More Myths about Myths about File Sharing

250,000 legal and levy free P2P songs for less than CDN $200?
Can CRIA seriously say it isn't so?

Richard Pfohl of CRIA has taken on Prof. Michael Geist in a letter to the Editor published in The Star on June 12, 2009 in response to Geist's column on file sharing “myths” published June 8, 2009 The Star.

Mr. Pfohl says:

Michael Geist fabricates more myths than he dispels, and misinforms Star readers about the legality of unauthorized downloading.

Downloading pirated music is not legal in Canada. The copyright law conclusions in the case he cites were overturned on appeal. In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn't apply to downloads made to hard drives.

Widespread misunderstanding of this legal fact illustrates precisely why digital copyright reform, and the legal clarity it would provide, is needed in Canada.

As Mr. Pfohl knows. or ought to know, his description of Canadian jurisprudence on downloading music is inaccurate and misleading. The consistent thread of what the Copyright Board said in 2003 and the Federal Court of Appeal said in 2004 and 2008 is that downloading sound recordings onto something that is not an “audio recording medium” may be infringing. For example, the Federal Court of Appeal said in its 2004 decision at para. 147 that:

If, indeed, digital audio recorders (or the memories embedded therein) fall outside the scope of the definition, copyright infringement could result from the use of such devices to private copy.

So - copying unauthorized sound recordings obtained via P2P onto a 120 GB iPod Classic, for example, where the hard drive memory is permanently embedded (don't even think about trying to take it out!) may indeed be infringing - because the iPod as a whole is a "device" and not a medium subject to the levy.

However, a PC internal hard drive that is not “permanently embedded” and particularly an external plug and play hard drive that is clearly not in any sense “embedded” in anything and serves no function other than to be a large memory medium may very well be “audio recording media.” In that case, downloading any sound recording onto them obtained in any way from any source for private use would be legal in Canada, regardless of whether a levy has ever been sought from the Copyright Board. This follows from what the Copyright Board said in 2003 at page 20-21 of this famous decision and, contrary to Mr. Pfohl's assertion, no Canadian Court has ever ruled to the contrary.

A levy-free terabyte external hard drive that now sells for less than CDN $200 can hold about 250,000 songs downloaded via P2P. The fact that this is apparently legal in Canada is the direct consequence of the private copying levy scheme that Mr. Pfohl’s employer, the Canadian Recording Media Association (“CRIA”), so enthusiastically and effectively lobbied for and was given in the 1997 amendments to the Copyright Act. CRIA was short sighted. Mass access to the internet was already in full flight and the concept of the “celestial juke box” was already old news at that time. The Canadian levy scheme has now generated more than a quarter billion dollars. CRIA members whine about the consequences of their legislation all the way to the bank (and indeed incessantly afterwords), but keep on cashing the cheques.

As CRIA must constantly be reminded, “be careful what you wish for.” And hopefully, Government officials, MPs and Ministers will be careful about who they listens to when it comes to Canadian copyright law and sound public policy. CRIA and some of those who speak for it it, have a poor record for foresight, wisdom, credibility and even basic accuracy in these matters.

All of that said, it is by no means clear that well conceived litigation against individual file-sharers (in contrast to mere downloaders) backed up with sufficient, reliable, non-hearsay and convincing evidence would necessarily fail in Canada under current law under some scenarios. CRIA's members were given a green light or at least an orange light to proceed on such a basis by the Federal Court of Appeal in 2005, but have been unable or unwilling to bring forward the necessary evidence to even try. Perhaps they prefer instead to propagate the myth that current Canadian laws are inadequate, to play the role of the victim of mass "piracy", and to demand new, unnecessary and overreaching legislation.

One would have thought that the recent Conference Board of Canada fiasco would have resulted in lessons being learned by copyright lobbyist organizations. Apparently, in CRIA's case, that’s not the case.

BTW, Michael Geist has a prominent new tech savvy fan in high places in the person of the Hon. James Moore, one of the Minsters responsible for copyright, whose tweet on a more recent column of Michael's in the Ottawa Citizen on June 16, 2009 could easily have described the earlier one which so upset Mr. Pfohl:

Excellent column by Michael Geist in the Ottawa Cit. today. Nice to read policy ideas & substance - not just horse race politics & gossip.

BTW, I should disclose that I've been involved as counsel in all of the above cases about which Mr. Pfohl is inaccurately opining.

HK