By now we should all know that Internet music-file sharing is perfectly legal in Canada.
After all, that’s what we heard on the news. It doesn’t matter if we don’t own the copyright on those songs, because a federal judge said it’s OK. Right?
If you were to believe such estimable sources as CanWest Global and the Boston Globe, you would think so. But you’d be wrong.
From a CanWest writer: “Last week, a federal court ruled file sharing does not infringe copyright laws.”
A columnist in the Boston Globe wrote: “Canadian Judge Konrad von Finckenstein . . . declared that citizens of the Great White North can swap copyrighted music over the Internet to their hearts’ content.”
There were many such comments on Canadian radio, TV and the Internet. File sharing services were legal in Canada, these people said, so copy away.
Only problem was, that was not von Finckenstein’s ruling.
The judge was simply ruling whether or not the Canadian Recording Industry Association (CRIA) had brought enough evidence forward to convince him that violating 29 Internet users’ privacy rights would be justified. He concluded that he would not force Internet service providers to divulge names and addresses without more compelling evidence.
But pirates in this country jumped on the erroneous headlines to conclude that there was nothing wrong with what they were doing, either morally or legally.
I’m here to set the record straight. The CRIA seems to have botched this seemingly clear-cut case. Reading von Finckenstein’s ruling, I was amazed that the CRIA legal team could not tell him definitively whether or not the files on the 29 computers, which had names of copyrighted material, were actually what they claimed: copyrighted songs.
It’s also strange that the CRIA could not explain how its contractor gathered the evidence to tie certain Internet protocol addresses to certain people. These are basic facts in such a case.
Also strange was that the CRIA did not justify why Shaw Communications, Telus, et al., were the only companies that could divulge this information (versus the file-sharing services themselves). This is a no-brainer, of course, because there is nothing that compels a file sharer to divulge his actual name or address to the file-sharing company. But the CRIA obviously did not convince the judge of this most basic fact.
So the CRIA, in my opinion, went into this case unprepared. They expected the hearing to be a cakewalk, as it was for their counterpart in the U.S. recently. But it appears von Finckenstein genuinely cares about computer users’ rights. Which is a good thing.
But when it comes to the entertainment business in this country, I’m not so sure he understands the stakes. How could anyone honestly believe that a judge known as an expert on technical matters, with even an ounce of common sense in his bones, would think that sharing files over the Internet is somehow analogous to a photocopier machine in a library?
He says in his ruling that people might load file-sharing software, and then put thousands of files in the computer’s shared file for something other than sharing. He appears to believe that distributing perfect copies of music anonymously and repeatedly and on an industrial scale is somehow like making lousy, flimsy copies on a copier machine in a library, one at a time.
This kind of reasoning is astonishing. It would be no wonder if it surprised the CRIA. But it does not mean that file sharing is legal.
The judge appears to have concluded that there is no obvious distribution going on and also that there is no strong societal imperative here that outweighs privacy rights. But you don’t have to be an expert in the fine points of law to know that businesses suffer when perfect copies of their products are available for free.
Comparisons to recording music from radio stations onto a cassette tape are also ludicrous (this has been circulating on the talkshows and from pundits such as Glenn Reynolds, a University of Tennessee law professor, who was on CBC radio last week).
Do these people not realize that file-sharing software can make thousands of copies of songs available worldwide to millions of people who can all access them simultaneously? Does no one see this as analogous to the industrial production of music?
CRIA does. And I do too. And anyone who is honest with themselves does, too.
Musicians, music producers, recording companies, sound engineers and many related professions that are important to this country are on the line.
If we let this file-sharing fiasco continue, it’s easy to see what our entertainment industry could become. Look at India, where piracy is considered normal. The artists are famous. But the businesses lose money. As a result, the entertainment companies fell into the hands of mobsters, who want the cachet of being associated with celebrities.
That’s where this will lead. That von Finckenstein cannot see this is preposterous. We all must stop deluding ourselves.
