cannot uncover the anonymity of their targets on the basis of mere allegations,” says CIPPIC (Canadian Internet Policy and Public Interest Clinic) executive director Philippa Lawson.

Jon Newton

In March 2004, the trial court heavily criticized the music industry’s evidence and refused to order ISPs to hand over their customers’ identities. It decided the music industry’s electronic investigations were full of gaps, creating a real risk of exposing innocent people to litigation, and that it would be “irresponsible” to order disclosure on this evidence.

However, the appeal court overturned the lower court ruling that plaintiffs must make out a prima facie case of wrongdoing before they can get the identity of alleged file sharers. Instead, it ruled the labels, and others, only need a bona fide claim against their targets.

"We're concerned that this lower threshold test might allow for unjustified privacy invasions, such as stripping the anonymity of individual human rights activists or whistleblowers in order to silence them through groundless lawsuits", says Lawson.

Staff lawyer David Fewer says the decision leaves the question of whether or not file-sharers are, in fact, infringing copyright law. It also opens the door for the CRIA (Canadian Recording Industry Association) to find better evidence than last time around, and to begin a US-style sue 'em all campaign in Canada.

"These campaigns have had no impact on deterring file-sharing in the US and will do nothing to compensate Canadian artists," says Fewer.

“US-style litigation campaigns only tie up Canadian judicial resources, force ordinary consumers into paying outrageously high settlements, and alienate the public. If sued, file sharers face potential minimum liability of $750,000 or more each, as a result of Canada’s controversial statutory damages scheme. These provisions of the Copyright Act were never intended to cover the common practice of downloading more than 1,000 songs for private use, a practice previously ruled to be legal by the Copyright Board."

Expect to see the CRIA claiming the decision as a 'major victory' for the record label cartel.


Jon Newton is the editor of and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.


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