TORONTO -- While the Federal Court of Appeal in Toronto May 19 upheld a 2004 Federal Court decision denying record labels' request for the identities of 29 illicit file sharers, it clarified the steps


TORONTO -- While the Federal Court of Appeal in Toronto May 19 upheld a 2004 Federal Court decision denying record labels' request for the identities of 29 illicit file sharers, it clarified the steps necessary to obtain disclosure of such identities in the future.

The Federal Court on March 31, 2004, held that Internet service providers Bell/Sympatico, Rogers Communications, Shaw Communications and Telus Corporation -- raising privacy concerns and procedural objections -- could not be forced to reveal the names and addresses of the users who allegedly shared a "high volume" of songs with others in November and December 2003. In its 28-page ruling, the lower court also held that downloading a song or making files available in shared files did not constitute copyright infringement under current Canadian law.

The appellate court wrote that the Federal Court judge should not have delved into an analysis of copyright law in its decision. It then described procedures by which it believed the labels could pursue the identities -- filing a motion for leave to examine a person for discovery and seeking an equitable bill of discovery to determine "the name of the wrongdoer" if the labels can establish "a bona fide claim against the proposed defendant."

The court concluded, "Thus, in my view, in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of brining action. However, caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way."

Canadian Recording Industry Assn. president Graham Henderson says, "We can make the test by the Federal Court of Appeal so easy. We will be back in court very quickly with more names, or we can go back with the right affidavit evidence of these 29 names. Large-scale uploaders are going to be accountable for their actions."

A key element of the appellate court decision, says Henderson, was that "where the court balanced privacy and copyright, copyright won."