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File Sharing and Downloading in Canada
posted by mpawlo on Friday August 22, @04:53PM
from the blame-you-know-who dept.
Copyright Rumor writes "A lot of people seem to be saying that file-sharing is legal in Canada. Upon close interpretation of Canadian law, we think that downloading songs from the internet is legal, but sharing files or uploading files via p2p is strictly illegal. We don't want Canadians exposing themselves to lawsuit liability because of the wrong ideas, so please read our analysis."


"There have been some articles circulating lately on the web which proclaim that file-sharing is legal in Canada. In addition, in the last few days I've seen several references to the latter article in slashdot commentary. I and a fellow law student have become concerned with the effect these articles might have, because in our opinion file-sharing is certainly not legal in Canada, and constitutes infringement that could get you successfully sued. As much as we would love to be able to share music freely, we don't want other Canadians who use p2p apps to increase their exposure to lawsuits because they think they're immune to legal repercussions. When you use p2p apps, please do so knowing that you're still at some risk. We have been in detailed discussion with Jay Currie, author of the techstation article, and this is what we have concluded. And before I get into it, let me say that this is our opinion, but is not legal advice. We are not your lawyers. ;)

To begin with, it is, of course, infringement to make a copy of a copyrighted sound recording in any reproducible format. Data files like mp3s are considered sound recordings the same way that a track on a CD is.

Canada has a relatively unique provision in the Copyright Act, at s. 80, which provides:

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of
(a) a musical work embodied in a sound recording,
(b) a performer's performance of a musical work embodied in a sound recording, or(br> (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.


The key words here are "for the private use of the person who makes the copy". This means that you may make a copy of any sound recording and use it yourself. You may copy a friend's cd, or you may download music, and listen to it yourself. All of these activities are exempted from infringement.

In contrast, the following activites are not exempted by s. 80. You may not copy a cd or rip an mp3 and give it to anyone else. You may not send an mp3 to a friend over the net, because a copy is made in that process. You may not file share (or upload) over the internet without infringing. This last infringement is due to the nature of p2p file-sharing.

When a person requests a file over a p2p network, like Kazaa, the network sends out requests to the effect of, "Hey, Mr. X is looking for song Y, do you have a copy?" Your computer has results, and sends the information back through the network to Mr. X. Mr. X, seeing the result, decides to download it. He sends a request to your computer for the file. Here's what's key: he does not log onto your computer, make a copy of Song Y, and send it back. Your computer receives the request for Song Y, and then your computer makes the copy by reading the information off of your hard drive and transmits it to him. He now has a copy (which he downloaded, but most importantly, _you_ uploaded simultaneously), as do you.

Thus, whenever someone downloads from your computer, your computer makes a copy for their use. This is infringement with no exemption, because you are entirely responsible for what your computer does. Some have argued that, at least while you are away from your computer, you are not responsible for someone downloading from it. This would only be valid if (a) that person had complete control over your computer and (b) it was private control, rather than public (because only private copying avoids infringement). Complete control would mean physical control, usually, but also might mean full remote access. However, access to some of your files through an application that you, yourself, chose to execute would fall far short of relinquishing control of your computer, even if you turned on the p2p app and left the room. In addition, even if someone had full remote access of your computer, if that access was from outside your "domestic setting" (as the Copyright Board defines it) it would fall under "public" rather than "private" copying. Strangers over a p2p network fall outside your domestic setting. Therefore, when it comes to p2p applications, you are considered responsible for your computer's actions.

One important point of all this is that so long as you use a p2p application with sharing turned off, you cannot infringe copyright with that application. That's an imperfect solution, of course, because some of us need to share so that the system works. It's also worth noting that the RIAA has chosen only to sue "supernode" users in the US. If you are not a supernode, and if you share small amounts of material, you probably won't attract attention. It's the big sharers who are on the hook.

There are other reasons as well that file sharing is infringement, which I will canvas briefly: Offering your files on a p2p network is "public" rather than "private" copying, for two reasons. First, because sharing on a p2p network is allowing the public, in the common sense meaning of the word, to access your files. Second, because the Copyright Board has defined "to the public" as something intended to reach more than one person outside your domestic setting. Any public copying is of course not protected under the private copying provision in s. 80.

In short, when we share our files, we infringe copyright each time someone downloads from us on a p2p app, and we can't avail ourselves of the private copying provision in the Act. We are only safe in downloading. I hope that the Act is updated once again to give us some relief for sharing music through the medium of the internet (although full-on p2p file-sharing will probably always be considered infringment, it would be nice if at least ftp'ing music on a private scale would be legal).

We hope this article serves as a helpful and useful warning to fellow Canadians. Stand on Guard, Canucks. ;)

[Note: This was also submitted to slashdot, on the principle that we figured more readers there needed an analysis than readers of greplaw.]"


Pawlo's comment: Please be advised that this is an anonymous (more or less) reader submission and the legal analysis has not been reviewed by the Greplaw staff. If you need help understanding your rights, I advise that you consult an attorney who is versed in the field.

ES5 P2P Application | Time to give up on copyright law?  >

 

 
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    File Sharing and Downloading in Canada | Login/Create an Account | Top | 106 comments | Search Discussion
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    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Could this explain... (Score:0)
    by Anonymous Coward on Friday August 22, @05:58PM (#1061)
    ...why the RIAA chose to go after file sharers rather than track everyone who downloaded illegal MP3s from RIAA-owned music servers?
    Re:Could this explain... (Score:1)
    by alien on Thursday September 18, @12:27AM (#1235)
    User #868 Info
    Well of course. It has always been fairly clear to me, both from the language in Canadian Law, and from laypersons' interpretations, that "private copying" is fine. In other words, go ahead and download that mp3, but sharing it back out is infringement.

    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.

    Re:Could this explain... (Score:1)
    by RyanJBlack on Thursday September 18, @12:50AM (#1238)
    User #864 Info

    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.

    Didn't intend for it to be anonymous, really (Score:1)
    by Rumor on Friday August 22, @09:11PM (#1062)
    User #715 Info
    It was submitted by myself, Shawn Abel, and co-written by Ryan Black. We're 2nd and 3rd year law students at the U of A, respectively.
    Re:Didn't intend for it to be anonymous, really (Score:1)
    by thenexthour on Saturday August 23, @06:22PM (#1068)
    User #719 Info | http://grep.law.harvard.edu/
    Thanks for posting your work!
    This seems to mean that I can copy friends CDs... (Score:0)
    by Anonymous Coward on Tuesday September 09, @11:48AM (#1155)
    The quote you gave doesn't restrict WHAT you are copying for private use (beyong being music/audio). So, if you lend me a CD you own, that's legal (I hope it still is anyhow). Then, if I copy that entire CD for private use, I am exempted. Then I give you your CD back. Is that really legal? I thought it wasn't, and it sure seems like it should be illegal, its not the same as copying stuff I already own for private use. Sam
    Re:This seems to mean that I can copy friends CDs. (Score:1)
    by Rumor on Friday September 12, @09:52PM (#1166)
    User #715 Info
    I would absolutely expect that to be legal. Burning CD copies was the activity that the drafter had in mind when they put in s. 80 back in 1998 (I think it was '98...). As long as _you_ do the physical act of copying, and only you use the resulting copy, there should be no infringement.

    I agree that it _sounds_ like it shouldn't be legal, but understand that Private Copying is allowed because we pay a levy on all blank CDs we buy. The rationale behind s. 80 is that you've essentially already paid to copy the CD.
    Re:This seems to mean that I can copy friends CDs. (Score:0)
    by Anonymous Coward on Thursday September 18, @07:35AM (#1248)

    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?

    Re:This seems to mean that I can copy friends CDs. (Score:1)
    by RyanJBlack on Thursday September 18, @09:37AM (#1253)
    User #864 Info
    No. The second a copy is shared with someone else, it is no longer a Private Copy, and hence is not legal anymore. Locked or unlocked.
    Re:This seems to mean that I can copy friends CDs. (Score:0)
    by Anonymous Coward on Sunday September 21, @06:54PM (#1290)
    What about if the file is an original? Then apply the locking mechanism to it. Then the file is essentially a "virtual" CD. By original, I mean say a file you purchased from iTunes Music store or another electronic service.
    I think I can explain. (Score:1)
    by Axtech on Wednesday September 17, @07:05AM (#1183)
    User #861 Info
    Thus, whenever someone downwnloads from your computer, your computer makes a copy for their use. This is infringement with no exemption, because you are entirely responsible for what your computer does.
    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. A partial copy is on your (the downloaders) computer until the full file is downloaded. Therefore, I am not copying it to give to you, you are borrowing my resources to copy it yourself.
    In fact, you could not have designed a law which more perfectly captures the peer to peer process. "Private copying" is a term of art in the Act. In Canada, if I own a CD and you borrow it and make a copy of it that is legal private copying; however, if I make you a copy of that same CD and give it to you that would be infringement. Odd, but ideal for protecting file sharers. - Jay Currie at http://techcentralstation.com/081803C.html
    So, as this shows, that particular argument of yours does not apply. According to this, this is legal in Canada. Unless, of course, I've missed something. I should add that I am not a law student, but I am a Canadian who is watching this situation closely.
    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Wednesday September 17, @07:55AM (#1185)
    We have 2 people, Jack and Frank. They both have computers, and Frank wants a copy of one of Jacks files. In this case, it happens to be an mp3, and as such, falls under the Copyright act in Canada.

    Now, I *AM* a lawyer, and this is how it works..

    Jack and Frank have KaZaA (or some other P2P software installed) on his computer. Frank does a search, find the mp3 on Jack's machine, and downloads it. This is not illegal, and I this is why:.

    Nowhere does Jack *make the copy* and give it to Frank. Jack's computer isn't making the copy either. Frank has used Jack's resources to obtain a copy of the song. That is all. .

    To compare: If Frank brought his computer over to Jack's house, physically, and hooked it up on a LAN, and then connected to his shared Hard Drive to make the copy of the mp3, that is totally Frank's doing, and as such, it is legal. The fact that there is an intermittant step of the Internet in the first example is irrelavent. .

    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:13AM (#1187)
    Has this ever been testing in court, though? Unless you have clear precedent, you can't really say "this IS how it works definitely." I could see a lawyer arguing that the server *is* doing the copying in this case, and that the actions of the server computer are the responsibility of its owner. And I could see a judge being convinced that this is the proper interpretation of the law. Are you *really* a lawyer?
    Re:I think I can explain. Further. (Score:1)
    by RyanJBlack on Wednesday September 17, @01:28PM (#1205)
    User #864 Info

    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

    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Wednesday September 17, @07:12PM (#1215)
    <i> Jack's computer makes a copy and it is sent to Frank.</i>

    Well, actually, no there isn't "a copy" sent. Individual pieces are sent.

    A physical analogy would be if Jack stands at a photocopier with a book, Frank says "Can I have Page 1 Jack?", Jack photocopies page 1 and hands it to Frank, Frank says "Thank you Jack, may I have page 2 now?" and so forth until the book's done. So there is never another copy as such, but Frank ends up with a copy of all the data eventually.

    Not that I have a clue whether this technical correction actually affects the legal analysis in any way.
    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:01PM (#1217)
    A physical analogy would be if Jack stands at a photocopier with a book, Frank says "Can I have Page 1 Jack?", Jack photocopies page 1 and hands it to Frank, Frank says "Thank you Jack, may I have page 2 now?" and so forth until the book's done. Actually, a better analogy would be copying one or two words at a time. TCP/IP packets (what a p2p stream would end up as) are significantly smaller than the size of an MP3 - typically about 1/1000th of the total size of the file in MB. But I agree with the grandparent - as the computer that would be making the copy is the receiving computer, it wouldn't be illegal (at best, it would be a gray area.)
    Re:I think I can explain. Further. (Score:1)
    by RyanJBlack on Wednesday September 17, @08:13PM (#1219)
    User #864 Info

    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

    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Friday September 19, @09:54PM (#1283)
    There is nothing "gray" about it. It's as simple as this. You have a music file... someone else doesn't have the music file you have but can obtain it from you. You give them the file. There's no loophole, no work around, no looking at it any differently. Whether in pieces or if it was one *huge* packet you are still copying the file to his computer for his use and that is illegal. The mannerisms the network/computer go through to create the file and inevitably the sound through the speakers is irrelevant. The file is created and the source is a public distributor that had no rights given to him by the company to share this ownership of the sound file to others.
    Re:I think I can explain. Further. (Score:1)
    by RyanJBlack on Wednesday September 17, @08:07PM (#1218)
    User #864 Info

    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.

    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Thursday September 18, @02:11PM (#1257)
    Downloading something from anywhere, including p2p services causes the original host machine to to make the copy and send it. When you are viewing this webpage, the server where the information for this page is originally stored does not make a copy and then send it to your browser. And since everyone likes analogies so much, he's a much better one to explain what goes on when you download anything from anywhere, including p2p servers. First of all, whether it's sent all at once or bit by bit is completely irrelevant. So Jack has this page/book/document/etc. that Frank wants. This is how p2p works: Jack sets a piece of paper on the copy machine. Frank goes up and hits the "copy" button. Jack has not made a copy for Frank, Frank did it himself. What Jack did was make the paper available for him to copy. This is why the arguement is so convoluted. Technically, Jack didn't make any copies for anyone, but he did make the information available publicly for anyone to make a copy. As long as Jack leaves that piece of paper on the copy machine (turns on his computer and starts up Kazaa), not only can Frank make a copy for himself, but Jane, Steve, and Sally can walk up and make copies too. The point is Jack is making no copies for anyone. The question is: Does Jack making the information public constitute infringement?
    Re:I think I can explain. Further. (Score:1)
    by RyanJBlack on Thursday September 18, @02:44PM (#1260)
    User #864 Info

    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.

    Re:I think I can explain. Further. (Score:0)
    by Anonymous Coward on Thursday September 18, @01:58AM (#1244)
    RE: LAN analogy.

    If you consider a computer "private", the simple fact of just installing and running a p2p app doesn't make your computer public. You by installing the program, could be said to be giving permission to enter your "private" property.
    Also, consider that some p2p apps are encrypted or can use a VPN connection. VPN's require passwords & encryption settings (generally, unless they are set up incorrectly/stupidly), which makes the connection "private". But the person initiating the connection has the "keys" to the "private" network, and therefore has permission.
    I would consider this to be electronically equivalent to saying to a friend, "Sure come on over and make a copy from my original CD for your own private use." This is the point of the article in question, and is legal under the current copyright laws.
    Another case of law/government not keeping up with technology.
    Re:I think I can explain. Further. (Score:1)
    by Rumor on Thursday September 18, @02:19AM (#1245)
    User #715 Info
    The law defines "private" differently from you. Specifically, the Copyright Board has said that in terms of telecommunication (and in this case, they were talking about data transfer over the internet), private is restricted to communication within your "domestic setting." The degree of restriction you put on remote access is not relevant, unfortunately. I would _love_ for that to matter. Private FTPs would be governed very differently under the law if that were true. However, as the law is, even if only one person can access your computer, if they access it from outside your home, they are doing so in a public manner.

    Or, alternatively, without regard to domestic setting, if more than one person has access to your data, it is considered to be accessible by the "public."
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:10AM (#1186)
    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.
    Well.... if your definition of "making a copy" requires that there be "more than one copy on the computer at any time," then *neither* of the computers is making a copy in this case. And that doesn't seem right. I think the applicable definition of copying should be taking the original, and duplicating it. Whether you store that duplication or stream it to another computer shouldn't matter. In this case, the server computer *is* making a copy. The client is just recieving that copy as it's being made.
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:10AM (#1191)
    Isn't the act of copying the file a joint action, as both computers are required to acheive it? As such I would think that whoever started the transfer be it saying I want to Upload or I want to Download is the person who is copying the file. It could be argued that at one point you said YES I want to do this (upload) but the way p2p apps work now by default is to share all download files. I do not study law at all so have no idea if this would be neglagent or something
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:27AM (#1188)
    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.

    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:43AM (#1189)
    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. According to what I have been told by my law-studious friends, "copies" of information that reside in the random access memory of the computer are not regarded as copies in the legal sense. Only information which has been written to some form of backing storage is regarded as a copy; loading a program into RAM is a necessity of running it, and as such is treated as an extension of the "thing" which is stored on disc.
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:45AM (#1190)
    Yes, but this way lies madness, for it means that you can't play the CD either, because that would (as you mention) copy the CD into core. Then again, I was at the DeCSS inquest at Stanford, and I can safely say that the media companies would be ecstatic to be able to sell you things that you aren't allowed to use the way you want. This whole playing of media on non-proprietary devices is very troubling to them. -A Different Anonymous Coward
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:18AM (#1192)
    I like the RAM argument. There is another physical copy being made, and is thusly infringement. But that brings to mind more physical elements of computing. Think about this: If a company streams content to you, and wants it protected, they will disable everything from right-clicking to save as.. fuctionality. However, there is no way for your computer to simply listen on a port for data, and send it directly to an output device. Even if you were able to bypass disk caching, or RAM caching (which would both be copying) your systems still sends a stream to the sound card, at the very least. That's a second physical instance of the recording, so you just copied their stream. I guess now they can sue you. I think we're going to have to step outside the basic physical arguments at somepoint. I mean, what if I started arguing that the physical vibrations of the air in your room constitutes a copy of my work? Now you can't even LISTEN to the CDs I produce, can you? The intent of the law is to prohibit the collection of material that one does not own. If current interpretations allow you to GET someone's music, but now copy and provide your own, they need seriously overhaul. If anything, someone should be able to have a billion copies of anything they own, and put it anywhere. To whit; allowing users to see an MP3 of a recording that I own on my P2P is no different from my allowing my neighbours to hear me playing CDs. Technically, they can easily use a microphone to record my audio! Infringement laws do not discriminate based on quality of recording. Actually, maybe they should! If you can produce up to say.. 90khz records without infringement, it would still make CDs desirable. That would allow a great way to sample new bands, but still encourage purchasing of copyrighted material. What does everyone else think?
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @11:49AM (#1197)
    RAM isn't a physical copy. It's a logical copy. If this law only covers physical copies, then RAM and caching are NOT making physical copies.
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @05:39PM (#1212)
    I think you missed his point though about physical and logical copies..
    Re:I think I can explain. (Score:0)
    by Anonymous Coward on Wednesday September 17, @10:15PM (#1231)
    The situation is analogous to two casette tape machines hooked together through an analogue cable, one set to "play" and the other to "record". Clearly the "copy" is being made on the machine set to record. So long as the owner of the blank tape is the one to press record, his actions are legal. It shouldn't matter who presses play, since if there was no recording machine on the other end of the line no recording would be made.

    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.

    Re:I think I can explain. (Score:1)
    by RyanJBlack on Wednesday September 17, @10:26PM (#1232)
    User #864 Info

    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.

    Re:I think I can explain. (Score:1)
    by lazyx on Wednesday September 17, @11:06PM (#1233)
    User #867 Info
    My copy of the recording is not for public use. No one else is playing back my recording, nor am I performing my recording in public. I have no intention of making copies for distrubution or communication to the public.

    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.

    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @12:43AM (#1236)
    User #864 Info

    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.

    Re:I think I can explain. (Score:1)
    by lazyx on Thursday September 18, @08:28AM (#1249)
    User #867 Info
    The Copyright Act provides for limitations on the act of reproducing a work. It says nothing about facilitation of reproduction.

    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.

    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @09:39AM (#1254)
    User #864 Info

    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.

    Re:I think I can explain. (Score:1)
    by lazyx on Thursday September 18, @01:33PM (#1256)
    User #867 Info
    Subsection 2 of s. 80 outlines what I cannot do with my private copy. Allowing someone else to make a copy is not on the list. Therefore it must be allowed.
    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @02:37PM (#1258)
    User #864 Info

    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.

    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @02:39PM (#1259)
    User #864 Info
    "it is no longer a copy" should read "it is no longer a private copy protected by s. 80." Apologies for the quick reply.
    Re:I think I can explain. (Score:1)
    by lazyx on Thursday September 18, @02:59PM (#1261)
    User #867 Info
    Do you have a link or reference to this ruling? I'd like to read and understand it.
    Re:I think I can explain. (Score:1)
    by lazyx on Thursday September 18, @06:29PM (#1267)
    User #867 Info
    I have just been through the Copyright Board's website [cb-cda.gc.ca], and though they have an extensive list of decisions and regulations, I can find nothing that relates to the definition of private use. What am I missing?
    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @07:19PM (#1268)
    User #864 Info
    Sorry, Lazyx, i got sidetracked when I was trying to look for that link for you. Link is here [cb-cda.gc.ca] It's a PDF file. Cheers, Ryan
    Re:I think I can explain. (Score:1)
    by RyanJBlack on Thursday September 18, @07:39PM (#1269)
    User #864 Info

    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.

    A Small Correction (Score:0)
    by Anonymous Coward on Wednesday September 17, @07:52AM (#1184)
    The exemption only applies to musical audio recordings, not sound recordings in general.
    Re:A Small Correction (Score:1)
    by Rumor on Wednesday September 17, @05:29PM (#1211)
    User #715 Info
    Good point, and thank you for the correction. :)
    All Good points (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:26AM (#1193)
    Everyone here has their own points. The law is open to interpertation. As a Computer Technician, I would have to agree with it being legal because of the way the copy is made, however this public vs private copying thing may be where it screws it all up.

    That being said, until there is some sort of precedant set, specifically for p2p filesharing, Im not going to unshare any of my files, and I encourage others to do the same.
    Um. Not Quite.. (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:43AM (#1194)
    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.

    Re:Um. Not Quite.. (Score:0)
    by Anonymous Coward on Wednesday September 17, @11:25AM (#1195)
    That's the point I made above. It would be laughable to see that as copying, however, based on the definition, the way things are being interpreted - that's what's going on. The liability should not rest with the person who has copies of material they own. The person who has files shared, the person playing loud music, or the person with backups of their DVD collection. Rather, the individuals who are grabbing material that they have no right to possess (ie: they have compensated no owner of said material) are the real perpetrators. That interpretation allows for a community of sharers, but no downloaders. I think the recording industry would have to accept that, since their argument is based on revenue and right-of-possession. The argument on facilitating reproduction is what is flawed. -Dave
    Re:Um. Not Quite.. (Score:1)
    by Rumor on Wednesday September 17, @05:44PM (#1213)
    User #715 Info
    Actually, playing your music loud in public is not copying at all, because no new physical expression of the music has been made. It is, however, a public performance, and is technically infringement. It would absurd to pursue such an infringement, of course, but, reasonably, blasting your CD out to the public on the street is a public performance of a recorded work. The right to do that is strictly delineated under the Copyright Act.

    The Act wraps up rights to play or record music pretty tightly. In your phone example, for instance... it is hard to say if the person playing the song is making a copy. A copy is made, by you, and he is involved directly in making it... the Act is unclear whether he can aid you in making a copy of his work for your use. At any rate, the player of the music would be infringing for a different reason - he is transmitting a musical recording via telecommunication, which is strictly prohibited by the Act.

    The fact is, the law does take seriously the various copies of a work made by a computer during it's normal function. There are specific statutory exceptions, for instance, for the copy of software coded loaded into memory during the execution the program which that code runs. The fact that such an exception must be put in force means that the various copies made by a computer _can_ be considered infringement, in some circumstances.

    It is obvious to you and I and everyone else that the Private Copying provision was intended to govern CD-burning as that form of copying was just beginning to become popular, because the provision works in conjunction with the blank media tariff on CDs. It was not designed with file-sharing in mind, and it is a stretch of common sense to suggest that Private Copying should protect file sharers. We may want it to, but in terms of common sense that seems like a ridiculous and purely wrong outcome. Assuming that I'm right, and that a judge will percieve the Act in this way, said judge will try hard to find a way that s. 80 does not protect file-sharing. In addition, he is bound by law to interpret s. 80 in a narrow manner. All this means is that a judge _will_ take seriously the creation of copies within the computer that you are I might consider insignificant.
    Re:Um. Not Quite.. (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:14PM (#1225)
    If transmitting music via telecommunications is prohobited by the act, then it doesn't matter what semantics you put on copying the file via kazaa, it's going via telecommunications, so it's verbotten...

    my stance on the copying is that in order to copy something you must be in possession of it, you can't let the guy on the other end of the link posses your files... so you copy it, and send the copy to him... he then stores it.

    to go crazy w/ the analogies, think of it like jack has a book, and tom would like to read it, so he calls up jack and asks him to read it. now jack doesn't want to lend tom the book; so he transcribes it onto lined paper, and sends tom the pages as he finishes them. Tom then keeps the pages in order as he gets them, and when they're all done he reads the book. In this scenario, it's pretty obvious jack is doing the copying, and tom is just in posession of a copy at the end. Of course, if I was so inclined, I could probably come up with another analogy that works the other way, but i'll leave that as an exercise for the next AC
    Again people need to read the Act (Score:0)
    by Anonymous Coward on Wednesday September 17, @11:39AM (#1196)
    You can't upload via P2P at all - Section 2 mentions this. And any case, getting a song onto a computer always requires copying; thus you will always break the law if you put it on your computer with intent to share it with the public despite whether they take their own "copy of a copy".
    ---------

    (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.

    1997, c. 24, s. 50.
    The nature of connections (Score:1)
    by jtpalinmajere on Wednesday September 17, @12:18PM (#1198)
    User #863 Info
    The differentiation between uploads and downloads, technically, is based primarily upon the nature of the connection and not the flow of data. A connection is established using a source computer(A) and a destination computer(B). During this connection if A sends data to B it is an upload to BOTH systems. B is not downloading in this instance, but simply recieving an upload. Likewise, if B sends to A it is a download on BOTH systems. B is simply transmitting information (not uploading) to A's download stream. In fact ISP's, by way of case precedence, support this explanation in the differentiation between upload and download bandwitdh provided to a connection. To put this in layman's terms, if I want to upload information to another computer, I MUST initiate the connection. It is not classified as an upload if the destination computer initiates the connection, it is then a download. Lets apply this principle to a hypothetical non-computer related situation. If I set out my entire collection of CD's in my front lawn and put a cd burning device next to it, and then someone comes with a blank cd and makes a copy of one of my cd's, am I doing anything illegal? I did not "give" the copy to him... i simply did not prevent him from making and taking one. Now as long as that copy is used for personal audience, the person with the copy is also not in the wrong (according to Canada law). Applying this back to the scenario of using Kazaa and other p2p networks, I would simply be in negligence of protecting someone else's copyright by making those cd's available. If this is in fact illegal, then any time we do not perfectly secure data and information electronic or not, we are then at risk of violating copyright laws. Anyone that has ever dealt with security knows that there is no such thing as perfect security. Thus, anyone in possesion of anything with an applied copyright is violating copyright laws simply because they cannot perfectly secure that thing. You simply cannot pass on the blame of copyright infringement onto the negligent copyright caretaker (owner of the cd).
    From someone who knows what they're talking about (Score:0)
    by Anonymous Coward on Wednesday September 17, @01:15PM (#1200)
    To put this in layman's terms, if I want to upload information to another computer, I MUST initiate the connection
    You have no idea what you're talking about. The following is an impromtu lesson in TCP/IP.
    Firstly, children, when a TCP connection is established (and this says nothing of UDP), there is no polarity between the computers. Both computers are connected to eachother, period. When computer A wants to connect to computer B, computer B must be "listening". Computer A says "Hey, I wanna connect.". Computer B either doesn't reply (drop), says "No" (reject), or says "Okay, here you go." (accept). Once this process is complete, it's not possible to determine who established the connection from the resulting stream.
    Now, some computers are behind firewalls or routers. Boo. Let's say Computer A is behind a home router. That router isn't configured for p2p apps, so it doesn't let Computer B make a connection to Computer A for a transfer. However, Computer B has no such router or firewall. Computer B is connected directly to the internet. What happens if Computer A wants to download from Computer B? Computer B can't connect to Computer A. However, Computer A can connect to Computer B, since Computer A can use the router to make an outgoing connection. Why does this work? See above... there's no difference who starts the connection. Once the connection is established, the transfer can go in either direction.
    To clarify, an upload doesn't just send. It also must receive data from the remote computer. Depending on the p2p application you use (I prefer http://www.winmx.com/ ), it may establish multiple connections, or just one. But in all cases, the two computers will exchange data in both directions before and during the actual file transfer.
    Now, onto the argument at hand. Let's take a technical look at how a p2p app sends a file. Firstly, it typically reads a "buffer" of data from the file. This could be 4096 bytes, or it could be 4 megabytes. It depends. But right at that instant, the application has made some sort of copy of the data. This is then copied again to the TCP stack for sending down the pipe to the remote computer. At this moment, there are three copies, all on the same computer. The operating system reads from the stack and sends the data over the internet to the other computer. This is a fourth copy, which isn't resident on your computer. However, this data is usually fairly small, usually about 4-8 kilobytes. Given the encoding rate of most music, this isn't even half a second of sound.
    (Sidebar: Music is often encoded in Kbps. Kbps stands for kilobits per second. Bits are not bytes. To get the number of bytes per second, divide by 8. For example: an MP3 encoded at 128Kbps takes up 16KB [kilobytes] per second. The case of the "b" is important, folks.)
    Okay, so we're sending these little chunks of data from Computer B to Computer A. At no time does Computer B make a full copy of the file all at once, however Computer B does eventually copy every segment of the data onto the TCP stack, where they magically disappear. Again: Computer B has read every byte of the file, and made a copy of each one. Each of these copies probably couldn't be construed to be musical alone, however, when the file is reconstructed on the other side, there is no doubt that there is another copy of that recorded work.
    In the end, I'm not a lawyer. However, I am a programmer, and I know how these things work. I will let you draw your own conclusions, as obviously it comes down to your idea of a "copy", whether as a whole or part.
    Re:From someone who knows what they're talking abo (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:58PM (#1223)
    Obviously data goes both ways whether doing an upload or a download, but I would have to agree with the original poster. It comes down to semantics as opposed to the pragmatic explanation of the situation.

    Computer A may be sending data to Computer B, but it is only considered and "upload" if Computer A INITIATED the connection. If Computer B INITIATED the connection then it would have been a "download." I also agree that this is the criteria by which an ISP regulates an individual users bandwidth.

    I host an ftp site on my machine at home. When I am at school and downloading from my machine at home, I get to use the full potential of my download bandwidth at home. But wait, isnt data coming from my home machine to my machine at school? Yes, but it is not considered an upload because of where the connection ORIGINATED FROM. If I reverse the situation however, and I "upload" a file to my school computer from home, I am limited by the upload bandwidth my ISP restricts me to.

    Technically speaking there is no difference between the two, I am sending data from one computer to another. But semantically, it makes a difference which computer INITIATES the connection.

    Now pragmatic terms would deem that downloading is incoming traffic and uploading is outgoing traffic. Makes perfect sense. But that isn't going to be how filesharers' court cases are won.

    I also think the originator's point about negligence to secure data is very valid. Is it really the responsibility of the possessee (for lack of a better term) to guarantee that nobody else has access to the copyrighted material he has purchased (or copied)? I say no because as the originator said, there's no such thing as perfect security, thus there can never be any such guarantee. Especially in the digital realm, if someone desperately wants to acquire something, they can; no matter what defenses are up there is always a way around them.

    Personally I believe that canadian law on copyright infringement and personal use exclusion clause is utter crap. I DO believe that it is at least wrong, if not illegal, to download copyrighted material that you did not purchase the rights to. It is ultimately the criminal responsibility of the person downloading the file when it comes to infringment and not the "negligent" providers.

    Don't get me wrong though. I also believe it extremely unethical, even though not illegal, to make copyrighted material conveniently available to the public (ie. queryable p2p networks).
    Re:From someone who knows what they're talking abo (Score:0)
    by Anonymous Coward on Thursday September 18, @01:07AM (#1242)
    Technically speaking there is no difference between the two, I am sending data from one computer to another. But semantically, it makes a difference which computer INITIATES the connection.
    Wrong. ;) I have an upload limit of 43 kBps. I make a connection to a webserver. I download data at 350 kBps. Plain and simple, the data flow is what is important, not the connection origin. Everything else (including this interesting theory of yours) is coming from your expansive imagination.
    Re:From someone who knows what they're talking abo (Score:0)
    by Anonymous Coward on Thursday September 18, @01:25AM (#1243)
    (In continuation to my last post)
    Better example. There are two common methods of FTP transfer. Normal, and passive. Normal is where the FTP server makes a connection to you, and passive is where you make the connection to the server. (This refers only to the data channel, not the control channel) Try both methods sometime, both uploading and downloading. You will see that there is no difference in speed (between normal/passive). I will admit, I do not know what ISP you use, and how primitive they must be to rely on the Client/Server model for metering your bandwidth, but I really doubt this is the case.
    In any case, it doesn't matter what the function is called. Whether it is "uploading" or "downloading" or "square dancing"; the process I described is the process used to read a file and send it over a network. It's up to the government to decide whether to govern the individual packets, or the end result, which copies to restrict and which to allow (is the copy illegal when it's in memory? Is it illegal when it's on the stack?), and whether to be broad or narrow (to include, for example, UDP packets as well). It's not up to anyone here to determine the legality or the morality of the situation. Did you buy the CD? Then it's yours to listen to. If you have a differing opinion, run for office.
    Re:The nature of connections (Score:1)
    by RyanJBlack on Wednesday September 17, @01:18PM (#1201)
    User #864 Info

    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

    Re:The nature of connections (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:28PM (#1220)
    I agree that you may not be better off, but just because it is unethical or immoral does not make it illegal. Take cheating on your wife for example. It is grounds for a divorce case, but it isn't agains the law.
    Re:The nature of connections (Score:1)
    by RyanJBlack on Wednesday September 17, @08:40PM (#1221)
    User #864 Info
    Copyright infringement is not cheating on your wife, it is illegal, complete with punishment. I'm not saying I agree, i'm saying that if you trade or share, you should be aware of the legal consequences and be prepared to accept them. Otherwise you'll be protesting from a much worse position.
    Re:The nature of connections (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:07PM (#1224)
    I believe downloading is, without a doubt, illegal (US Resident here), but I believe the question is if the provider is doing something illegal. It is definitely unethical, but there wouldn't be so much excitement about the situation if we knew exactly that it was illegal or not.

    We can't argue that it is illegal simply because it is unethical. I don't thing the previous post meant to absolutely paralell the cheating situation, but to give a basis of why you can't use the argument that unethical equates to illegal.
    Re:The nature of connections (Score:1)
    by RyanJBlack on Thursday September 18, @12:54AM (#1239)
    User #864 Info

    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.

    You've discovered a loophole for drug dealers! (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:18PM (#1226)
    I see, so I could just lay the drugs around in some public area and let people take them and leave the money in another area for me.
    Swarming (Score:0)
    by Anonymous Coward on Wednesday September 17, @12:29PM (#1199)
    I was wondering what the interpretation of "a substantial part" of a recording is. For example, many of the p2p applications use "swarming" whereby a user downloading a song actually gets a little piece from several different users. Would enforcing swarming of small enough pieces be a legal enough way to do it?
    Re:Swarming (Score:0)
    by Anonymous Coward on Wednesday September 17, @01:26PM (#1204)
    As I understand it, these "partial" copies of recordings are intended for promotional purposes.

    The problem that your "swarming" idea may face is that a group of different people have an intention to circumvent the law, and I wonder if that could result in conspiracy charges.

    Of course, what it all boils down to (aside from knowing the difference between right and wrong, and making the "right" decision, which is what so many people around here seem keen on avoiding), is what the courts will inevitably have to decide on these matters.
    Re:Swarming (Score:0)
    by Anonymous Coward on Wednesday September 17, @03:11PM (#1209)
    Your absolutely right of course. Making the "right" decision is simply to share your music for the benefit of everyone in society, as it was intended. Copyright is an artificial monopoly over "property" that doesn't actually exist (if I "steal" your song, can you not still listen to your own copy?) The moral choice is clear - share your files.
    Re:Swarming (Score:0)
    by Anonymous Coward on Thursday September 18, @08:39AM (#1250)
    Oh yes, the "Moral" choice is to rip off the artists, then provide more people with the means to do it again.
    Re:Swarming (Score:0)
    by Anonymous Coward on Thursday September 18, @09:10AM (#1251)
    [...] rip off the artists, then provide more people with the means to do it again. I think the RIAA does a good enough job of that.
    Further explanation (Score:1)
    by Rumor on Wednesday September 17, @01:21PM (#1202)
    User #715 Info
    I have two main responses to the arguments taking place, for your consideration.

    Let me start by saying I think our analysis is still sound.

    (1) Concerning the argument that I, as a file-sharer, would not be liable for infringment by sharing music files, because the downloader uses my computer as his own resource to make the copy. This is a really great argument, and sound, but has not held up in the courts. Since the 1980's, FTP sites have been on the hook for allowing remote downloading from their servers, and the "care and control" argument has been expressly refuted by the courts. There's a long line of precedence for this. When you open your server, or computer, up to the outside such that they can download from you, you're responsible for the sharing.

    The only possible exception that Ryan and I can perceive is if the remote user (a) had full remote access, (b) and caused the file to be shared. Only with full access could they be said to be in "care and control" of your computer.

    (2) Regardless of the previous concern, a very important detail is that the Private Copying provision applies only to private copying. Keep in mind that judges are, in general, intelligent and reasonable. Private has been defined by the Copyright Board as within your domestic setting. When copies are made and distributed outside your domestic setting, such as is the case with a p2p app functioning over the net, the Private Copying clause does not apply.

    Note that intent does not matter here. It does not matter whether you understood how sharing works, or meant to do it. If the copying is found to be public, then s. 80 does not apply. Outside of s. 80, copyright infringement is a strict liability offense, and no intent is necessary. (Within s. 80, I also think it is a strict liability offense, but there have been arguments otherwise.)

    (c) Keep in mind that s.80 is a statutory exception to infringement in general. Courts are required to construe statutory exceptions narrowly. Stretching the rules, or trying to squeeze through an exception is a risky proposition.

    Assuming our analysis is right, there is a further, dire consequence for file-sharers. Any download of a music file that you perform, or any copy from a CD in your possession into digital form onto your hard drive, is a protected copy under s. 80. But it is protected only so long as that copy is only for private use. Once that file is copied again in a manner that is not protected, such as by uploading it to a third party, the music file sitting on your hard drive is no longer protected either. It is not protected, and is an infringing copy, because it was not made solely for private use. Note that this reality may effectively double your civil liability.

    You must take note that copies of musical sound recordings that you possess have two exclusive natures. Sounds recordings that you purchased are yours to do with as you wish, including resale and lending. But on a narrow interpretation of s. 80, any copy you make for yourself can never be resold , nor can it even be lent to a person outside your home. The moment you do so, that copy is no longer solely for your private use, and becomes an infringing copy.
    Intent does indeed matter (Score:1)
    by JayCurrie on Wednesday September 17, @02:40PM (#1208)
    User #865 Info
    s.80(2) is pretty specific about the fact that what would normally be private copying will not be private copying in the event that a copy is made for the purpose of distribution or distribution to the public by way of telecommunication. Purpose implies intent and those reasonable ladies and gentlemen who grace our Bench are unlikely to give Crown or Plaintiff the benefit of the doubt as to evidence of intent.

    Nor should they as the exemption contained in s. 80(1) is constrained by s.80(2) to prevent what one might loosely describe as commercial or quasi-commercial copying.

    For example, were I to run an FTP site where you paid a subscription and were allowed to download my record collection there is no doubt this would be a commercial operation and would be well outside the private copying exemption. However, where a downloader's primary purpose in downloading, their intent as it were, is the private enjoyment of the copy they are making and as they are downloading they have no intention of downloading for the purpose of distribution or distribution to the public by telecommunication, it is unlikely that a Court would impute such an intent. Particularily if the defence lead evidence expressly denying those two purposes.

    I would argue that the critical question, at law and in evidence, will be what the initial intent of the downloader was when they initiated the download. If, as would be the common case, it was "I really want to listen to "Hotel California". Ah, there it is, now I can download it." this falls squarely within the bounds of s. 80 (1). On the other hand, if someone saw a song and downloaded it on the basis of "Cool, a lot of people are looking for that song, I'll post it." then they are potentially afoul of s. 80(2)(b) and (c). But how this forbidden intent could be proven in Court with respect to a casual user is a mystery.

    Imagine for a moment the case of the public housing 12 year old honour student who really liked Brittany and old television themes being tried in Canada. From the remarks reported in the press she had no intent to distribute when she downloaded. I can't imagine a Canadian Court imputing such an intent and without it she would remain secure under the cover of s.80(1).

    Of course, all of this is speculative as it has not been before the Courts. And given the PR disaster which the RIAA has let loose, I suspect the CRIA will be hesitant to try its luck.
    Re:Intent does indeed matter (Score:1)
    by Rumor on Wednesday September 17, @05:27PM (#1210)
    User #715 Info
    I agree that your argument might have some weight when, as you say, we are discussing the purposes of downloading. But what we are discussing here is sharing and uploading. We have already determined that downloading is legal.

    In addition, I would direct your attention to s. 80(1) which states: "the act of reproducing [a musical sound recording] for the private use of the person who makes the copy does not constitute an infringement..."

    Your intent argument is based upon the word "purpose" in s. 80(2), but no such word is utilized in s. 80(1), which precedes s. 80(2) coming into play. Only if a copy is protected under s. 80(1) do we consider whether s. 80(2) applies. Since any copy later distributed to the any third party is not a copy "for the private use of the person who makes the copy" it is not protected by s. 80(1), and therefore the purpose/intent argument from the following section 80(2) has no relevance.

    Re:Intent does indeed matter (Score:1)
    by JayCurrie on Thursday September 18, @02:50AM (#1246)
    User #865 Info
    To take 80(1) on its face, "the act of reproducing" is silent on the question of who is reproducing, however, from the piece of the statute you are citing it appears that so long as the reproduction is for the private use of the person who makes the copy there is no infringement. As other threads indicate, it is a very technical and by no means clear question as to who is actually making the copy. In fact, with some P2P systems, I may be getting portions of the songs I am downloading from several computers in half second bursts. (It would be cute to cite the four bar rule for infringement...but the poor Judge will already be pretty confused.)

    To even make the case, the plaintiff or Crown will have to prove that the "reproduction" in issue was not made for the private use of the person making the copy in order to aledge that the copy falls outside 80(1). How would you go about doing that?

    In fact, if I read the tech guys comments right, the copy in issue will not even exist at the point where the allegation of a violation of 80(1) arises. Rather chunks of the song on my hard drive will have been uploaded to RAM converted into packets and sent on their way at the request of the downloading computer. So the alledgedly infringing copy will disappear the instant I turn my machine off.

    From a strictly evidentiary perspective proving that I have, or have had, an infringing copy on my machine will be damned tough. It will be even tougher in light of the fact that it is open to the defendent to testify that the only material on his computer - that is the material on his hard drive - is there for his personal listening enjoyment. Which, techinically, is likely to be true unless someone is downloading at that very second.

    Conceptually the Private Copying right probably does not bring file sharing by way of the internet into its ambit; however, as a practical matter, the way the statute is drafted and the actual technical details of how files are shared will likely mean that prosecution of any but commercial sharers will be impossible. Tough nuggies CRIA...but you do get a quarter a CD.
    Re:Intent does indeed matter (Score:1)
    by RyanJBlack on Thursday September 18, @09:34AM (#1252)
    User #864 Info

    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.

    Re:Intent does indeed matter (Score:1)
    by JayCurrie on Thursday September 18, @03:58PM (#1263)
    User #865 Info
    Ryan, what I am arguing is that the nature of the downloaded copy is fixed at the point that it is downloaded. If you are downloading for private purposes the copy falls under the s.80(1)exemption. If you are downloading it with the intention of distributing it then it doesn't.

    Does leaving that copy in your shared folder change its status? Well now you are in the 80(2) intent swamp. I don't think it does unless you have the express intent to distribute and I don't think that intent will be easy to prove.

    Which is not to say that your arguments have been in vain - I was just interviewed for CITY-TV in Vancouver and while I said that downloading for private purposes appears to be legal, uploading is more problematic. And I also said that if you want to be really safe you would turn sharing off - thereby wiping out yet another few thousand "naive" sharers. But I am still of the view - off air - that where the intial download was for private use, as a practical matter it would be next to impossible to prosecute casual or incidental sharing.
    Re:Intent does indeed matter (Score:1)
    by RyanJBlack on Thursday September 18, @04:40PM (#1264)
    User #864 Info

    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

    Re:Intent does indeed matter (Score:1)
    by RyanJBlack on Thursday September 18, @04:46PM (#1265)
    User #864 Info
    sorry, Caps weren't meant to yell... forgot I was in HTML-land and could bold or italicize text.
    Re:Intent does indeed matter (Score:1)
    by Rumor on Thursday September 18, @04:57PM (#1266)
    User #715 Info
    I'll add a point about purpose. Assuming that Jay is correct (which I don't agree, but anyhow...), purpose is a non-starter for most of us. We are all aware of the nature of p2p and so is everyone who has read our discusssions. More and more people become aware each day of how p2p works, thanks to media coverage of the issues. Fewer and fewer people will be able to rely upon a defense based in intent.

    The default test for intent is "known or ought to have known." It seems extremely unlikely to me that a test for intent will be relegated only to the "known" region, given that if s. 80(2) is employed, it is still a statutory exception and thus will be construed narrowly.

    So, a purpose is unlikely to save very few people at all. Most people using p2p apps should known, or ought to know, how the software functions.

    And I agree with Ryan that a purpose is, at best, only imparted through s. 80(2), and that s. 80(2) only applies if s. 80(1) is found to protect the act of copying. I personally think it would be an absurd result for a court to suggest that a complainant must prove the intent of the copier at the time of download. Such a thing would be rather impossible to prove without referring to subsequent actions of the copier. Courts cannot read minds, and therefore will not try to, and courts have always been sensitive to the pragmatic reality of evidentiary issues. What a copier does with his file after he rips or downloads it will be evidence to his intent when he copied. It will probably be the _only_ real evidence to that intent. It would be an absurd result to suggest that intent can only be determined at the time of downloading/ripping/copying.
    Re:Intent does indeed matter (Score:1)
    by JayCurrie on Friday September 19, @02:13PM (#1279)
    User #865 Info
    Absurd it may be, but the very nature of the exemption granted in 80(1)and constrained by 80(2) requires that purpose/intent be accertained at the time of downloading.

    How else can an otherwise infringing act be found to fall within the exemption granted. If I am downloading for redistribution then I cannot claim the private copying right. So purpose does matter for 80(1) protection.

    You are absolutely right that Courts cannot read minds - what they want is evidence and a statement under oath is evidence. Now a plaintiff might argue that subsequent behaviour contradicts the defendant's statement as to intent; but that evidence would have to be overwhelming in a criminal prosecutions and very clear indeed to tip the balance of probabilities in a civil action.

    The Crown or plaintiff would have a horrible time with people who were unaware they were sharing files; but people who knew but testified this was not their purpose in downloading a given file would have a plausible defence. Moreover, if they had a pattern of use where the only time they were sharing files was when they were actively engaged in finding new music - which is a pretty common pattern - then then this might well count as evidence that they had no intention to distribute. In particular, the fact that many people, once they have got the music they want, close their P2P programs without a second thought as to whether or not people downloading from their computer are done or not, would tend to support the claim that there was no intention to distribute.

    The key thing to remember here is that the downloader's testimony at trial is no less "real" evidence than any number of inferences drawn from observing that downloader's behaviour (or rather his computer's behaviour). While many a trial lawyer has tried to prove that a witness is lying based on seemingly objective evidence, most will concede it is a damned difficult thing to do. This is not absurd - it is the basis of the notion of the burden of proof in both criminal and civil matters.

    The principles of construction to be used in dealing with s.80 are open to a good deal of wrangling. First, the Copyright Act as a whole is hard to construe because it is both a penal and a civil statue so, depending upon the nature of the action brought against a file sharer, the rules of construction may differ. That said, 80(2) will likely be construed narrowly which would mean that only those actions which clearly were in breach of s.80(2) would be seen as voiding the exemption granted by 80(1). Moreover, prior to construing 80(2)(b) or (c) a Court would have to deal with the argument that the overall intent of s.80(2) can be gleaned from reading the entire subsection and that this intent is to prevent individuals engaged in commercial activities from taking shelter under the private copying provision.

    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.
    (a) and most of (b) are clearly intended to deal with commercial situations, (c) and (d) are to prevent public performance or general transmission. Unless a file sharer's activity can be comfortably slipped into one of these categories, I would argue that so long as his original intent was private enjoyment, his subsequent activities will not alter the protected status of his copy. It would do no damage to the language of (b), which is in my view the most likely category for a file sharer to accidentally arrive in, to suggest that the "distributing" refered to would have to be on a scale similar to the scale a commercial sharing operation would be engaged in. (In other words, setting up a server full of songs and saying "come and get it" without actually charging for them would count as distribution, having a shared folder with a few hundred songs which was open once in a while, wouldn't.)

    Re:Intent does indeed matter (Score:1)
    by Rumor on Friday September 19, @04:42PM (#1282)
    User #715 Info

    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.

    Re:Further explanation (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:36PM (#1229)
    This is a really great argument, and sound, but has not held up in the courts. Since the 1980's, FTP sites have been on the hook for allowing remote downloading from their servers, and the "care and control" argument has been expressly refuted by the courts.

    I don't think that the argument is analogous at all.

    The rulings about FTP sites were about software, not music, and any copying of software (with the exception of fair dealing) is expressly forbidden - so attempting to use this as an argument is disingenious.

    When you open your server, or computer, up to the outside such that they can download from you, you're responsible for the sharing.

    Yes, and when you allow a friend to come over, and help him/her to make a copy, you're also responsible. It's not a question of who's responsible, it's a question of who's actually doing the copying. My understanding of computers (over 20 years) says that in every case, it's the downloader, not the uploader.
    Re:Further explanation (Score:1)
    by Rumor on Wednesday September 17, @10:11PM (#1230)
    User #715 Info
    The particular part of the FTP site rulings that I'm referring to is when the courts considered care and control of the FTP servers. Server operators argued that because they were taking no action themselves in the downloading - that the downloaders were the ones accessing the server, which was otherwise inert - they were not directly infringing.

    This argument probably wouldn't have saved them from contributory infringement, but nonetheless, courts have refuted this argument. The case law is pretty clear - when you allow your server to be accessed remotely for file downloads, you are yourself considered to be in control of your server.

    And just to be clear, there is no difference between software and musical copyrights, so it shouldn't matter that the FTP cases involved software.
    Who makes the copy? (Score:0)
    by Anonymous Coward on Wednesday September 17, @01:23PM (#1203)
    The word 'copy', in this context, isn't sufficiently defined. I mean, two files never exist simultaneously on the computer sharing the files; it never makes a complete copy. It just pipes data to another computer, which assembles a file. So the first time a proper 'copy' exists is on the hard drive of the person receiving the file. Could it not be argued that it's the recipient, then, that's making the copy?
    Re:Who makes the copy? (Score:1)
    by RyanJBlack on Wednesday September 17, @01:36PM (#1206)
    User #864 Info

    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

    Re:Who makes the copy? (Score:0)
    by Anonymous Coward on Thursday September 18, @03:50AM (#1247)
    A similar point, and certainly fitting the subject line:

    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
    Does it say this anywhere in law? If someone borrows my PC and commits a crime with it, am I responsible for their crime?
    Please remember: there is more than one copy! (Score:1)
    by RyanJBlack on Wednesday September 17, @01:44PM (#1207)
    User #864 Info

    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.

    Re:Please remember: there is more than one copy! (Score:0)
    by Anonymous Coward on Wednesday September 17, @06:09PM (#1214)
    Down With The RIAA! Th RIAA's actions belong in the same dustbin of history where McCarthyism is burried. It's just plain unconstitutional.
    Re:Please remember: there is more than one copy! (Score:0)
    by Anonymous Coward on Wednesday September 17, @08:55PM (#1222)
    Note that when your computer TRANSMITs the file(s), it is DISTRIBUTING.

    This is not legal according to Canadian law.
    http://www.cb-cda.gc.ca/info/act-e.html#rid-33770
    Re:Please remember: there is more than one copy! (Score:1)
    by RyanJBlack on Thursday September 18, @01:01AM (#1241)
    User #864 Info
    Well, if you even got to s. 80(2), then yes, s. 80(2) distribution would be a big hurdle. I would argue you wouldn't even get that far. A copy of a song that is shared freely is not for the private use of the copier, it's got a broader purpose. So you don't even fall into s. 80 to begin with. Hence, you're just a regular old copyright infringer.
    Stop at the fourth sentence (Score:0)
    by Anonymous Coward on Wednesday September 17, @09:21PM (#1227)
    You've made a critical conflation of logic. s.80 protects copies for fair use BY THE OWNER OF THE SONG. If you did not buy the CD, you can't download a song off of Kazaa and consider it protected under fair use. It may well be the case that the person who uploaded to you is protected by fair use.
    Re:Stop at the fourth sentence (Score:1)
    by Rumor on Wednesday September 17, @09:28PM (#1228)
    User #715 Info
    Section 80 has no mention of ownership of copyright. It's clearly intended to be used by people who don't own the copyright, but who merely own a copy of the song (be it in CD format or what have you).

    Moreover, there is no fair use doctrine in Canada. You're thinking of the USA. Canadian case law has expressly denied fair use. We have _fair dealing,_ which is similar, but to a much lesser degree.
    Re:Stop at the fourth sentence (Score:1)
    by RyanJBlack on Thursday September 18, @12:58AM (#1240)
    User #864 Info

    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.

    Re:Please remember: there is more than one copy! (Score:1)
    by JackSpratts on Wednesday September 17, @11:15PM (#1234)
    User #866 Info
    when the day arrives (and it is fast approaching) that cds come pre-encoded, that along with the songs in the normal wav format they arrive pre-compressed to make ripping to a computer or portable player that much easier (and presumably that much more controllable by the record companies compared to "out of control" mp3's), the prohibition begins to waver. these included files are not copies but rather a functioning part of the original first sale cd. if the owner places a cd with such files in the cd tray and selects that drive for sharing - then anyone downloading said files will be making the "first copy" and not a copy of a copy. this is hardly hypothetical btw. you can do it now by placing a cd in your computer tray and allowing a downloader access to that drive and the original, un-copied disc. normally it isnít done, it's impractical, itís difficult to do, itís 5-10 times the size of an mp3 or ogg file and takes that much more time to transfer, but it seems to me this would be a perfect way to legally upload in canada. get yourself several 200 cd jukeboxes and load and offer your un-copied collections and youíre off to the races. practicalities aside, this appears to be the detour around that particular legal roadblock. - js. [p2p-zone.com]
    Re:Please remember: there is more than one copy! (Score:1)
    by RyanJBlack on Thursday September 18, @12:47AM (#1237)
    User #864 Info
    a very interesting differentiation in your situation, JS. Also, imagine what would happen if you downloaded a song from iTunes or a legitimate file service and you paid for that song. I haven't read the licensing agreements for these services, but it could very well be that the "first copy" problem would be prevented by using this pre-encoded file.

    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.

    Re:Please remember: there is more than one copy! (Score:0)
    by Anonymous Coward on Thursday September 18, @10:54PM (#1270)
    I agree fully that just about anything on a P2P network (under s. 80), is illegal, unless you are the artist themself of the file in question. Ignoring the fact that the computer copies from the HD to RAM is a copy, I doubt courts would even consider that another copy, since RAM is part of the copying device as a whole.

    Here is how I see things:
    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!
    My question is, as a downloader am I in violation of anything? s.80 seems to cover distribution only.

    I personally believe that s.80 should be amended to included that making a copy of a copy for private useONLY should be legal. This would still not make sharing music files via P2P networks any more legal (considering the uploading factor).
    Finally, I also believe that if you like the music you should support the artist.

    --
    Gurjeet Clair, Canadian and Mp3 fan.
    Re:Please remember: there is more than one copy! (Score:1)
    by RyanJBlack on Friday September 19, @11:33AM (#1277)
    User #864 Info

    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!)

    Only Allowing One upload at a time. (Score:0)
    by Anonymous Coward on Friday September 19, @08:20AM (#1274)
    So if I only allow one upload at a time on my kaaza setup then only one person at a time will be allowd to "make a copy" at a time.... right?
    Re:Only Allowing One upload at a time. (Score:1)
    by RyanJBlack on Friday September 19, @11:38AM (#1278)
    User #864 Info

    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.

    Transmission (Score:0)
    by Anonymous Coward on Friday September 19, @02:30PM (#1280)
    I think that if we cut through all the technological crap that obscures the issue, we can see the very simple argument: Consumer buys rights to enjoy a piece of copyrighted material. Owner profits. Consumer gives away free copies by any means. Owner does not profit. Owner has right to profit as owner, hence laws must be made to protect infringement on that RIGHT. (Not so much to protect the property itself). Now, arguing about all the ways the information is handled is moot. Does my 5 speaker system present multiple instances? No. But the mixed tapes I made for friends do. Hmm. Making a physical copy and giving it away is clearly defined and protected, but not p2p sharing or FTPing, exactly. But the essence of these is closer to the phone arugment posted above than to the mixed tape example. Why not just use the transmission law to regulate anything that isn't a physical reproduction? In a p2p situation, my sharing computer does not reach out its reader-arm and write to another user's disk. It transmits it to another computer over a network. A network that is carried on telephone lines for the most part. If that is inarguably illegal, than what are we arguing about? That eliminates the ease of broad dissemination, and that is what the RIAA is worried about; that's what eats up profits, that's what infringes on rights. No one was concerned when people made mixed tapes, and landing back in those days wouldn't be so bad - mixed CDs are crystal clear. Even if technically illegal, they aren't worth prosecuting. -Dave
    Re:Transmission (Score:1)
    by RyanJBlack on Friday September 19, @03:00PM (#1281)
    User #864 Info

    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.

    Re:Transmission (Score:0)
    by Anonymous Coward on Sunday September 21, @12:52AM (#1287)
    The question of the levy makes me wonder if there is a contradiction here somewhere. What is the levy for? Is it a donation out of the goodness of our hearts (in which case I'm going to opt out!), or is it intended to compensate artists for the profits they have failed to receive due to 'private copies' being made? If these copies are legal, why should we be paying the levy? If the levy is legal, why shouldn't we be allowed to share music? As soon as the music hits the store shelves, the artist has lost the ability to control the distribution (but may still be able to control the profit). So I don't buy the 'control' argument. 9 out of 10 CD's I burn contain my own 'stuff', be it backup data, photos from my digital camera etc. The levy doesn't seem to be applied fairly in my case at least. As is often the case these days, the technology has left the law in the dust. Catching up isn't a simple thing - changes occur on a daily basis!
    Re:Transmission (Score:1)
    by RyanJBlack on Sunday September 21, @01:45AM (#1288)
    User #864 Info
    The levy was designed to compensate artists (and rightsholders) for the private copying of individuals.

    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.

    Re:Transmission (Score:1)
    by JayCurrie on Tuesday September 23, @02:54AM (#1298)
    User #865 Info
    Ryan, I have a longer post to respond to the points you made in your longer post above.

    However, I would be a tiny bit more circumspect about you characterize informal statements made in private correspondence. Arguing in the alternative and floating trial balloons are useful and fun; they are not to be taken that seriously.

    My own reading of the Act has not evolved nearly as far as you assume it has; rather, your comments have sent me back to look at the Private Copying right and what, in fact, was traded for the levy on tapes and CDs.

    In my view - subject to the usual more research needed - the following is true:

    1) The Copyright Board's decision is not binding authority on any Court likely to hear a case going to infringement pursuant to s. 80(1)and (2)
    2) It is impossible to parse s.80(1) in isolation. Private copying is undefined without s. 80(2). (Hat tip Lazyx although I had arrived at that position prior to reading his comments.)
    3)s.80(1) private use includes all uses a private individual can make of a copy which are not expressly barred by s.80(2).
    4)The relevant prohibitions in s.80(2) are almost entirely directed against commercial use.
    5) So long as an individual downloader does not download with the purpose of making a s.80(2) prohibited use or any commercial us, his or her incidental or inadvertent sharing can be characterized as an exempt private use.

    The various contortions supposedly required by s. 80(1) are the product of an over technical interpretation of private use: the express intent of s. 80 is to give a broad right of private copying in exchange for a broad levy on blank media and to prevent that right from being abused for commercial purposes.

    It is no accident there are no statutory exemptions for CDR's used only for data backup and tapes used for dictation: the music industry wanted to get as much money from the levy as possible in an administratively simple way. So it makes perfect sense to interpret the private copying right in a similarly broad manner.

    So my position is that file sharing for non-commercial purpose is legal on both the download and the upload side in Canada. And I would suggest that for the reasons cited above, as well as my earlier arguments, it would be as difficult to prosecute or sue a casual uploader as it would be to have the levy waived by telling the clerk your CDRs were only for data backup.
    We pay Remuneration before the crime (Score:0)
    by Anonymous Coward on Wednesday September 24, @04:18PM (#1302)
    I can't believe no one has mentioned this before now, as a Canadian I pay remuneration to the Recording industry every time I purchase "media". This is due to the CPCC's media levy. So in my mind the argument goes a little something like this: I cannot be held liable for a crime twice when it is commited once. Thats the old double jeopardy law. So that would mean that since I have admitted guilt by purchasing a blank cd and paying the media levy, and therefore I have paid damages to injured parties, the case is closed and I am not liable anymore. I know what you are all thinking though, what if I downloaded a movie and not music? Well you have still paid damages with any media you have purchased, and if the money does not go to the injured party then why was it paid? Just some thoughts I had while reading peoples responses. Dave Falloon
    Re:We pay Remuneration before the crime (Score:1)
    by timobkg on Friday October 03, @04:13PM (#1309)
    User #885 Info
    Except that you don't pay "renumeration" as you put it. You pay taxes. Taxes come in many forms, and this is one. No judge will believe that paying the proper tax on a good, even if that tax it to make up for illegal events, will then exempt you from that illegal event. Think about it like this: There is crime in society. You pay taxes to the government so that the government can hire a police force to control that crime. So, you are paying taxes because people commit crimes and there is a cost associated with that crime. Now, does this exempt you from the law? Clearly not. If you rob a bank and are brought up on trial, no judge would let you off the hook with a defense of "Well, I've been paying all these taxes to control crime, so I've basically been paying fines and thus this is double jeopardy and I should go free." Double jeopardy says that if you are tried for a crime and are found innocent, you cannot be retried. But it doesn't kick in until you are tried. Since buying blank cds is not a crime (thankfully), you are not tried for the crime until the big bad RIAA comes knocking on your door in their search for misbehaving 12 year olds.
    Re:We pay Remuneration before the crime (Score:0)
    by Anonymous Coward on Monday October 20, @11:39AM (#1337)
    Further to the above comment, different laws have different focuses. Tax law really only cares about collecting taxes. Thus you could be earning income doing all sorts of illegal things and say so on your income tax form but it doesn't mean that the government is condoning it. "Double Jeopardy" is strictly confined to criminal law. Just like OJ, just b/c you're not found criminally liable doesn't mean you can't be sued for civil liability.
    Follow up Article at Tech Central (Score:1)
    by JayCurrie on Wednesday October 08, @01:52PM (#1314)
    User #865 Info
    My Follow up article to Blame Canada is now up at Tech Central Station [techcentralstation.com] While many of you may disagree with my view as to the legality of file sharing in Canada I have to thank the contributors to this discussion for pushing the legal and the technical end of the s.80 issues. And yes, Ryan and Rumour, you are the tenacious law students alluded to in the second piece.

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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