Canadian court refuses to make ISPs name file-swappers

The Canadian Recording Industry Association (CRIA) filed suit in February last year, hoping to follow in the footsteps of the US music industry in targeting high volume file-sharers – those who distribute and download copyrighted works over P2P services such as Kazaa.

In the US, the industry uses software to digitally identify a user who is offering to distribute copyrighted files, and then serves a subpoena on the user's ISP, requesting the name and address of the individual whose account was being used to distribute copyrighted music.

The CRIA adopted the same method, targeting 29 file-swappers, but in March last year a Federal Court refused to grant the subpoenas, arguing that the industry had not put forward sufficiently persuasive evidence to overturn the privacy concerns of the case.

The CRIA appealed, but lost the case on Thursday when the Court of Appeal agreed that the evidence provided by the CRIA was insufficient.

However, the Court did not rule out similar successful actions in the future, and set out what it thought was necessary to force the identification of file-swappers. Said the Court:

"It is sufficient if they show a bona fide claim, i.e. that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons."

But it warned, "caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way."

The Appeal Court then considered another controversial aspect of the Federal Court's decision last year – that merely making music files available on one's computer does not constitute copyright infringement under Canadian law.

At the time, commentators had described the ruling as creating a "haven" for pirates.

The Appeals Court found that such a finding was premature. As a result, the question of whether file-sharing infringes copyright in Canada remains unclear.

The CRIA welcomed the ruling.

"The court has clearly articulated the evidentiary standards that we need to meet and we are satisfied that we can meet those standards in future applications. Large-scale music swappers should know that they can and will be held accountable," said CRIA President Graham Henderson.

Speaking to Reuters, he warned that the industry was likely to be pursuing "fresh targets", rather than the original 29 file-sharers.

Privacy activists, the Canadian Internet Policy and Public Interest Clinic (CIPPIC), also claimed victory.

"This is a landmark privacy decision that affects all Canadians," said Philippa Lawson, CIPPIC's Executive Director. "The court has reaffirmed the importance of on-line privacy and confirmed that those seeking to sue internet users cannot uncover the anonymity of their targets on the basis of mere allegations. Instead, plaintiffs must provide solid and timely evidence that supports a bona fide claim against the alleged wrongdoer".