BMG Canada Inc. v. John Doe
Encyclopedia
BMG Canada Inc. v. John Doe, aff'd , is an important Canadian copyright
law, file-sharing, and privacy case, where both the Federal Court of Canada
and the Federal Court of Appeal
refused to allow the Canadian Recording Industry Association
(CRIA) and several major record labels to obtain the subscriber information of Internet service provider
(ISP) customers alleged to have been infringing copyright.
, Rogers Communications
, Shaw Communications
, Telus
, and Vidéotron
) to divulge the account information of 29 IP address
es that were believed to have downloaded approximately 1,000 copyrighted music files through the KaZaA
and iMesh
file-sharing software. Shaw strongly opposed the motion, citing customer privacy and technical difficulties. Telus, Bell and Rogers also expressed varying levels of disagreement, also on privacy grounds. Vidéotron offered no opposition: they chose not to appear at the court hearing, instead stating their support of the CRIA's position and readiness to provide the requested information as soon as a court order was issued.
, Ontario
.
Justice von Finckenstein held that the ISP could not be compelled to divulge their user information. To be able to compel the ISPs to divulge personal information that was protected by both PIPEDA and user agreements with the ISPs, von Finckenstein ruled that several conditions must be met:
He noted that there was no evidence that the files being downloaded were illegal. He held that under the Copyright Act, downloading a song for personal use was not illegal. CRIA had only been able show that the users made copies available on their shared drives. CRIA also failed to show that there was no alternative to gain the requested information. Von Finckenstein concluded that the plaintiff was unable to show that the importance of the disclosure outweighed the importance of the right to privacy, and denied the request for discovery.
Justice Sexton, for the court, upheld the core finding of the previous case, that the identities should not be revealed to the plaintiffs. He found that merely placing files in a shared directory does not constitute the "authorization" needed to infringe on the distribution right. He modified the test required in this kind of case and also said that, given the preliminary stage of the proceedings, the lower court should not have commented on whether the alleged file-sharing was actually copyright infringement. However, Justice Sexton only held that exceptions to the private right of copying were not considered, not that downloading a song in and of itself was a violation.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law, file-sharing, and privacy case, where both the Federal Court of Canada
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
and the Federal Court of Appeal
Federal Court of Appeal (Canada)
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
refused to allow the Canadian Recording Industry Association
Canadian Recording Industry Association
Music Canada is a Toronto-based, non-profit trade organization that was founded 9 April 1963 to represent the interests of companies that record, artists, manufacture, production, promotion and distribution of music in Canada...
(CRIA) and several major record labels to obtain the subscriber information of Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
(ISP) customers alleged to have been infringing copyright.
Background
CRIA made an application under the Rules of the Federal Court to compel 5 ISPs (Bell CanadaBell Canada
Bell Canada is a major Canadian telecommunications company. Including its subsidiaries such as Bell Aliant, Northwestel, Télébec, and NorthernTel, it is the incumbent local exchange carrier for telephone and DSL Internet services in most of Canada east of Manitoba and in the northern territories,...
, Rogers Communications
Rogers Communications
Rogers Communications Inc. is one of Canada's largest communications companies, particularly in the field of wireless communications, cable television, home phone and internet with additional telecommunications and mass media assets...
, Shaw Communications
Shaw Communications
Shaw Communications is Canada's largest telecommunications company that provides telephone, Canada's fastest Internet and television services as well as broadcasting and soon Wifi. Shaw is headquartered in Calgary, Alberta...
, Telus
TELUS
Telus is a national telecommunications company in Canada that provides a wide range of telecommunications products and services including internet access, voice, entertainment, video, and satellite television. The company is based in Burnaby, British Columbia, part of Greater Vancouver...
, and Vidéotron
Vidéotron
Vidéotron GP is a Canadian integrated telecommunications company active in cable television, interactive multimedia development, video on demand, cable telephony, wireless communication and Internet access services. Currently, the company primarily serves Quebec, as well as the francophone...
) to divulge the account information of 29 IP address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
es that were believed to have downloaded approximately 1,000 copyrighted music files through the KaZaA
Kazaa
Kazaa Media Desktop started as a peer-to-peer file sharing application using the FastTrack protocol licensed by Joltid Ltd. and operated as Kazaa by Sharman Networks...
and iMesh
IMesh
iMesh is a media and file sharing client that's available in 9 languages. It uses a proprietary, centralized, P2P network operating on ports 80, 443 and 1863. iMesh is owned by an American company iMesh, Inc. and maintains a development center in Israel...
file-sharing software. Shaw strongly opposed the motion, citing customer privacy and technical difficulties. Telus, Bell and Rogers also expressed varying levels of disagreement, also on privacy grounds. Vidéotron offered no opposition: they chose not to appear at the court hearing, instead stating their support of the CRIA's position and readiness to provide the requested information as soon as a court order was issued.
Federal Court decision
The judgment of the Federal Court was delivered 31 March 2004 in TorontoToronto
Toronto is the provincial capital of Ontario and the largest city in Canada. It is located in Southern Ontario on the northwestern shore of Lake Ontario. A relatively modern city, Toronto's history dates back to the late-18th century, when its land was first purchased by the British monarchy from...
, Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
.
Justice von Finckenstein held that the ISP could not be compelled to divulge their user information. To be able to compel the ISPs to divulge personal information that was protected by both PIPEDA and user agreements with the ISPs, von Finckenstein ruled that several conditions must be met:
- (1) applicant must establish a prima facie case against the unknown alleged wrongdoer; (2) person from whom discovery is sought must be more than an innocent bystander; (3) that person must be only practical information source; (4) said person must be reasonably compensated for expenses of compliance with the discovery order; and (5) the public interests favouring disclosure must outweigh legitimate privacy concerns.
He noted that there was no evidence that the files being downloaded were illegal. He held that under the Copyright Act, downloading a song for personal use was not illegal. CRIA had only been able show that the users made copies available on their shared drives. CRIA also failed to show that there was no alternative to gain the requested information. Von Finckenstein concluded that the plaintiff was unable to show that the importance of the disclosure outweighed the importance of the right to privacy, and denied the request for discovery.
Federal Court of Appeal decision
The judgment of the Federal Court of Appeal was delivered 19 May 2005, at Toronto, Ontario.Justice Sexton, for the court, upheld the core finding of the previous case, that the identities should not be revealed to the plaintiffs. He found that merely placing files in a shared directory does not constitute the "authorization" needed to infringe on the distribution right. He modified the test required in this kind of case and also said that, given the preliminary stage of the proceedings, the lower court should not have commented on whether the alleged file-sharing was actually copyright infringement. However, Justice Sexton only held that exceptions to the private right of copying were not considered, not that downloading a song in and of itself was a violation.