File sharing in Canada relates to the distribution of digital media in that country. Canada had the greatest number of file sharers by percentage of population in the world according to a 2004 report by the OECD.[1] In 2009 however it was found that Canada had only the tenth greatest number of copyright infringements in the world according to a report by BayTSP, a U.S. anti-piracy company.[2]
Important distinctions have been made about the legality of downloading versus uploading copyrighted material as well as "musical works" versus other copyrighted material. In general, the unauthorized copying or distribution of copyrighted material for profit is illegal under Canada's Copyright Act; however, the act also states under the section "Copying for Private Use ... onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.".[3] Furthermore, the Act contains a Private Copying exception that makes it legal to copy a sound recording onto an "audio recording medium" for the personal use of the person making the copy. This is supported by a levy on blank audio recording media, which is distributed to record labels and musicians.[4]
While the unauthorized copying - uploading - of complete copyrighted works such as books, movies, or software is illegal under the Act, the situation regarding music files is more complex, due to the Private Copying exemption.
First, to qualify as Private Copying, the copy must be made onto an "audio recording medium". However, there remains some controversy as to whether certain things such as digital music players, or computer hard drives, constitute audio recording media. In 2003, the Copyright Board introduced levies of up to $25 on non-removable memory in digital music players such as the iPod. However, this was struck down when the Federal Court of Appeal ruled that memory permanently embedded in digital music players could not be considered an audio recording medium. The court also gave the opinion that a digital music player, as an entire unit or device, could not be considered an audio recording medium. However, the Copyright Board disputes the latter, and maintains that "it is not settled law that a digital audio recorder is not a medium".[5] Copying onto an audio recording medium for which no levy is currently charged still qualifies under the Private Copying exemption: "For instance, simply because the Board has not been asked to certify a tariff on hard disks in personal computers, it does not follow that private copies made onto such media infringe copyright."[6]
The application of the Private Copying exemption to copies made via the Internet is also a complex issue. Prior to 2004, some analysts believed that it was legal to download music, but not to upload it.[7][8]
For a brief period in 2004/2005, the sharing of copyrighted music files via peer-to-peer online systems was explicitly legal, due to a decision by the Federal Court, in BMG Canada Inc. v. John Doe.[9] Under certain conditions both downloading and uploading were held to be legal. Specifically, paragraphs [24] and [25] of the decision[10] stated that Section 80(1) of the Copyright Act allows downloading of musical works for personal use. This section specifically applied to musical works and therefore the decision made no determination as to the legality of downloading other forms of copyrighted works.
Paragraphs [26] to [28] of the decision also made a ruling on uploading, stating that
The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying.
However, the case was appealed, and on May 19, 2005, this section of the decision was set aside by the Federal Court of Appeal.[11] The appeals court dismissed the case, primarily due to lack of evidence linking the unnamed defendants to the alleged copyright infringement. However, it held that it was inappropriate for the original trial court judge to have ruled on the question of whether making music files available on peer-to-peer file sharing systems constitutes "distribution" (illegal under the Copyright Act) or simply facilitates "private copying" (legal under the Act) at that point in the proceedings. The appeals court specifically left open the possibility of future lawsuits, wherein the question of the legality of peer-to-peer sharing could be addressed. So far, no further such lawsuits have been filed in Canada, leaving it an open question.
In June 2005, the Canadian federal government, then ruled by the Liberal Party of Canada, introduced Bill C-60, which would amend the Copyright Act to, among other things, specifically make the "making available" of copyrighted music files on peer-to-peer systems illegal. However, parliament was dissolved later that year due to a non-confidence motion, and the bill was never passed.
A new copyright bill was expected to be introduced by the newly installed Conservative government before the end of 2007. It was expected to have much stronger protections for copyright owners, including some provisions similar to the American DMCA.[12] However, due to massive public outcry in the days leading up to the bill's expected introduction, the government delayed its introduction.[13] Just before the end of the second session of the 39th Canadian Parliament, the Conservative government introduced Bill C-61.[14] Bill C-61 was superseded by Bill C-32 (40th Canadian Parliament, 3rd Session), which was introduced into Parliament on June 2, 2010.[15]
On September 29, 2011, Minister of Canadian Heritage James Moore and Minister of Industry Christian Paradis announced the reintroduction of the Government of Canada's Copyright Modernization Act under the new designation of Bill C-11.[16] This was signed into law on June 29, 2012, as the Copyright Modernization Act.[17]
Legal history
1921: Copyright Act of Canada
Copyright law in Canada grew out of a long series of British statutes and common law, including the Statute of Anne and the Imperial Copyright Act of 1911. It was first consolidated into one Canadian statute in 1921, the Copyright Act of Canada. The Act has been amended over the years by various Bills passed by the Canadian parliament.
Bill C-32, which received Royal Assent in 1997, amended the Copyright Act of Canada. Among the changes was a provision that legalized music file sharing under certain conditions. The provision states that copying copyrighted sound recordings of musical works for the personal use of the person making the copy, does not constitute a violation of the copyright of that work.
2003: Copyright Board of Canada and P2P filesharing
The Copyright Board of Canada is a regulatory body empowered to establish the amounts and kinds of levies to be charged on blank audio media under the Private Copying section of the Copyright Act. On December 12, 2003, it released a decision setting the levies to be charged for 2003 and 2004. In relation to this, it also commented in response to queries that were made regarding the legality of P2P file sharing. The Copyright Board gave the opinion that Private Copying of copyrighted sound recordings for one's personal use was legal, irrespective of the source of that material. Users of P2P networks were thus clear of liability for copyright violations for any music file downloading activity. The decision noted that distributing music online was expressly excluded from the Private Copying exception, and it associated the word "uploading" with the act of distribution.
The Copyright Board is not a court, and its opinion regarding the legality of downloading was publicly disputed by the Canadian Recording Industry Association. However, this decision was thought to be significant in that it provided guidance for court rulings on file sharing in the future.[18]
In 2004, the Canadian Recording Industry Association (CRIA) was dealt a blow in its bid to take action against 29 internet users with extensive file sharing activities. The CRIA filed suit to have the ISPs reveal the identities of the 29 file sharers. In the ruling, both the Federal Court of Canada and the Federal Court of Appeal judged that the CRIA's case was not strong enough to support interfering with the defendants right to privacy and questioned whether the CRIA had a copyright case at all based on its evidence. Because the ISPs were not required to reveal the identities of their clients, the CRIA could not go on to sue the file sharers in a manner mimicking the RIAA's legal proceedings in the U.S.A. The court further found that both downloading music and putting it in a shared folder available to other people online were legal in Canada. This decision dealt a major blow to attempts by the CRIA to crack down on file sharers.[19]
2005: BMG Canada Inc. v. John Doe - Appeal
In 2005, the controversial ruling of Justice Konrad von Finckenstein, making file uploading of sound recordings on peer-to-peer systems legal, was set aside by the Federal Court of Appeal. The Court of Appeal held that although the original case should be dismissed due to lack of evidence linking the unnamed defendants to the alleged copyright infringements, the question of the legality of peer-to-peer file sharing must be decided in a future case.
2007: RCMP toleration for personal and non-profit use
Around the same time that the CRIA successfully took Demonoid offline, the Royal Canadian Mounted Police (RCMP) made it clear that pursuing Demonoid's users is not a priority for them. Demonoid came back online in April 2008, but later became hosted in Ukraine.[20]
2015: New copyright law comes into effect
Starting on January 2, Canadian law started requiring that Internet Service Providers forward emails alleging copyright infringement to the person whose IP address is mentioned in the copyright claim. ISPs have not been allowed to charge the claimant for this service. Upon receiving such a notice, they must now retain the IP-account information on file for a period of 6 months or longer if the claimant were to pursue legal proceedings.[21]
Criticism
In 2009, Canada's music sales went down by 7.4%, second only to Spain, according to a report released on April 28, 2010, by the International Federation of the Phonographic Industry. The official synopsis said that "Canada, practically the only government of a developed country not to have implemented international copyright treaties agreed over a decade ago, is a major source of the world's piracy problem. A disproportionate number of illegal sites are hosted on Canadian soil".[22]
In 2011, an excerpt of the executive summary of a report by the International Intellectual Property Alliance stated that "overall the piracy picture in Canada is at least as bleak as it was a year ago, and it is cementing its reputation as a haven where technologically sophisticated international piracy organizations can operate with virtual impunity".[23][24]
Academic research such as one published in a 2012 paper by Robert Hammond (an assistant professor at North Carolina State University) however has found strong positive correlation between music piracy and music sales, and that file sharing benefits more established and popular artists but not newer and smaller artists.[25][26]
Grokster Ltd. was a privately owned software company based in Nevis, West Indies that created the Grokster peer-to-peer file-sharing client in 2001 that used the FastTrack protocol. Grokster Ltd. was rendered extinct in late 2005 by the United States Supreme Court's decision in MGM Studios, Inc. v. Grokster, Ltd. The court ruled against Grokster's peer-to-peer file sharing program for computers running the Microsoft Windows operating system, effectively forcing the company to cease operations.
In computer networks, download means to receive data from a remote system, typically a server such as a web server, an FTP server, an email server, or other similar systems. This contrasts with uploading, where data is sent to a remote server.
Music Canada is a non-profit trade organization that was founded 9 April 1963 in Toronto to represent the interests of companies that record, manufacture, produce, and distribute music in Canada. It also offers benefits to some of Canada's leading independent record labels and distributors.
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 was a landmark intellectual property case in which the United States Court of Appeals for the Ninth Circuit affirmed a district court ruling that the defendant, peer-to-peer file sharing service Napster, could be held liable for contributory infringement and vicarious infringement of copyright. This was the first major case to address the application of copyright laws to peer-to-peer file sharing.
This is a timeline of events in the history of networked file sharing.
Peer-to-peer file sharing is the distribution and sharing of digital media using peer-to-peer (P2P) networking technology. P2P file sharing allows users to access media files such as books, music, movies, and games using a P2P software program that searches for other connected computers on a P2P network to locate the desired content. The nodes (peers) of such networks are end-user computers and distribution servers.
"You can click, but you can't hide" is an advertising campaign run jointly by several international associations, most notably the Motion Picture Association of America and the GVU, as part of the larger "Respect Copyrights" campaign against peer-to-peer file sharing of motion pictures. The associations have long alleged that Internet file sharing, or maintaining a file sharing tracker, network or search engine, constitutes copyright infringement since the practice hurts their revenues.
isoHunt was an online torrent files index and repository, where visitors could browse, search, download or upload torrents of various digital content of mostly entertainment nature. The website was taken down in October 2013 as a result of a legal action from the MPAA; by the end of October 2013 however, two sites with content presumably mirrored from isohunt.com were reported in media. One of them – isohunt.to – became a de facto replacement of the original site. It is not associated in any way with the old staff or owners of the site, and is to be understood as a separate continuation.
BMG Music v. Gonzalez, 430 F.3d 888, was a court decision in which the United States Court of Appeals for the Seventh Circuit ruled that a record company could sue a person who engaged in online sharing of music files for copyright infringement. The decision is noteworthy for rejecting the defendant's fair use defense, which had rested upon her contention that she was merely "sampling" songs with the intention of possibly purchasing the downloaded songs in the future, a practice known informally as "try before you buy".
Arts and media industry trade groups, such as the International Federation of the Phonographic Industry (IFPI) and Motion Picture Association of America (MPAA), strongly oppose and attempt to prevent copyright infringement through file sharing. The organizations particularly target the distribution of files via the Internet using peer-to-peer software. Efforts by trade groups to curb such infringement have been unsuccessful with chronic, widespread and rampant infringement continuing largely unabated.
File sharing is the practice of distributing or providing access to digital media, such as computer programs, multimedia, program files, documents or electronic books/magazines. It involves various legal aspects as it is often used to exchange data that is copyrighted or licensed.
The use of the BitTorrent protocol for the unauthorized sharing of copyrighted content generated a variety of novel legal issues. While the technology and related platforms are legal in many jurisdictions, law enforcement and prosecutorial agencies are attempting to address this avenue of copyright infringement. Notably, the use of BitTorrent in connection with copyrighted material may make the issuers of the BitTorrent file, link or metadata liable as an infringing party under some copyright laws. Similarly, the use of BitTorrent to procure illegal materials could potentially create liability for end users as an accomplice.
Capitol Records, Inc. v. Thomas-Rasset was the first file-sharing copyright infringement lawsuit in the United States brought by major record labels to be tried before a jury. The defendant, Jammie Thomas-Rasset, was found liable to the plaintiff record company for making 24 songs available to the public for free on the Kazaa file sharing service and ordered to pay $220,000.
Copyright infringement is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.
The Recording Industry Association of America (RIAA) is a trade organization that represents the music recording industry in the United States. Its members consist of record labels and distributors that the RIAA says "create, manufacture, and/or distribute approximately 85% of all legally sold recorded music in the United States". RIAA is headquartered in Washington, D.C.
File sharing in the United Kingdom relates to the distribution of digital media in that country. In 2010, there were over 18.3 million households connected to the Internet in the United Kingdom, with 63% of these having a broadband connection. There are also many public Internet access points such as public libraries and Internet cafes.
Music piracy is the copying and distributing of recordings of a piece of music for which the rights owners did not give consent. In the contemporary legal environment, it is a form of copyright infringement, which may be either a civil wrong or a crime depending on jurisdiction. The late 20th and early 21st centuries saw much controversy over the ethics of redistributing media content, how much production and distribution companies in the media were losing, and the very scope of what ought to be considered piracy – and cases involving the piracy of music were among the most frequently discussed in the debate.
BMG Canada Inc. v. Doe, 2004 FC 488 aff'd 2005 FCA 193, is an important Canadian copyright law, file-sharing, and privacy case, where both the Federal Court of Canada and the Federal Court of Appeal refused to allow the Canadian Recording Industry Association (CRIA) and several major record labels to obtain the subscriber information of Internet service provider (ISP) customers alleged to have been infringing copyright.
Torrent poisoning is intentionally sharing corrupt data or data with misleading file names using the BitTorrent protocol. This practice of uploading fake torrents is sometimes carried out by anti-infringement organisations as an attempt to prevent the peer-to-peer (P2P) sharing of copyrighted content, and to gather the IP addresses of downloaders.
Sony BMG Music Entertainment v. Tenenbaum is the appeals lawsuit which followed the U.S. District Court case Sony BMG v. Tenenbaum, No. 07cv11446-NG.
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