Rasch @ Security Focus had an excellent article once upon a time (I'm too lazy at this point to dig up the URL) that made this distinction very clear for Canadian and US law. Obtaining the material isn't the issue, its the distribution of material. Copyright governs the distribution of works protected by copyright, so of course the sharing, ie. distribution, is key to the RIAA's dastardly plans.

Exactly, alien.

Jay Currie's original article related to the RIAA-style law suits, and clearly we are not protected in Canada from these lawsuits. They targeted prolific file sharers who went beyond "unknowing sharers who forgot to turn off filesharing" to those who were SuperNodes or shared an incredible number of files, so much so that it would be almost impossible to be unknowningly.

Unfortunately for us, P2P networks will fail without sharers. Downloaders may be protected, but what will they download if nobody can share?

The s. 80 protection is tempting to look at for an "out" of the RIAA situation, but it offers us nothing substantial in the longterm. Short term, you'll have to forgive people who decide it's just much easier to be a Canadian leech.

But does this mean that, if your file was unavailable to anyone else while someone else is copying it, the copying would then be legal? One could argue in that case by analogy with the CD: The CD, while loaned, is unavailable to me, so it's just a loan. The copy is a new copy, and then the CD gets returned to me. The copy could then be loaned out, too.

If that argument is available, then all the p2p systems need to do is lock the file while uploading, no?

Well, I'm glad that making you a lawyer means you know the outcome of unsettled law. I am certain that your arguments have merits, but I believe them to be wrong. You are certainly not in a position to say how it actually works, nor am I. We can only express our opinions.

Jack's computer did make a copy for sure, regardless of your argument. My argument is that two copies were made. First, and this is indisputable, a copy was made when he copied the song from its source to the MP3 file on his hard disk. That's a protected copy under s. 80 as long as he did it for personal use. Listening on walkman, playing at his house, etc. As soon as he shares it, that copy is no longer a private copy, but a very public one. His original copy of the song is now in violation of the Copyright Act.

A second copy is made, in my opinion, when Frank's computer requests the song, Jack's computer makes a copy of that song for Frank. Frank takes said copy (from memory) and stores it on his hard drive. This may happen simultaneously, but there are two separate copies here: Jack's computer makes a copy and it is sent to Frank. Frank's computer takes this copy and saves it. Frank's copy is probably protected. Jack's copy is problably not.

So, we've got two copies by Jack, one by Frank. Let's assume that you're right, and that Jack, when Frank requested the file, didn't make another copy. So we've got one copy by Jack and one copy by Frank. The problem is, Jack's first copy infringes: he shared the file.

Last, I wanted to touch on your LAN analogy. That is considered private copying because of how the Copyright Board has interpreted "private," to mean your domestic setting. The Internet is no longer a private setting, it is a public one, especially when you have no control over who downloads your song. Frank would presumibly need permission to get into Jack's house to make the copy in your analogy. Do KaZaA downloaders individually need permission?

Cheers, Ryan Black

Remember, there are (in my opinion) two copies. In the very least, there is one copy.

The first copy is when the MP3 file is stored on the hard drive, having been taken from some source (a CD, the radio, a download off of KaZaA, etc). This copy, as long as it's for private use, is totally legal.

I don't think you or I or anyone else would disagree that this is a copy.

However, it is my submission that a second copy is indeed made by the serving computer when a P2P user requests a download. The serving computer uploads a copy of the information to the P2P user. Using the MP3 file stored on the hard drive, the serving computer copies the files to memory and then sends them as packets across the network. That's my opinion, it's how I would analyze it.

But let's suppose that you're right, and that my second copy, in fact, does not exist. The first one inarguably does. And as soon as you make that copy available to the public or send it or share it or play it at a party, it is no longer for private use and you are suddenly not within s. 80 protection. You are therefore infringing, and whether the sharer made a *second* copy or not is irrelevant.

There is no gray area with that first copy, unfortunately. As soon as it is not for private use, it is not a Private Copy.

Cheers, Ryan

OK, it's sent bit by bit, but that entire process would constitute a copy.

Let's take your example, Jack and Frank were e-mailing back and forth so that Frank could get a copy of a book. Frank asks, "Could I have page 1?" So Jack scans in Page 1 and sends it to him. (Or photocopies and sends it by regular mail). When Frank gets page 1, he repeats the request for page 2, and so on until the book is complete.

I don't think any reasonable judge (or person for that matter) would say that Jack didn't make a copy for Frank. Clearly, he did. Frank assembled the copy (so in essence, he made a copy for himself, too), but Jack nonetheless made copies of the material so that they could be sent to Frank piece by piece.

In Canada, there is a case involving a law society which would fax to its members, on request, legal journal articles. Faxes work much the same way in that individual lines or packets of lines are sent (this is my understanding, please don't shoot me if I'm wrong). This was still held to be copying.

I hope that clears up what I meant by a "copy" being sent. I am aware that information is sent in packets, and that these are actually micro-parts of the entire file, but I still think that technical distinction is not persuasive.

Yes it does, for a whole bunch of reasons.

Further, your analogy of the photocopier would require some additional facts to be completely analogous: the fact that it's Jack's copy machine, Jack has made said photocopier available to the public at large, and the piece of paper is, in fact, a photocopy of a copyrighted material.

First, 80(2) says a private copy infringes if it is distributed to the public via telecommunication. Second, it's not even a private copy anymore because it now has this other use of being photocopied by Jane through Sally. Third, the copy that Jack made originally (i.e. his photocopy of the copyrighted work) is no longer a private copy protected by s. 80. Fourth, Jack acquiesced or fully knew that people would be coming in and taking copies. Last, Jack's photocopiers copied the work into memory to create a second version of it.

All or some of those may stick, but if you ask me, there is no question that Jack is in trouble.

Of course, s. 80 doesn't apply to photocopying, but I'm using the anaolgy.

However, you are making a copy of my file. My computer is not making a copy. There is never more than one copy on my computer at any time.

My computer is not making a copy. There is never more than one copy on my computer at any time.

When your p2p app (or player, or anything) uses that data file on your disk, it is copied into main memory. Therefore, there is more than one copy on your computer every time you use it and your argument is false.

The only difference with p2p is that the playback/recording machines are more sophisticated and the analogue cable is replaced by a set of connected digital cables (i.e. the internet). The end result is the same, and is exactly what the lawmakers had in mind when the law was enacted.

Don't argue too far by analogy, it's not really proving your point.

If I set up a file and allow the entire public to download it at their whim, the copy that I made of the file (i.e. the MP3 file I have on my hard disk) is no longer for private use, and hence is no longer protected by s. 80. It doesn't matter who technically makes the second copy (The file that is transmitted over the internet to the new P2P user).

Clearly, sharing files over P2P is not legal in Canada.

I have allowed others to reproduce the recording for their own use, something which is expressly permitted by s. 80.

If allowing reproduction of the recording by another were to consitute non-private "use" of the recording, the purpose of the section would be defeated.

I believe that you are quite incorrect, though I wish I could be persuaded by your argument.

If you allow your copy to be reproduced, it can no longer be said to be for YOUR private use. It is now for the use of others, as well.

You are not allowed to let others reproduce a recording for their own use under s. 80 of the Act. It does NOT protect the person who facilitates a copy. It protects the person who keeps the copy for themselves. It protects the person who makes a copy of a song so that HE OR SHE can listen to it privately.

It does not protect the person who makes a copy so that SOMEONE ELSE can copy it.

The purpose of the section was to allow someone to make a copy of a song onto a blank recording medium (where they take the levy from) for their own personal use. But it was not designed to grant those people who decide to make copies the right to give that copy to other people, or to allow it to propogate from there.

If what you claim were true, s. 80 would have no utility in practice, since for every legal act of copying a musical work there would be a corresponding illegal act on the part of the owner of the recording in which the work was embodied. For example I would not be able to loan you a CD for you to make a copy, since my actions would constitute an illegal act of facilitation. But this is exactly the activity that s. 80 was designed to allow!

Note that it does not matter whether the CD I loan you was one purchased at a store or a copy I made from someone else. Section 80 applies to "a musical work embodied in a sound recording", which describes both CDs.

You're talking about loaning a commercial CD with commerical songs on it. We're talking about sharing a copy of a commercial song (an MP3 via P2P).

That copy was made and protected under s. 80 while it was used only privately. When it is shared, it is no longer private, and it no longer falls under s. 80 protection.

It does not matter whether the CD is purchased or not, but it matters whether you made the copy or not. That copy is only allowed to be used privately by the person who made that copy. If it is given to someone else, shared, or whatever, that copy is now not protected, and suddenly the copier's infringement is not protected by s. 80 anymore.

s. 80 only applies if it _is_ a private copy. If you give it to someone else or let them make a copy, it is no longer a copy.

The Copyright Board has ruled previously on what is private and what is not, and making copies of copies so that other people can enjoy it is no longer a private copy.

s. 80(2) only tells you a list of when something is not private copying, but that doesn't mean that everything else -is- private copying. Clearly, if it's not for private use, s. 80 does not even apply.

Sorry, i should preface that the decision is about communication to the public via telecommunication, but has an extensive little section on private vs. public.

It's pretty much on point to how public vs. private use would be construed.

then your computer makes the copy by reading the information off of your hard drive and transmits it to him.

That is a pretty slim extrapolation of the word "copy" though. Thats like saying if I play a song really loud in my car I am sending a "copy" to everyone around me at the stoplight. I don't think it is unreasonable to say it isn't a copy until it is stored on a persisten, physican medium, which is to say the hard disk of the person receiving the transmission.

Moreover, the entire transaction would not be substantively different that my calling a friend asking him to play me a song over the phone and recording it as he plays it. I think saying that the person I called "made a copy" in that instance would be seen as laugable.

First of all, in my opinion, there is no differentiation between downloading and uploading. For every download, there is a concurrent and simultaneous upload. That is the important part about the KaZaA dilemma.

Your "lawn" analogy fails for two reasons. First of all, by putting the CD's out on your lawn, you have either distributed to the public or intended to do so, and that is copyright infringement. The Libraries and Educational Institutions are given the power to do this type of "lending", but you, the private user, are not. This is very clear in legislation. Second, you aren't dealing with "private" copying anymore. That is very much public copying. You're outside of your private sphere.

You are more than in negligence by allowing your MP3 files (Which are copies... remember, the original media is a CD or whatever. you copied it to your hard drive for personal use under s. 80) to be shared. Those MP3 files, and the process to create them, were protected by s. 80 as long as you used them for private use. YOu know, playing them at home, listening to them on your headphone, etc. The second you give them to a friend to listen to, burn a CD and give them to your mother, or share them on KaZaA, those MP3 files are now no longer protected under s. 80. Not only are you distributing (in my opinion), but the copy you made from the source is now illegal as well. So you're hit on two levels.

The third point I wanted to make is... let's assume you're right, and through negligence alone (and not infringement) you allowed a copy to be made. What's the practical difference? You're now in the tort realm, but you caused an infringement through negligence. Same diff, if you ask me. THough maybe the copyright holder might have to account for profit loss, etc. But maybe not. You may find yourself saved from criminal sanctions, but are you really any better off?

Cheers, Ryan Black

Well, in Canada downloading is neither unethical nor illegal. We pay a levy on all our blank media (and will likely soon pay a levy on storage media like hard drives, unfortunately), and in return we are allowed to copy and download music to our heart's content, as long as it is for our own personal and private use.

As for sharing... it is illegal because it is contrary to law, the Copyright Act. Ethical issues aside, it is illegal for someone to share files, distribute them, etc. Nobody is trying to relate unethical to illegal. The fact is, copyright infringement is illegal.

As to whether or not it's unethical, well, that would depend on who you ask.

Jay, you keep talking about the copy that is made when the P2P app transfers the file from one computer to another. Fine, let's assume that you're correct, and that this copy is made by the downloader and not the sharer.

What about the copy that was made when the MP3 file was originally placed on the sharer's hard disk? When he copied the song from the CD to the hard drive, or downloaded it from KaZaA, etc. That copy is no longer for the private use of the person making the copy ... it is now for the use of him and anyone who wants to download the file.

Purpose or intent isn't even an issue in that copy, and let's face it... that copy is indisputably the responsibility of the sharer.

So, let's assume that you're correct and that I'm the Crown and I can't prove that the second copy falls outside of s. 80(1) (which, I think, a Crown wouldn't really have any difficulty proving, as I've said to you and others many times before). I've still got that first copy to nail you with, and I'm not going to have to worry about purpose at all!

The "chunks of the song" argument, to me, is totally a non-starter. It doesn't matter whether the copy disappears when you turn your computer off or not, as long as the copy is made. It doesn't say anything in the act about the copy needing to be permanent.

Evidentiary-wise, it would be tough in Canada to prove that someone had an infringing copy in that *second* temporary copy (though I think this would succeed).

But not the first one. The first copy is a no-brainer. The fact that a file was being shared would speak to the fact that it was not there only for his private use. Intent and purpose are irrelevant.

The Private Copying provision absolutely does not bring file sharing into its ambit, and prosecution (assuming that they can translate "joeuser@kazzalite.com" to "Joe K. Smith") will be anything but impossible.

I see the persuasiveness of what you're trying to say, but s. 80(1) imports nothing about purpose or intent. It says "for the private use of the person who makes the copy."

While the intent originally may have been to download a song and listen to it or to use it for private use, when it becomes shared, it is no longer for the private use of the person who made the copy. This sharing may be a minor, inconsequential, or unintended use of the copy, but it is nonetheless now a use.

I see no reason to "fix" the nature of the download at the point that it is downloaded. s. 80(1) makes no mention of "purpose" (read: intent), whereas s. 80(2) does. S. 80(1), by the converse, would likely be seen to have no purpose requirement. Note that 80(2) does not say "a copy is not for private use if [any of the following things happen]," but instead it says "section 80(1) does not apply." So, purpose is ONLY imported by way of s. 80(2), and ONLY if you get past s. 80(1), in my opinion.

Now, if you somehow did find yourself into the realm of s. 80(2), I would think that the intent required under the s. 80(2) would be fixed at the time you do the copy.

Cheers, Ryan

2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c): (a) selling or renting out, or by way of trade exposing or offering for sale or rental; (b) distributing, whether or not for the purpose of trade; (c) communicating to the public by telecommunication; or (d) performing, or causing to be performed, in public.

This is going to be a lenghty post, but it is our hope (this is co-written by Shawn and Ryan) that this will ,at least, put a solidifying end to our discussion to this point. Please feel free to respond, but we hope that this makes our position very clear.

There are two copies to consider

It's important to remember that we must consider infringement as it applies to (A) the copy of the file on the sharer's hard drive, and (B) the copy uploaded to a third party. You've argued that the purpose test applies to the copy on the hard drive, but it cannot apply to the copy uploaded to a 3rd party. That copy has been publicly shared, has been trasmitted over telecommunication, and is not made for the private use of the individual who made the copy.

Issues surrounding copy A are secondary to determining whether a sharer is liable, but as far we're concerned, copy A also always becomes an infringing copy once it is used for anything but private use. We've been arguing for quite some time about copy A, but I just want to make clear that, even assuming you're correct about the intent of making that copy, the issue will not exonerate a file-sharer, because of the existence of copy B.

Statutory Construction of s. 80(1)

Let's talk about the place of the purpose test in s. 80(1). There are four main statutory interpretation principles which indicate that there can be no purpose test in s. 80(1).

(1)The first principle states that the meaning of a passage must be taken in context, or in relation to surrounding passages. Section s. 80(2) includes an express reference to "purpose": "[I]f the act... is done for the purpose of any of the following...". In contract, s. 80(1) lacks any such reference. Therefore, the court is obliged at assume that the absence of "purpose" contrasts with the inclusion of the term in 80(2). The required conclusion is that purpose should not be considered when applying s. 80(1).

(2) Statutory provision are to be construed by the plain meaning of the words. In this case, s. 80(1) states "... for the private use of the person who makes the copy." In conjunction with our analysis from above, this principle of construction obligates the court to consider the "use" of the copy, and not the purpose. The use of the copy will be indicated by evidence as to what was done with it following the making of the copy. Intention has no relevance to use, only to purpose.

(3) A third principle is to take purposive contruction, a principle especially applied in IP law in recent years. Section 80 was not designed to govern file-sharing, but rather to work in conjunction with levies on blank media. That means that the right is not connected to making copies over the internet, but making copies onto blank media. Thus, courts will be hesitant to expand the scope of the exemption.

(4) A very important principle in the construction of statutory exemptions is narrow interpretation. The copying of a file, or making of a music file from a CD, is, prima facie, an infringing act. Section 80 provides a limited exemption to infringment, but a court is obliged to make this exemption as narrow as possible within the meaning of the provision. This would apply to the general strict liability in copyright law, rebutting the idea that purpose should be a factor in this issue.

Just a reminder: s. 80(1) must be applicable to an act of copying before s. 80(2) is considered. Therefore, the purpose or intent with respect to distribution or telecommunication does not need to be considered when an act of copying is not private as required by s. 80(1).

Intent and Copy A

Copy A was made before sharing occurs. It is a copy on the hard drive of the sharer, which presumably was either downloaded or ripped from another source. Prior to infringing activity, it is protected under s. 80.

The actual use of this copy is all that matters under s. 80(1). The intent when it was made is irrelevant, given the necessary statutory construction.

Even assuming that you are correct about the intent when downloading, a new issue of use arises when this copy is used as the source for copy B, which is shared to a 3rd party. You have argued that intent is fixed at download, but this is only reasonably imparted under s. 80(2). A sharer may have not intended to acquire a music file in order to share it with the world. Such a lack of intent may avail him of the provision in s. 80(2). Nonetheless, the file itself is no longer for private use as strictly required by s. 80(1), a prerequisite to s. 80(2).

"Use" cannot be fixed at download, because the use of a copy can only happen subsequent to its creation.

Moreover, if we assume that intent is required even for "use" under s. 80(1) (which is really giving you a lot of leeway), then intent would necessarily not be fixed at the point of download, but with each use of the file. This is because use is a continuous, or recurring, activity.

Copy B is always an infringing copy to the sharer

What we have said above about copy A is in one respect entirely moot, because as we have shown repeatedly, copy B is clearly an infringing copy for the sharer. Therefore, whenever a file is uploaded by a sharer, they will be liable, regardless of copy A. (Note, however, that based on our analysis above, copy A will present an additional level of liability to the sharer.)

Copy B is either made by the sharer when it is copied (piecemeal or whole) into RAM for the purpose of sharing, and/or when it actually transmitted as packets to the 3rd party. The Copyright Board has explicitly ruled that such a non-contiguous transmission (transmission piece by piece) is to be considered one whole transfer or copy for the purpose of the Act.

This copy is undeniably made for the use of a third party, and not for the person who makes the copy, and therefore is not protected under s. 80.

The one issue we must address is who made the copy that is transmitted? The possibilities are that (1) the sharer made the copy, (2) both parties made the copy, or (3) the downloader made the copy. Possiblities 1 and 2 both give rise to liability by the sharer. We should state that we're not considering whether the file was downloaded by the 3rd party from multiple sources, because practically the sharer is part of a larger scheme to make infringing copies. The only question is who is legally responsible for the sharer's computer when it makes the copy.

the important facts are that the sharer decides whether or not a file can be shared from the p2p application. The sharer also decides to install and to run the p2p application. The sharer therefore knows that files are available to the public, or ought to have known. Note that for many users like us, and all involved in this discussion and who have read our articles, knowledge of sharing is a foregone conclusion.

A small sidenote about proving intent. In general, I wish to avoid evidentiary issues, because we're discussing liability and not procedure, but this is clearly a sticking point for you. If intent was as difficult to prove as you've suggested in your numerous examples of examinations and cross-examinations, respondents and criminally accused would literally almost never be found liable or guilty. Non-testimonial evidence would be substantial weight on a judge's mind - it would be the only objective material available to determine intent. Anyone sued or charged will refute their intent. Successful lawsuits and convictions involving intent happen every day. So without pouring to heavily into issues of proving intent, we would submit that the ability to claim "I didn't mean to" or the inability of the opposition to show intent is not a reliable basis for which to continue breaking the law. Now let's bring our discussion back to the law.

Possibilities 1 and 2 become true if the sharer has (1) all or (2) partial "care and control" over the actions of his computer. Possibility 3 is only the case if the sharer is considered to have no control over his computer when the file is copied and is transmitted.

The sharer is solely responsible for causing the sharing application to be installed and run; the sharer either ran the application each time it was launched, or agreed to have it run automatically. We are not talking about the ignorant user here, and nonetheless purpose is no longer an issue. At any rate, nobody reading this article has a defence of ignorance. In addition, each day the defence that the sharer didn't know how p2p works or that their application was sharing files becomes less and less credible. P2P apps have windows clearly showing uploads, status bars that describe traffic, often ask upon installation about configuration details relating to sharing, and so on. Media dissemination of the realities of file-sharing is also growing every day. At some point, ignorance will no longer be an issue. Everyone will be considered to know or ought to have known how their file-sharing software works.

When a specific request to download a file from the sharer is made by a 3rd party via a p2p application, it may be argued that, for a moment, they have control of the sharer's computer. Given that the sharer may be sitting at the computer, and generally has the ability to abort or end p2p sharing (in total, or at each individual attempt), it is somewhat specious to say that they do not have control. Nonetheless, even if we assume that the downloader has control for the purposes of the request, this control will be considered non-private. The Copyright Board has delineated the borders of privacy concerning telecommunicative acts, which is limited to the sharer's "domestic setting." Remote access of any degree to a sharer's computer is not private if it comes from outside the domestic setting. Therefore, the control that we are concerned with would be non-private control, and therefore the act of copying would be non-private copying, and not protected under s. 80(1). Note that, once again, s.80(2) and it's possible purpose requirement is not employed.

This non-private copying relates to the downloader and not the sharer, but the sharer has faciliated or allowed the control to take place (the sharer would have known or ought to have known). The sharer is liable along with the downloader for the infringement. Please note that this issue of remote control is of very limited consideration, because as explained above it is likely that for other reasons the sharer is always at least partially responsible and in control of his computer. Furthermore we are speaking only of copy B at this time, and as we've shown above, copy A is also an infringing copy, regardless of how copy B is construed.

Section 80(2) is not important

Our arguments have shown why s. 80(1) does not protect the file-sharer when engaging in file-sharing, on two different counts. Because this section does not apply to file-sharing, s. 80(2) is never employed in determining the liability of a file-sharer. Therefore we need not consider s. 80(2), nor do we need to consider any purpose requirement, which at best is only contained within s. 80(2).

Summary

As both of us have feared from the very publishing of the Tech Central Station article, many people have extracted from it the position that file-sharing is legal in Canada. I think all of us, yourself included, have since come to the conclusion that file-sharing is, in fact, not legal in Canada, and even by your own admissions, at best would be a difficult thing to prove. What we were hoping by the greplaw article was that it would provide a strong counter-point to the totally false conclusion of the TCS article. Instead, because the TCS article has remained unchanged to this point, we are still constantly fielding the issues and questions on this matter that should have been clearly resolved long ago after much conversation between ourselves and you.

We wish you would finally let go of the purpose argument, since you have backtracked on it quite a ways during our discussions, from saying in your TCS article that filesharing is legal, to saying it is legal without intent, to saying it would be difficult to _show_ intent.We engaged in a very lengthy refutal of your argument above, but let us say that this will be our last reply to you, Jay, unless you do something for us. You've certainly backed off a fair bit from the position you put forward in that article, so do us a favour and change the article. Fixing the damage it may be causing is costing all of us a lot of time and effort.

File-sharing is not legal in Canada. There are severe consequences for copyright infringement. People should govern their actions knowing that those two sentences are true.

Irrelevant, in my opinion. There are two copies being made. First, when I copy a song from its source to my hard drive in MP3 form. Second, when it is copied to a KaZaA user's hard drive via P2P sharing.

Let's assume that your question is answered in the affirmative, and that a "copy" isn't made until it's assemebled on the recipient's computer, and therefore legally a copy is only made by the recipient. I would like to state, first of all, that I think this argument is not very well-founded an would be found wanting on a proper analysis, but let's assume it to be true.

The problem is that first copy. You made a copy to your hard drive when you turned the song to an MP3, when you downloaded it from KaZaA, when you took it from its physical medium and placed it on your computer, or however you got the song onto your computer. That copy was protected by s. 80 for your private use. Once you share that copy, it is no longer a private use copy.

That first copy can't be saved by s. 80 for two main reasons, in my opinion. First, its new use (sharing on a filesharing network) brings it outside of s. 80. Second, even if it is still a private copy, its new purpose is in violation of s. 80(2) distribution over telecommunication, or a myriad of other infringing activites.

S. 80 will be interpreted strictly. Copyright infringement generally is a strict liability offence, requiring no intent. S. 80 imports some intent, but because it is such a specific restriction to a very general proposition, it will likely be interpreted very narrowly.

There is also a growing trend to interpret legislation purposively in the area of intellectual property. Clearly, s. 80 was never designed to protect people who wanted to share their files to millions of Internet users. I don't see how any judge would rule that s. 80 was designed to protect those people.

Just some random thoughts. Cheers, Ryan Black

If a Canadian (he) invites another (she) round to use his PC, I presume he can do that. If he lends his PC to her and she uses it to copy music, then that is presumably also legal. If she does effectively the same thing over the internet, why would this be illegal?

you are entirely responsible for what your computer does

OK, there seems to be a lot of confusion out here about what we're talking about when we say "copy."

When I buy a CD and make an MP3, I have made a copy. That copy is protected by s. 80 for my private use. When I download a song off of KaZaA, I have made a copy. That copy is protected by s. 80 for my private use. Unless I composed that song directly on my own computer (in which case there would be no copyright violation to be concerned about), the mere fact that it exists on my computer is evidence that a copy has been made.

The protection that s. 80 grants me exists only on my private use of that copy. It is not an infringement for my private use to have or use that copy. I can listen to it on my headphones, play it in my house, etc.

When I set up KaZaA to share that file, s. 80 no longer protects that copy. Sure, I can lend the original CD to my friend to copy. Because that thing, that original CD, is original, and doesn't need s. 80's protection. But could I lend a song I downloaded off of a filesharing network to a friend to copy? Clearly not. That copy was protected by s. 80 while I had it for my private use, but when I lend it to a friend, that copy is no longer protected by s. 80.

When I share via P2P, the copies of the songs that I have on my hard drive are no longer protected by s. 80.

I believe that further copies are made as well during the P2P process. My computer makes a second copy of the song for the P2P downloader's computer (by loading it into RAM and transmitting it), just as her computer makes a copy from the information sent by my computer (by assembling the transmitted information and saving it). I believe that the downloader's copy, as long as it is for private use, is perfectly legal: she fits the s. 80 definition, which doesn't talk at all about source.

However, I also believe that the copy that my computer made (into RAM and transmitted over telecommunications to her) does not fit within s. 80, and would constitute an infringement.

All in all, I appreciate that my "second copy" argument may not hold muster in a court of law. But regardless of that second copy, the first copy is unquestionably unprotected by s.80 if you are sharing it over a P2P network. Therefore, in my opinion, there is on question that filesharing is not protected in Canada under s. 80 of the Act.

First, there is no fair use doctrine in Canada.

Second, ownership is not an issue under s. 80. It doesn't matter who owns the song, anyone is allowed to make a copy of that song for their private use.

Third, nobody who uploads a song to someone else will be protected by fair use (I'm assuming you mean in America) unless, say, the recipient was a legitimate remote backup facility or something like that. Assuming you don't mean in America, then... um... uploaders are not protected by the non-existent doctrine of fair use, and are certainly not protected by s. 80.

however, your situation is quite unworkable becuase it would require someone to only share the pre-encoded purchased music in their CD drive at any given time, and let's face it, people aren't going to do that.

I also think that this would fail because it is my opinion that a second copy is made, in that your computer copies the file to the p2p downloader's computer. (Or, copies it to RAM and sends it as packets over the Internet). I believe that were a judge to look at the process of p2p, they would find that both the downloader and the uploader (the sharer and the p2p user) make a copy when a file is being downloaded.

1. Rip a CD. Mp3's on your computer for your personal use, copied to a blank CD, sony MD, Apple iPod, etc, etc. Good and legal.
2. P2P client picks up that copy and makes it available on the network. You have just made your copy(not the original, unless its a CDDA file) publically available for copying. Copyright s.80 subsection 2 applies here I believe. Right away you are a distributor. Go directly to court and pay your fine!

THIS IS NOT LEGAL ADVICE. Just needed to say that.

It is Rumor's and my opinion (As well as Jay Currie's, the author of the original article that started most of this controversy) that downloaders are not in any violation of copyright law if they download an MP3 for their own private use.

If you download it and don't share it, don't give it to friends, don't play it at your local club if you're a DJ, etc.etc.etc.... you should be fine.

And of course, we've been talking about legal issues, whereas ethical issues are a whole different ball game. To me, the fact that I'm paying a levy on every blank CD that is supposed to artists to compensate them for private copying absolves me of any ethical duty to support the artist. However, if I particularly like the artist, or I feel that the compensation scheme could in no way ever adequately compensate the artist, it would be up to my own moral choice to decide whether to actually support the artist or not.

My problem is... if I buy the CD, how much am I supporting the artist, and how much am I supporting a giant corporation? This is my problem with the levy, too... it is designed to compensate copyright holders, but I'm worried that the artists won't end up with much in the end.

Anyway, my two cents (after all this, it's much more than two cents!)

The issue isn't how many people are allowed to make a copy, it's the fact that the copy is being made by and for someone other than the person who would claim private use on the first copy.

The original song is a CD, or something played on the radio, or something stored on some computer somewhere on the Internet.

Copy #1 exists when you download a song from the Internet in MP3 format and place it on your hard drive. Or rip it from a CD. Or record it somehow onto a WAV file. Or whatever. That copy is protected by s. 80 as long as you use it only for personal use.

Copy #2 is created when that file is shared to someone else. The P2P application makes a copy for the use of the downloader. (It is my argument that the sharer's computer makes a copy for the downloader).

The problem is, the first copy was only protected if it is "for the private use of the person who made the copy," whereas this first copy now has a new use ... being shared to millions of internet users (even if one at a time). The sharer will find that, even if that second copy isn't pinned on him, that first copy will put him in copyright infringement land.

Then, of course, there's the s. 80(2) distribution over telecommunications to the public, etc.... a sharer might find themselves triple- or double-whammied by copyright infringement.

A very astute, clear position, and I am in total agreement with one minor caveat (there is no real right to profit in the copyright act, but there is a right to control and distribution, of which a company or artist may avail itself for the purposes of profit).

Here's how this argument has developed over time:

Jay Currie writes an article basically saying that P2P filesharing in all forms (sharing, downloading, etc) is legal in Canada.

My colleague and I are concerned that this will give Canadians a false sense of security regarding their legal position in RIAA-style lawsuits, because, respectfully, Mr. Currie is clearly wrong. We engage in private discussions with Mr. Currie, arguing our position, and having a very good legal debate.

Mr. Currie's article remains up, and slowly, people are beginning to post things to Slashdot and other rights-discussing sites saying "Hey, filesharing is legal in Canada, let's just move there and **** the RIAA."

We write this article (well, Rumor wrote it drawing heavily on my conversations with Mr. Currie) and express our opinion on the matter.

Mr. Currie's position evolves over time: first, filesharing is totally legal. Then, filesharing would be legal without the intent to share. Then, filesharing would be legal if you didn't know that P2P apps would share. Now, filesharing would be a difficult evidential burden. (Admittedly, I believe he's still sticking to at least the last two arguments) This evolution happens in private conversations between ourselves and Mr. Currie

Mr. Currie's article is posted to slashdot, unamended, and suddenly most of the technical world thinks that filesharing is legal in Canada.

We manage to publicize this rebuttal in enough places (and a Slashback mention) that, hopefully, we've done enough damage control so that people don't freely share with a sense of immunity.

People want to believe that filesharing, an activity that many engage in, is legal, or at least, not prosecutable. People would love that type of justification - hey, I pay for it already in my blank media levy, so why shouldn't I share? However, the levy nor the Act was designed with filesharing in mind, and it is my submission that no sharer would find any protection there.

In return for a small levy on all blank CDs, Canadians may now copy music for their private use. Note that they may not copy music for the private use of others (burning a CD for a friend, or sharing over the Internet). Instead, we are allowed to make our own copies. In my opinion, this includes activities like copying a borrowed CD, taping music off the radio, or downloading a song off of a P2P network. (Clarification: not legal nor any other type of advice, just my opinion)

However, when you do anything with that music other than enjoy it privately, you're suddenly outside the system. The levy system wasn't desinged to support sharing nor non-private copying.

So, that's the answer to the question. The copies are legal because of the levy. The sharing is not legal because it is not what the levy was designed to foster or compensate.

The levy probably isn't fair in your situation, though if you copy an $18 CD that you borrowed from a friend, you've got to use a lot of blank CD's to make up for the "savings." It's like any other tax - it supports an available system that people don't have to use, but have to pay for.