The music industry's fight against peer-to-peer copyright infringers is gathering strength in courts around the world. Yet some tech-oriented lawyers and others who disagree with the labels' legal str


The music industry's fight against peer-to-peer copyright infringers is gathering strength in courts around the world. Yet some tech-oriented lawyers and others who disagree with the labels' legal strategy and recent court decisions are using the industry's occasional in-fighting to garner attention for their positions.

An easy issue to exploit is the longstanding perception that the label strategy does not have artists in mind. This is the focus of an influential law professor's articles as the Canadian Recording Industry Assn. praised that country's Supreme Court's refusal on July 28 to review an appellate court's judgment against imposing tariffs on such digital audio recorders as iPods and other MP3 players.

Last December, the Federal Court of Appeal in Ottawa held that non-removable memory permanently embedded in DARs is not "blank audio recording media" as defined in the Canadian Copyright Act. (The definition for blank media covers any medium "ordinarily used by individual consumers" to reproduce certain sound recordings.)

Therefore, Canadian DAR manufacturers and importers do not have to pay a levy for each unit commercially distributed.

The CRIA praised the Supreme Court for leaving this decision intact, calling it "a positive step in clarifying unauthorized file sharing as an illegal activity." CRIA president Graham Henderson says, "For years, those supporting unauthorized file sharing have misleadingly used the existence of the private-copying levy to justify illegitimate file sharing."

The CRIA interpreted the decision to say that DARs are not subject to the levy because the hard drives are devices -- not media -- which means that file sharing to hard drives of any kind (including those in home computers) is illegal.

Canadian law professor Michael Geist, whose opinions are widely circulated in North America, writes that by taking this position, "the CRIA is now going to war not only with its customers, but now also with its artists" since artists benefit from private copying levies.

He also argues that if the CRIA interpretation is correct, then copying a store-bought CD onto an iPod would be illegal.

The court decision did not specifically address what private copying means; it focused on the Copyright Act's definition of blank audio-recording media.

The Canadian Copyright Act legalizes copying recorded music for private use as long as the purpose is not to sell, rent or distribute the copy; to perform the recording for the public; or transmit it to the public through telecommunication.

In return for allowing copying for private use, the law requires manufacturers and importers of blank audio-recording media distributed in Canada to pay a levy (or tariff) to the Canadian Private Copying Collective. The CPCC then distributes the money to rights holders' collecting societies. The Copyright Board of Canada, which sets tariffs and regulates these levies, has set rates for audiocassettes, MiniDiscs, CD-Rs and CD-RWs.

When money was due for 2003-2004, the CPCC asked the board to impose levies on several new types of media, such as DVD-Rs, DVD-RWs, removable electronic memory cards and non-removable memory permanently embedded in DARs.

The board decided that DVD-Rs, DVD-RWs, removable memory cards and removable micro hard drives are not subject to private copying levies because individual consumers do not ordinarily use them for copying music. But it did determine that DARs are used to copy music and therefore set a tariff.

On appeal, the Canadian Storage Media Alliance -- the trade group for major manufacturers and importers of blank media -- argued that players with embedded memory do not fall under the definition of blank audio-recording media, so they are not subject to the levy.

The court agreed, noting that when the levy provision was adopted, Canadian Parliament was aware of proposals in other countries -- including the United States -- that extended levies to hardware that recorded and played blank audiotapes. U.S. law also specifically requires manufacturers and importers of DARs to pay royalties. Yet Parliament chose to limit the levy to blank media.

The court sympathized with the piracy issue. "The evidence establishes that these recorders allow for extensive private copying by individuals. Their use can potentially inflict on rights holders harm beyond any 'blank audio-recording medium' as this phrase has been understood to date," it wrote. But the court said that Parliament should decide whether to extend the levy to DARs.

How much this decision clarifies rights in connection with unauthorized P2P file sharing is debatable. Yet painting the CRIA position as targeting artists rather than supporting a broader purpose is unfortunate.

"Artists will more than make up for any curtailment of the levy system as a result of increased sales in the legal market place," Henderson says.