p2pnet - rss feed: BMG Canada v John Doe
p2pnet.net News:- In March, 2004, the Big Music cartel’s CRIA (Canadian Recording Industry Association of America) failed in its attempt to force five Canadian ISPs to hand over the identities of clients.
Now the Canadian Federal Court of Appeal will this week hear arguments in BMG Canada v John Doe as the labels continue in their attempts to bring file sharing and file sharers under their exclusive control, using rulings from courts around the world to intimidate them into buying ‘product’.
Cartel members Warner (US), EMI (UK), Sony BMG (Japan, Germany) and UMG (France) make a practice of using their financial and political weight to have firm rulings overturned.
Their RIAA (Recording Industry Association of America) recently lost its bid to get the US 8th Circuit to grant a rehearing of a ruling invalidating pre-suit subpoenas which would help the RIAA ferret out information on alleged unauthorised file-sharers.
It’s also currently trying to get a p2p-related decision by two US courts reversed – for the third time.
When it gets the names of alleged file sharers, it sends them subpoenas which serve as PR material but which don’t actually result in court cases.
In his March, 2004, decision, justice Konrad von Finckenstein heavily criticized CRIA ‘evidence’ and refused to order the five ISPs to disclose the identities of 29 subscribers.
“We said we were not prepared to compromise,” Shaw Communications president Peter Bissonnette told p2pnet at the time.
The law is stil the law
We asked CIPPIC counsel David Fewer if he’s optimistic about the possible outcome this time around.
“The evidence hasn’t changed, ” he told p2pnet. “And the evidence was horribly weak. I’m very confident that the CRIA’s evidence is no better today than it was a year ago, and the federal court of appeal will say it’s inadequate to give the extraordinary remedy the CRIA is seeking.
“And the copyright act hasn’t changed, although the CRIA is trying to statutorily overturn the trial judge’s decision. But they haven’t suceeded in doing that yet and until we see a bill, the law remains what the law is.”
However, Canadian heritage minister Liza Frulla recently agreed to try to help the Big Music record label cartels by having Canada’s ‘antiquated’ intellectual property laws altered through new copyright legislation, promising to, “give the tools to companies and authors to sue”.
Moreover, in the proposals, she and industry minister David Emerson want a, “ ‘notice and notice’ regime in relation to the hosting and file-sharing activities of an ISP’s subscribers would be provided for”.
Under it, when an ISP, “receives notice from a rights holder that one of its subscribers is allegedly hosting or sharing infringing material, the ISP would be required to forward the notice to the subscriber, and to keep a record of relevant information for a specified time, say the proposed changes to Canada’s Copyright Act,” they say
If the changes go through, the music cartels will victimize Canadians for sharing music online in the same way they do Americans. And that’s what BMG Canada v John Doe (slated for Wednesday, April 20, and Thursday, April 21 at 330 University Avenue, Toronto, 5th Floor) is all about.
Hearing it will be chief justice John D. Richard and justices Marc Noel and J. Edgar Sexton.
Which way will they go?
Richard has experience in IP law and authored U & R Tax Services Ltd v H & R Block Canada Inc (1995), 62 C.P.R. (3d) 17 (FCTD), a decision on the standard of originality required for copyright. He opted for a “sweat of the brow” standard, meaning all that’s required for copyright to vest is the expenditure of labour (so the white pages - simple databases - would merit protection).
The SCC overturned this standard in the CCH case, holding that more is required than mere mechanical labour - that skill and judgment are necessary as well.
This means merely mechanically assembled databases don’t enjoy copyright protection in Canada.
Justice Noel penned the Court of Appeal’s December 2, 2004 decision in Amico Imaging Services Inc v Canadian Private Copying Collective, 2004 FCA 412, the “private copying decision”.
This suggested that “devices” aren’t “media” for the purposes of the private copying decision.
CIPPIC associate Alex Cameron and outside lawyer Howard Knopf will again act as counsel for CIPPIC.
Something you think we should know? tips[at]p2pnet.net
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See:-
lost its attempt - Keep on swapping! Cdn file sharers told, p2pnet, March 31, 2004
invalidating pre-suit subpoenas - 8th Circuit says No to RIAA, p2pnet, April 14, 2005
third time - Grokster v Hollywood, reloaded, p2pnet, January 25, 2005
court cases - File sharing, p2p criminals, p2pnet, March 12, 2005
compromise - UK ISPs will name clients, p2pnet, October 15, 2004
agreed to try to help - Frulla backs Big Music, p2pnet, April 5, 2005
April 19th, 2005 at 1:05 am
Nowhere in this article is one of the most important facts mentioned:
Canadians PAY for copyright fair use/infringement. Each and every ‘music CD’ sold in Canada is levied, as are cassettes and other media.
It’s a farce for the CRIA to collect the MILLIONS upon MILLIONS of dollars each year from this unwanted TAX, and then to use this money to go after their VERY CUSTOMERS.
Someone PLEASE… EFF.ORG… someone, ANYONE! Start a campaign against this, start lobbying the government, and the opposition parties as well… to try and get this extremely wasteful, corrupt and vile system (the one proposed) knocked out before it starts.
If we all sit back and do nothing (very Canadian, to just shrug at being screwed) then we’ll just be another USA.
Don’t let AMERICAN corporate interests corrupt our Law, Order, and Good Government! (well, the founders had a good idea, but I think that last part was a pipe dream).
April 19th, 2005 at 1:38 am
are you just reposting my points….;)
TT
April 19th, 2005 at 1:39 am
well hopefully Frulla will be booted soon with the rest of the corrupt liberals…but of course they’re aware of this as well, time to ramrod legislation thru right CRIA?! stupid muth$^%^$&$&
TT
April 19th, 2005 at 4:54 am
We too, pay a tax because we “could” use blanks for recording copyrighted files. Somehow that was neglected to be removed when all this crap was going on. This tax has been paid since the days of cassette tapes, supposedly to pay royalites to the artists. To my knowledge not one artist has recieved any funds from it, inspite of several lawsuits by some of those artists to recoup some of the funds. Only one of those corporations is American, the rest are as foreign to us as they are to our northern neighbors. Sadly it looks as though Canada also has its bought lawmaker willing to do the bidding for the majors for a price.
While I never made fun of Canadians for not having to deal with these sort of idiots, I am sad to see you guys face the same sort of stuff we are dealing with. Talk to your friends, talk to your neighbors, tell them that the majors are attempting to do what they have done here and purchase their laws. Surely the Canadians are proud people and would resent such influance upon their lives as what this will bring. I would also add that now is the time to join the boycott, not for a week but for life or until they mend their ways.
Part of what is driving all this is WIPO. Folks in Canada need to get active in it and what it is doing. What it is doing is setting up international standards for Intellectual Property and that is what is driving the push to have Canada reform to the same setup. Not doing so will push Canada onto less favored trading status with the world. Notice I didn’t say with the Americans.
Grab a willing hand and join against fight of monopolies that these megacorporations are trying to foist off on the world. It is nothing good for the average citizen, no matter what country they are from.
“Corporations have all the benefits of a man without benefit of a conscience.”
April 19th, 2005 at 4:47 pm
So, other than posting this message here, what have you done? Have you written to your MP? Have you written a letter to the editor of the National Post or the Globe and Mail? Have you signed that petition that was presented to Parliament?
You’re asking for someone, anyone, to help but we’re a small voice alone. If you feel this strongly then you need to work for the cause and not stand on the sidelines hoping someone else will come to your rescue.
April 20th, 2005 at 12:48 am
I like the opposition. but I fear they would also sell out Canadians….
April 20th, 2005 at 12:55 am
All we need to do is tell ebveryone they are trying to implement AMERICAN laws to suit US corpoerate music business,
I like the US and its people, but Canadians (mostly) define ourselves by being “not American.”
It’s sad, but the tactic/method WILL work.
NO politician wants to be seen supporting US interests (real or imagined). It would be political suicide… We have no “Leaders” here…. only poll-driven, lobby-supported, reaction oriented hucksters.
Take note of recent decisions on missle defence, Iraq. etc.
April 20th, 2005 at 12:57 am
so sorry about the typos.. feeding youngster & typing w/one hand!!!!
April 20th, 2005 at 1:03 am
Yes, Yes, and Yes. Also regularly forward info from this site and others to friends/family, etc…..
The reason we ask for help, is due to the $$$ and clout that corporations weild in the modern political arena. IMHO, politicians here regularly ignore the citizenry, in favour of those with deep pockets.
(Hence we have AdScam, where they lined their pockets with our own money, using money-laundering techniques)
Also, mainstream media needs to be rallied, and Globe and Mail surely doesn’t care much about a few petitions. They are submitted for a multitude of reasons every day.
Look at the farmer protests, look at the G7/G8 protests. Nobody cares.m They aren’t lining their party coffers with donations, so nothing will happen unless some big corp/media get on board.
April 20th, 2005 at 4:28 pm
erm why would levies matter? The case surrounded the file sharers making their media available to everyone else. This is about geekboy@kluzaa (and 28 others) uploading their copy of twisted sister to other users. This wasn’t about geekboy@kluzaa downloading twisted sister for his own use. So why would the levy matter in this case? The levy was/is for compensation for downloading NOT uploading. Dowbloading and uploading are covered by 2 seperate sections in the Act. Even the legal experts weren’t able to agree on whether uploading was legal in Canada but all agreed on downloading.
I highly doubt CRIA will win round 2 based on the evidence they presented to the court first time around. In Canada you need a “copyright certificate” as evidence of ownership and it needs to be presented to the court as part of the case, they didn’t present any. In fact Media Sentry which was hired to monitor p2p traffic didn’t listen to a single file. So who knows what was on those 350+ files that geekboy@kluzaa (and others shared) did they even infringe on someones copyright? We don’t know. Media Sentry also got one of the IP’s wrong - either Shaw or Rogers (can’t remember which ISP off the top of my head) pointed out that one of their IP’s wasn’t even being used at the time Media Sentry said it was …. ooops!
In short crappy case, crappy evidence, crappy lawyers = failure.
April 20th, 2005 at 4:42 pm
I must agree and say that Canada should not be tainted by the greedy money mongers in America. Canada stand up for what you believe in and don’t let greedy rich people control what you listen to.
April 20th, 2005 at 5:50 pm
Maybe the cartel should be looking at itself more closely and clean up their act instead of criminilizing youth for sharing music. What the cartel does is really big time crime. Jusr read on.
After reading an complaint article of a Mexican web log, how their anthem wa “owned” in the U.S.A, I investigated a litle and came up with this.
BMI (a major American licensor of copyrights on behalf of the copyright owners) licenses 24 latin american national anthems says it all. This can be verified at http://www.bmi.com. 18 of these national anthems appear as composed by a single composer, a musical genius known as Ricardo Romero. A title search for “himno nacional” at http://www.bmi.com will show the latin american licensed anthems.
The American national anthem, The Star Spangled Banner too is licensed by BMI. For other countires I did not check but I imagines that their national anthems are also owned by someone and are also licensed through BMI or someone else.
Now, if natinal anthems of countries can be owned and exploited by someone in the U.S.A., why not the ancient scriptures or the Bible? After all we do not know for sure what Greek and Roman commom laws said about copyrights and anyway, they did not apply to the U.S.A.
By the way, BMI licenses the national anthems of the latin american countries in the countries of the anthems through partnership organization in those countries. For example, the BMI repertoire of songs, wich included the Mexican anthem, is licensed in Mexico through a BMI partner (SACM) organization in Mexico. Some Mexican think their anthem was stolen by the Americans. In Mexico the anthem is in public domain because the last author died in 1908 and because of a national anthem law.
This is the good neighbor policy gone berserk, through the copyright system. Copyrights were suposed to be to promote the creation of artistic works but is mostly promoting theft.
April 20th, 2005 at 5:54 pm
Iam sorry. The article about how the national anthems are licensed by BMI was written by me, Rafael Venegas.
rafa@venegas@hotmail.com
April 21st, 2005 at 1:06 am
Sorry, but it’s true.
Government works for whoever has the most money.
April 21st, 2005 at 1:29 pm
So what are these 29 psuedonyms anyway?
April 21st, 2005 at 2:40 pm
I want to make sure that everyone reading this important article knows about http://CANFLI.org (Canadian Filesharing Legal Information network) which is a site run by Canadian law students to inform others about legal issues around filesharing. There is also the Canadian Internet Policy and Public Interest Clinic http://cippic.ca which is a group of law students, law professors and lawyers who have been involved in this issue to the level of representing our rights in court.
I also want those who think that “the government listens to those with money” to realize that this attitude is self-fulfilling. When people don’t believe they have power, and say nothing to government, they are correct.
Canada is about to head into an election. There will be a large amount of election related and per-riding discussion areas on http://digital-copyright.ca . If you believe this is an important issue to you then put your time where your heart is and get involved in our lobbying efforts.
Russell McOrmond - http://flora.ca
April 22nd, 2005 at 10:42 am
http://canfli.org has a complete list, geekboy@kazaa is prolly the most well known out of the bunch though (easy to remember)