joegratz.net

A Canadian Federal court has ruled that making files available to downloaders via P2P networks is not copyright infringement. The decision is here. This ruling is especially noteworthy because Canada has already legalized P2P downloading. So personal, noncommercial use of P2P networks to share music in Canada is not copyright infringement, for either uploader or downloader — at least until Canada passes legislation implementing the WIPO Performances and Phonograms Treaty, to which they are a signatory. The WPPT requires member countries to grant copyright holders the right of “making available” — a right likely implicated by placing copyrighted files in a publicly-accessible folder.

Justice Konrad von Finckenstein noted:

I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service.

His point is that, under Canadian law, distribution requires an overt act, like sending out copies or advertising the contents of the folder. The library makes no such distribution. Does the consumer P2P user? So long as uploading is enabled by default in the software, it seems there is no overt act. Perhaps installing and running the software in the first place is an act of distribution, since the user knows or should know that files will be sent to other users. But that’s not an inevitable conclusion, and von Finckenstein found, instead, that there was no overt act at all. It seems that the record company plaintiffs really weren’t expecting this fight to happen in this case. They didn’t introduce evidence on a number of key, arguable questions — like the central question of whether or not there was a “positive act” of distribution by the P2P uploader.