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Canadian Federal Appeals Court Upholds Privacy Rights - For Now
May 19, 2005
Thomas Mennecke
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The Canadian Federal Court of Appeals has upheld a lower court's ruling, ruling the CRIA cannot force ISPs to divulge their customer's personal information. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) a consumer rights organization similar in nature to the EFF (Electronic Frontier Foundation), heralded this event as a "landmark privacy decision."

In February of 2004, the CRIA, an organization very similar to the RIAA, launch a lawsuit campaign aimed at P2P file traders. Like its RIAA counterpart, the CRIA targeted the FastTrack network. In total, the CRIA filed 29 lawsuits in Canadian Federal court. However, much like the RIAA, they could only identify the individuals by their Kazaa pseudonym and the matching IP (Internet Protocol) address.

In order to match the pseudonyms and IP addresses to actual individuals, the CRIA attempted to compel the associated ISPs to divulge their customer’s personal information. However the ISPs resisted, and the case winded up in Justice Konrad von Finckenstein's court. After three days of testimony on March 12-14, 2004, Judge von Finckenstein dismissed the case on March 30th, 2004. Justice Finckenstein dismissed the case because the CRIA failed to provide sufficient evidence. In addition, Judge Finckenstein found the CRIA's evidence was deficient in many other areas:

• CRIA’s evidence was mostly hearsay, when the individuals with specific knowledge were otherwise available to provide the evidence;

• CRIA provided no evidence that the allegedly infringing files were in fact copies of the plaintiffs’ sound recordings rather than “spoof” files distributed by the plaintiffs themselves;

• CRIA provided no evidence on how it linked the defendants’ Kazaa pseudonyms to the IP addresses of the ISPs’ customers;

• CRIA’s evidence failed to establish that the ISPs were the only practical source of the identities behind the pseudonyms; and

• CRIA delayed several months after gathering its evidence before filing its motion, increasing the serious risk identifying an innocent account holder.

The CRIA appealed the case on April 20, 2005, in Canada's Federal Court of Appeals. Once again, the CRIA attempted to force Bell/Sympatico, Rogers Communications Inc, Shaw Communications Inc., TELUS Corporation and Videotron Ltd. to divulge the personal information of alledged music pirates.

"We would prefer not to be in the courts, but illegal downloading has a drastic effect on the careers of artists," says CRIA President Graham Henderson. "In Canada the number of unauthorized downloads dwarfs the legal marketplace. This activity takes place on an unthinkable, massive scale. According to a recent POLLARA Inc. study, each month Canadians expropriate, without any compensation, 134 million music files. Artists get nothing in return. By contrast Canadians legally download a mere one million tracks per month from our online legal music downloading services including iTunes, Puretracks and Archambaultzik."

In a ruling issued today, the Canadian Federal Appeals court rejected the CRIA's appeal. Justice Edgar Sexton, Justice J. Richard and Justice Marc Noël unanimously agreed with Justice Finckenstien on most issues. However, the degree where privacy rights should be protected yielded a silver lining for the CRIA.

Under Justice Finckenstien, the bar of evidence required by the CRIA was high. Justice Finckenstien required the CRIA to provide "prima facie" evidence of wrong doing. This means the evidence presented must be significant enough to draw a conclusion of fact unless otherwise contested.

This level of evidence required by "prima facie", according to Justice Saxon, would make copyright protection difficult to maintain. Because the CRIA does not know the specific identities of the individuals or the precise degree of infringement, providing "prima facie" evidence would be next to impossible.

"The plaintiffs would be effectively stripped of a remedy if the Courts were to impose upon them, at this stage, the burden of showing a prima facie case."

Justice Saxon recognized the rights of individual privacy, however also notes the rights of copyright holders must also be protected.

"Although privacy concerns must also be considered, it seems to me that they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode those rights."

Instead of requiring "prima facie" evidence, Justice Saxon lowered the bar to "bona fide" evidence. This significantly reduces the burden on the CRIA. "Bona fide" reduces the level of evidence to a matter of good faith. In the future when the CRIA intends to bring action against an idividual for copyright infringment, they only have to present the eveidence they have, "and that there is no other improper purpose for seeking the identity of these persons." The RIAA's current lawsuit campaign works virtually identical to the "good faith" philosophy.

Has this been a great privacy victory for Canadians? Perhaps for today it has. Today, the ISPs do not have to hand over the 29 identities to the CRIA. But the CRIA's campaign is far from extinguished. Today's ruling merely clarifies what the CRIA must do in order to seek an alledged violator's identity. In fact, today's ruling has made it significantly easier for them.


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Technology News :: Organizations/Initiatives

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