CRIA launches appeal over decision to not force ISPs to release file-sharers’ names

The Canadian Recording Industry Association (CRIA) has launched its expected appeal of last month’s Federal Court of Canada ruling that ISPs won’t be required to identify 29 people suspected of sharing music files (CNM, April 2/04). On April 13, CRIA filed its appeal with the Federal Court of Appeal. Its notice of appeal indicates that it will pursue a twin-track approach to fighting Justice Konrad von Finckenstein’s March 31 ruling on the basis that it both was wrong on the subject of file sharing, and set the bar too high for an order to identify the alleged infringers. The appeal was widely expected in the wake of comments by CRIA general counsel Richard Pfohl and president Brian Robertson following last month’s decision, but observers have been caught off guard by the absence of either the Canadian Internet Policy and Public Interest Clinic (CIPPIC) or the Electronic Frontier Canada (EFC) as respondents to the appeal. Federal Court rules seem clear that parties taking part in lower court proceedings, and whose interests are "adverse" to the appellant’s, have a right to a seat at the table. CRIA lawyer Richard Pfohl says, however, that the organization is under no obligation to list the groups as respondents. "There are thousands of people who have different views on copyright. I’ve seen quite a few of them this week. That doesn’t mean that all of them are necessarily respondents in this motion." CIPPIC has indicated its intent to seek intervenor status in the appeal. At least two distinct issues raised by the von Finckenstein decision have been signaled as grounds for a potential appeal: procedural grounds on the test applied, and the differences CRIA and the bench had over whether making files available in a shared folder constitutes copyright infringement. The notice of appeal lists both, but experts note that it’s common for appellants to make their initial grounds for appeal as broad as possible, only narrowing the issues on which they wish to fight months later when they file their final arguments. Pfohl, speaking briefly with Canadian NEW MEDIA in the immediate wake of filing CRIA’s appeal papers, says the procedural grounds will be a critical component of the association’s case. He says CRIA needs a "workable framework" to continue pursuing file-sharers, though cautions the group will take it "one step at a time" with regard to future suits expanded from the current group of 29 individuals it has already identified as large-scale infringers. The group has insisted since the beginning of this process that it views the saving of music files to a shared folder, accessible to other users of peer-to-peer sharing software, as illegal. Without CIPPIC and EFC participating in the appeal, however, it’s possible that the issue will be saved for a copyright infringement trial against any individuals whose identities CRIA may eventually identify, either through the ISPs or elsewhere. The ISPs in this case - the major providers of high-speed Internet access - will likely have little to argue either for or against CRIA’s assertions in copyright matters. It is not immediately evident that service providers have any material interest in a copyright outcome that is ultimately between users and copyright holders. By limiting its arguments to procedural issues, and its assertions that the judge applied too harsh a test in denying its motions, CRIA might set itself up for an easier fight. Several high-profile cases have recently been handed down in Canadian courts successively giving Canadian consumers of copyrighted material increasing rights to the material. On the procedural grounds for appeal, CRIA charges several errors were made in denying its motion. Much of its notice of appeal concentrates on arguing that the group did make a prima facie or bona fide case that the individuals whose identities it was seeking were sharing files. The Federal Court of Appeal, however, will have to deal with the evidence presented in the earlier process, and the problems associated with it. CRIA notes, for example, that "(the judge) erred in holding that the appellants’ affidavit evidence was deficient, including that it was deficient on the basis that it contravened the ‘best evidence rule’ and was ‘remote’, despite the detailed and voluminous evidence filed to support the existence of a cause of action." Pfohl has repeatedly expressed frustration with the lower court’s finding since CRIA filed significant quantities of paperwork to back up its arguments. There is significant feeling among observers, however, that CRIA committed some basic errors in presenting its evidence, including using inappropriate witnesses who were deemed to be presenting hearsay since they were remote from the actual information-gathering. Depending on whether motions are filed on the issue of the respondents list, it will be at least three months before CRIA files its final written arguments in the case. Respondents will then have a month to file their reply arguments, and a little less than a month later, the court will likely set another date for an oral hearing.

CRIA launches appeal over decision to not force ISPs to release file-sharers’ names

Broadcast | April 16, 2004

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