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The U.S. recording industry is firing off about 300 lawsuits a week against file-sharing individuals. But nothing of the sort has happened in Canada.
Can it happen here?
Brian Robertson, president of the Canadian Recording Industry Association, the local counterpart of the Recording Industry Association of America, has thundered on about "piracy" and has threatened similar action.
But a look at our legal structure and our copyright laws suggests Mr. Robertson may be doing little more than rattling his sabre.
Though Canadian copyright experts can't say for sure what would happen if CRIA were to sue Canadian individuals, they agree it would not be a slam-dunk.
In the first place, most of the complaints against U.S. file-sharers flow from the 1998 Digital Millennium Copyright Act, which toughened many copyright restrictions.
The RIAA is using provisions of the DMCA to force Internet service providers to reveal the identities of subscribers using peer-to-peer (P2P) networks such as Kazaa. Those users go by nicknames, and so the RIAA's on-line watchdogs can see only that someone called, say, PartyGrrl53 is sharing 600 songs, and that PartyGrrl53 can be traced to an IP address belonging to a certain ISP. After that, the ISP is required by law the DMCA to reveal that subscriber's name.
But the DMCA does not exist in Canada. Our own recording industry is pushing very hard to get an act like it, but we don't even have draft legislation.
The Canadian Copyright Act is a lot different from U.S. law. Our act says it is perfectly legal to copy music for your own purposes. The language clearly says that "the act of reproducing all or any substantial part of a musical work embodied in a sound recording, a performer's performance of a musical work embodied in a sound recording, or 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."
It's telling that the only time the CRIA website uses the word "illegal" in the pages it devotes to piracy is in reference to U.S. industry losses, not Canadian ones. The word "theft" is not used at all.
But file-sharers may find it more problematic when it comes to uploading their music files. The act says the right to copy "does not apply if it
is done for the purpose of
selling or renting out, or by way of trade exposing or offering for sale or rental, distributing, whether or not for the purpose of trade."
Worried Canadians can always disable access to their shared-0files folder, but that would spell trouble for the entire P2P community; without something to share, no one would have anything to download. The whole idea of file-sharing networks depends on upload as well as download.
Lawsuits against Canadian downloaders are also likely to collapse if they were to be tested in court.
That's because in Canada, the industry is collecting a levy on recordable CDs. (It now wants to extend this to MP3 players, flash memory and blank DVDs. Ordinary PC hard drives could be next on their list, but the industry fears wrath of the giant computer hardware industry, and has held back on demanding a levy on hard drives).
All Canadian file-sharers in fact all those who buy recordable CDs, even if not for recording music have for several years paid for the privilege of downloading songs via peer-to-peer programs.
The Canadian Private Copying Collective, which pushed for and administers the levy, has already hauled in close to $80-million over the past several years for losses supposedly due to sharing music files.
So the industry is already being compensated, and it would be very difficult, under current legislation, to persuade a court to salve the wounds of the record companies and their related organizations by suing individuals for even more money. The levy was the result of an industry demand, and if the industry feels it is still not being properly compensated, then it must address itself to the Copyright Board, which sets the rates, and not file-sharing individuals. (The CPCC has been trying to get the Copyright Board to raise the rates dramatically. A decision is due soon.)
As one copyright lawyer put it, "The music industry seems to want it both ways to collect as much money as possible from practically everyone who buys blank CDs, DVDs, flash memory and so on, regardless of whether they download or copy music, and then to intimidate and accuse the downloaders of being pirates and thieves."
All this suggests that using the legal system as a weapon in a scare-tactic campaign to dissuade file-sharers the industry has been quite honest about this is not something that would be as easily accepted in Canada as it is in the United States, where litigation is part of daily life.
And even there, the RIAA action is already headed for trouble. Senator Norm Coleman, chairman of the U.S. Senate Permanent Subcommittee on Investigations, last week demanded an accounting of how the scare tactic is working. "The industry seems to have adopted a 'shotgun' approach that could potentially cause injury and harm to innocent people," he argued. Moreover, several universities, along with telecommunications giant SBC Communications, are contesting the subpoenas.
It's no slam-dunk that the RIAA will succeed in stopping peer-to-peer networks in the United States by resorting to the courts. In Canada, it's not even likely the recording industry is going to get far enough down the court to even try for the basket.
-JACK KAPICA
:ninja: