Is this April Fools Joke - "downloading not guilty"

bbchris

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www.theglobeandmail.com/s...s/Canadian

Ruling deals blow to music industry

JANET McFARLAND looks at what's next after downloading judged not to violate copyright

By JANET McFARLAND

Thursday, April 1, 2004 - Page B4

Thursday, Apr. 1

A much-anticipated court decision released yesterday was supposed to clarify the rights of Internet access providers to protect the privacy of their customers. But in a surprising twist, the Federal Court's decision went far beyond privacy issues, dealing a huge blow to the Canadian music industry and its efforts to stop Internet users from sharing music files.

Mr. Justice Konrad von Finckenstein ruled yesterday that the Canadian Recording Industry Association (CRIA) failed in all respects to make a case for requiring Internet companies to turn over the identities of big music downloaders. CRIA, he said, didn't prove it could identify who had shared the music files, nor whether the specific music files at issue in the current lawsuit infringed copyright rules, nor whether there was any other way the music companies could have found the identities of the Internet users.

But the biggest blow to the music industry came when Judge von Finckenstein addressed the broader question of whether there was evidence of a legal violation that would justify revealing the private identities of Internet users. He concluded that sharing music files doesn't constitute copyright infringement at all.

Unless this stunning conclusion is overturned by a higher court, the music industry has just seen the door slam shut on almost any lawsuit against people who distribute music on shared file systems.

According to Judge von Finckenstein, there was no evidence that the 29 people who were allegedly copyright infringers either distributed or authorized the reproduction of song files. They simply placed personal copies of songs into shared Internet directories, which were accessible to other Internet users. These peer-to-peer -- known as P2P -- systems are the most common way music files are shared on-line today.

According to the judge, placing files on a shared directory does not amount to distribution of the files. Before it constitutes distribution, he said, there must be a "positive act" by the owner of the shared directory, such as sending out copies of the files or advertising that they are available for downloading.

"I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service," he wrote. "In either case the preconditions to copying and infringement are set up but the element of authorization is missing."

For music lovers who swap files on the Internet, this is an almost complete victory. Only the most unusual cases in which individuals actively promote or advertise their files for copying could conceivably result in a lawsuit.

"This is a victory for new technology and the Internet, and for the rights of users of new technology in Canada," said Howard Knopf, the lawyer who represented the Canadian Internet Policy and Public Interest Clinic as an intervenor in the case. "It's now abundantly clear, if it was not before, that downloading songs from the Internet for personal use and merely making them available to others is not infringement of copyright in Canada."

The question now is how the music industry will respond.

The companies involved in the lawsuit -- which include all the big players such as BGM, EMI Group, Sony Music, Universal Music, Warner Music, Capitol Records, Virgin Records and many others -- say they expect to appeal. "In our view, the copyright law in Canada doesn't allow people to put hundreds of thousands of music files on the Internet for copying, transmission and distribution to millions of strangers," CRIA president Brian Robertson said in a statement yesterday.

But if the legal avenue doesn't work, what's Plan B?

Here's a suggestion, likely to be unpopular.

Do nothing on the legal front, and let people continue to copy music files just like they have copied songs and movies and TV shows on cassettes for years. It's a frustrating solution, because a huge amount of revenue is lost when people copy music instead of buying it. But the problem is not easily fixed with legal action. The ruling yesterday shows the courts have little sympathy for the cause. And the Internet is too large to police effectively anyway; websites and file-sharing service are too easily shifted to plug every hole.

The music industry has only two workable solutions. One is to continue to encourage the development of paid music sites on the Internet, such as Puretracks.com, where people can legally download individual songs for a small fee, knowing the artists get part of the fee as compensation for their work.

These services won't appeal to many users, who still want free music, but they may attract a growing audience, especially as shopping becomes more commonplace on the Internet. Many users have seen viruses cripple their computers from downloaded material, and have decided they'd rather pay $1 for a song that is guaranteed to be authorized and bug free. The music from authorized services is also high quality, taken from the original master recording. The services also generally provide fast downloads, and don't require users to "share" songs from their own hard drives, allowing a business transaction to be a simple one-way street.

The other solution has already been introduced for the music industry, but may have to be expanded. This is to collect small special surcharges to cover losses from music downloads. Such a charge already exists on recordable CDs and on MP3 players, and there have been proposals to also add a surcharge on Internet use to further compensate the music industry. Consumers have so far been willing to accept such surcharges -- many people don't even know they exist -- so this solution actually seems practical.

Beyond these solutions, the music industry must at some point simply cope with the changes wrought by the Internet, much as the industry coped with the invention of the radio or recordable cassette tapes or other competing technologies. Even if yesterday's ruling had favoured the recording industry, legal action would probably never have been a broadly effective way to stop people from using the Internet to share music. The industry should consider whether it wants to spend more money fighting a pointless court battle or whether it should focus on more fruitful, long-term solutions to its problems.

droolymutt

Are you kidding?

I LOVE downloading....!

oh.. - wait....

You're talking about p2p...

My mistake.

Carry on.

droolymutt

uploading is fun, too.....

:ghost

RonOnGuitar · Joined: 08 Jan 2003 Posts: 1916

Not a April Fool's story, Chris. At least not in Canada, lol.

There's more background on this here Blame Canada .Canada is much more "hands off" on filesharing than most other countries. I believe it may be technically legal for non-Canadians to download from the Canucks who are using Canadian-based internet access/resources.

So now a person can go by Canada, drop in a pharmacy to pick up some pot and spend a weekend in The Great White North toking and downloading music to their heart's content.

Of course, they'd have to find someone with their taste of music to download from, instead of just the "best of" Rush and Guess Who collections. As far as the pot goes, well here in MInnesota (just below Canada) the home-grown variety is mockingly called "Minnesota Green". So if I were a user, I probably wouldn't get too excited about anything grown even further north. Sure, the summers are okay at these latitudes, but it's not quite like Maui, hahaha!

It's so stupid that the record industry is fighting the idea of filesharing. One "freebie" cut to fileshare per CD seems like a great way to whet the listener's tastebuds and increase buzz, distribution, sales of the CD or purchase of other cuts from it via OMD. They're stuck in mid-20th century thinking, struggling against the new mediums instead of taking advantage of them. Ah well, at least it keeps it wide open for the virtual labels and indie artists!

Jake Cepheus · Joined: 30 Jun 2002 Posts: 155

Here's a link to the opinion...

BMG Canada et al v Jane Doe et al

Geekboy@KaZaA is now officially an internet legend, he's the screen name who had the honor of getting mentioned in the decision. :lol

I think (but I am not positive) that that is the first time I have ever seen a judicial decision specifically refer to an internet user by their screen name and identify the user as a semi-important figure in the case, even though the user's actual identity was (and still is) unknown.

bbchris

Wonder if Geekboy is tall.... :eyes

Jake Cepheus · Joined: 30 Jun 2002 Posts: 155

I'd be tall if I were in Asia.

Just average here in the US, though. :lol

bbchris

Are you confessing Jake? :wgrin

Jake Cepheus · Joined: 30 Jun 2002 Posts: 155

I am not him. :lol

I can't even get my internet connection to work right half the time, much less spoof my IP so it looks like I'm using a Canadian ISP.

bbchris

hahahaha How ARE you Jake? How's work going? Are you still making music? It's lovely that you pop in from time to time!!!

Chris K Productions · Joined: 05 Apr 2004 Posts: 2

p2p file sharing is the issue, isn't it? Downloading has never been illegal ... what is illegal is re-distributing those songs via all other means, including, but not limited to, taped copies, cd mix copies, uploading, file sharing, etc ... that's where the issue gets sticky ... with cassettes and cds there's a built in amount of money that goes to offset the minimal amount of product being duplicated and "shared." With file sharing, there's no walls, so to speak ..

Right now, I'm liking the diversity and ease of using Rhapsody, iTunes and Roxio's Napster ... all of which, for a reasonable fee have more music than I'll EVER listen to ...

The times they are a changing ... new DRM technologies, wedded to formats like Weedshare, www.weedshare.com, not only accept the inevitability that we like to share our music, but encourage us to do it by offering incentives ... and Weed is not alone in this model ... there will be a couple of major distributors jumping on it by year's end.

Chris K.

Artist Services & Promotion - Hapi Skratch Entertainment

Vice President

Colorado Music Association

bbchris

Chris!! So impressed to see you here. Thank you so much for your input on this subject. I always like to read your postings as I feel you often put in great thought into what you write. :banana

Seismic Anamoly · Joined: 22 Aug 2002 Posts: 3039

Quote:

So...What is WEED?

You can play Weed files three times for free on any PC. After three free plays, you're asked to pay for the file.

You can use any current Windows Media-compatible player software to play the file. The Weed Media Activator is used to purchase it.

Once you purchase a Weed file, you're free to play it all you want on up to three PCs. You can also burn the Weed files you buy to CD and play them on your stereo, or transfer them to portable devices, like the Creative Labs Nomad, the RIO S10, or any current Windows CE PDA.

Best of all, you can share Weed files with anyone you like, as long as the files remain in their original form as Windows Media files.

And if someone you share a file with purchases that file, you'll earn a percentage for helping to distribute it. The more places your file can be found, the more you aim to make... and, as mentioned before:

The rights holder (the artist or label) gets 50% of every sale . . . FOREVER.....you get 20%, the person who shared the file with you gets 10%, and the person who shared the file with that person gets 5%. Weed collects the remaining 15%.

If you do decide to re-distribute the files you purchase, you will need to create a PayPal account -- if you don't already have one -- since all Weed transactions use Paypal for payment and withdrawl of money earned. All purchases and distributor payments are done through your Weed account. Deposits and withdrawals from your Weed account cost 50 cents, but all other transactions are free.

Cool...now all you have to do is click...

HERE...

....scroll about halfway down the page to the middle and download the Weed Media Activator, set it up and get your FREE 5 buck credit, down all 5 of my Weeds from the site and buy them...doesn't cost you a dime!!! AND you can sell them to whoever you want for a buck each and get 20 cents every time you do forever!! Buy, Buy...Sell, Sell!! :lol

How's that for a sales pitch?? :bcool

Jake Cepheus · Joined: 30 Jun 2002 Posts: 155

Quote:
How ARE you Jake?

Very well, thank you (and I hope you are, too).

Work is good, although I want to switch to the public defender's office (the private sector is cool and everything but I'm feeling the need for some time on the front lines).

Still recording, concentrating on improving.

bbchris

Seismic!! What a great idea!! hhahahhaahhahahaha Thanks for the marketing tip!! Hey I still haven't had time to check out weed, the site, the files etc. - must do it when I get back from Australia....

JAKE!! So happy to hear you are still recording. I like your work. :banana