Music labels charge multiple errors in appeal of Von Finckenstein CRIA/ISP ruling

The Canadian Recording Industry Association (CRIA) has filed its anticipated appeal of a March 31 ruling by the Federal Court of Canada that prevents the lobby group from accessing the names of 29 Internet subscribers it believes are engaged in music piracy (CNM, April 2/04). On July 12, CRIA filed its memorandum of fact and law – the arguments it will make in the appeal – with the Federal Court of Appeal. Association officials are remaining tight-lipped about its legal strategy beyond what’s contained in its court filing, but in keeping with its original notice of intent to appeal, the group believes lower court judge Konrad Von Finckenstein made several major errors in reaching his conclusion this winter. In his original decision, Von Finckestein found that the evidence collected by CRIA had several holes in it, and he refused to order ISPs to divulge the identities sought by the music labels so that they could proceed to sue the alleged offenders. For example, affidavits and evidence were presented by third parties, he found, and the presence of music files in drives searchable by other people using peer-to-peer file-sharing applications didn’t constitute evidence of actual sharing. Because of these and other considerations, the judge felt the order being sought by the labels was an unwarranted and improper violation of the anonymous users’ rights to privacy. The ruling was immediately decried by the music industry, which says it has been hammered to the tune of hundreds of millions of dollars over the past years in lost revenues and job losses. File-sharing advocates and public interest advocates, however, cheered the decision. Media around the world began portraying file-sharing as a protected activity in Canada and copyright freedom advocates have put the decision in the continuum of decisions to come from various courts that give greater rights to Internet users than their counterparts in other countries. Now, CRIA says Von Finckenstein made several errors in reaching his conclusion. In its first assertion in the court filing, CRIA says that the judge erred when he ruled that documents didn’t exist to tie the IP numbers for which information was being sought to subscribers’ information. CRIA argues that the judge should have taken into consideration testimony that both Rogers Communications Inc. and TELUS Communications Inc. had documents that did so. Secondly, it asserts that the judge misinterpreted the relevant rules, and that any "relevant" documents to the case should have been accepted – not just those that have both the identification and IP addresses contained in a single form. CRIA also argues that, in contradiction to Von Finckenstein’s finding, it has no other recourse to get the information it’s seeking about the target subscribers’ information. In fact, it says, a CRIA-hired consultant testified to that effect – evidence the judge overlooked in reaching his conclusion. The labels’ association puts forward several alternative arguments on the subject of whether third parties can be compelled to produce documents relating to third parties, each pointing to a specific error made by the lower court judge, depending on which version of the law the next judge decides to accept, if any. One of the key pieces of evidence in the original motions process that led to its eventual defeat was testimony by MediaSentry head Gary Millin. In his decision, Von Finckenstein ruled it invalid since Millin was relaying the testimony of his employees. It was MediaSentry that culled the IP addresses in question on behalf of CRIA by surfing the Kazaa service and looking at the shared files of various users. CRIA disagrees with Von Finckenstein’s finding that the evidence presented by Millin was hearsay, saying his testimony was a straightforward relay of information obtained by MediaSentry. CRIA’s lawyers write: "In rejecting Mr. Millin’s evidence, the motions judge confused hearsay with computer-generated evidence. Hearsay is a concept that relates to evidence that has passed through a human mind. Where evidence is automatically recorded by any means other than by human labour, and the evidence so recorded can be reproduced in any form intelligible to the human mind, the reproduction is admissible as real evidence and not hearsay." An important aspect of CRIA’s appeal will be its request to have the copyright aspects of the original decision overturned. File-sharing advocates cheered in late March when Von Finckenstein, citing significantly from the CCH decision handed down earlier that month, ruled that just having files in a shared drive isn’t proof of authorization to distribute the material. He likened shared drives to photocopy machines, which the Supreme Court of Canada had just found don’t imply a specific authorization to reproduce copyrighted material. "In dismissing the appellants’ argument on authorization, the motions judge misapplied the decision in CCH Canadian Ltd. v. Law Society of Upper Canada (CNM, Mar. 17/04). That case held that a library does not authorize infringement by merely making a photocopier available on its premises. However, the CCH case is not analogous to the present one and its teaching does not assist the ISPs. The motions judge failed to appreciate that the CCH case evaluated the position of the supplier of equipment having both infringing and non-infringing uses (the photocopier), whereas the present case involves the actions of the defendants who themselves made and transmitted infringing reproductions of the copyrighted works (the songs)." CRIA argues that authorization can be "inferred from acts or omissions that are less direct and positive, for example, when a person receives notice of a potential infringement and fails to take reasonable, remedial steps within the person’s power to prevent an infringement." It says it notified 27 of the 29 defendants by instant message that they were in violation of copyright law. Furthermore, in an aspect of the case that will be carefully watched by analysts, CRIA argues that the private copying regime doesn’t protect the anonymous 29. In his original judgement, Von Finckenstein found that just having copies of copyrighted works doesn’t count as infringement since Canadians are allowed by private copying legislation to download works for personal use – at least as the law was interpreted by the Copyright Board of Canada last December (CNM, Dec. 19/03). CRIA counters that by putting songs in their shared directories renders that protection void. In addition, the labels say, the private copying regime only protects works copied to an "audio recording medium. Computer hard drives have thus far been left off the table in the scheme – something Von Finckenstein failed to consider in his ruling, says CRIA. Finally, another critical aspect of the appeal rests on the public interest considerations in the case. Privacy rights were an important reason why Von Finckenstein denied the original CRIA label, another area where it says the original decision was wrong. All the anonymous defendants, it says, signed agreements with their ISPs recognizing that court orders could be issued for their identities, and each agreed not to send or receive unauthorized copyrighted material. The full appeal raises a host of more issues, and it will be useful for copyright experts to see on which grounds the association either fails or succeeds. Both the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and a coalition of ISPs are on tap to provide their own perspectives on the original ruling, which should ensure that each of the public interest, copyright and evidentiary aspects are well-aired. One group of potential intervenors, however, has seen its request to participate denied. On July 20, John Evans ruled for the court that the Business Software Alliance, Canadian Alliance Against Software Theft, Entertainment Software Alliance and the Software & Information Industry Association, along with the Canadian Motion Picture Distributors Association, would not have a chance to intervene in the case. In ruling, Evans found that each would have only a general interest in the outcome of the case, and that the existing plaintiffs, respondents and intervenors are well-placed to argue the copyright law in question. Evans also ruled on the same day that CIPPIC, by the process rules set down by the court, could not be guaranteed more than 15 minutes to present its case – though he noted that the court could at its discretion offer more time.

Music labels charge multiple errors in appeal of Von Finckenstein CRIA/ISP ruling

Broadcast | July 23, 2004

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