Decision offers future disclosure opportunities.

While the Federal Court of Appeal in Toronto today (May 19) upheld a 2004 Federal Court decision denying the Canadian Recording Industry Assn. (CRIA) request for the identities of the 29 alleged large-scale file sharers, it clarified the steps necessary to obtain disclosure of such identities in the future.

As well, writing in a 27-page ruling on behalf of the three-judge panel,
Justice Edgar Sexton said that the Federal Court judge should not have delved into an analysis of copyright in his decision.

The Federal Court ruled March 31, 2004 against a motion by the CRIA that would have allowed the Canadian music trade association to begin suing individuals who make music available on-line. The Federal Court had ruled that Internet service providers Bell/Sympatico, Rogers Communications, Shaw Communications and Telus Corporation could not be forced to reveal the names and addresses of 29 people who allegedly shared a "high volume" of songs with others in November and December 2003.

In his 28-page ruling, Justice Konrad von Finckenstein said that CRIA did not prove there was copyright infringement by the alleged music uploaders. Von Finckenstein further ruled that downloading a song or making files available in shared files did not constitute copyright infringement under current Canadian law.

The appeal court ruling unquestionably opens the door to new file sharing lawsuits by CRIA because it clarifies the evidentiary standards that copyright holders need to meet. It indicates that only a "bona fide" standard is sufficient for disclosure, rather than a higher "prima facie" standard used by Von Finckenstein.

The appeal court also cautioned that data-associating users' IP addresses go stale very quickly, and therefore evidence that is not current may well be sufficient reason to dismiss a motion to disclose user identities.

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

The appeal court decision also concluded: "Although privacy concerns must also be considered…they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode these rights."

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

The importance of intellectual property protection was noted; indicating that with proper evidence, musicians "have a right to have the identity revealed for the purpose of bringing action." However, the appeal court decision argued that care must be taken to ensure that personal information beyond the copyright allegations are not disclosed.