Canadian record labels appeal P2P ruling

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Canadian courts have it right

Here's why:

It' not illegal here to put something in a shared directory, not like the US.

Availablility to D/L is not enough.
Being present is not enough.
Someone has to D/L it.

Now in order to consitute infringement a portion of a D/L is not enough, It must be significant (like over 30 or 40 %... I say it could be lower though). With D/L done in parts and many people contributing (lets say each does not meet the margin) no infringement takes place. No different than sharing trailers.


What's also at case here is the agents that are used to D/L the files to check for infringement are "Legal Downloaders" (anyone agents of the RIAA/MPAA are allowed to download otherwise they would be infringing/ breaking the law), hence "No Infringement" takes place. You can't break the law to catch someone breaking the law.

It's not a crime here to D/L it to someone who has rights to the material.

So in order for the CRIA or RIAA to catch someone here they have to wiretap (Get them transferring it to a third party who they know does not have rights to it), and they have no rights for that. Beside how you be certain the 3rd party doesn't have rights to it.

That means in order to catch infringement here you need the police to do it. And the police can't take the word of the CRIA about who is infringing either. They need proof not rumors, and since they cannot use the CRIA info because it's worthless they need 3rd parties to come forward (Not likely to happen).

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Now as to downloading - that is legal here period.

Why?, because you can't be sure the site your D/L from is the legal distributer for the media. Case in point - Apple Itunes - They had released some music they weren't licensed to upload, are the Downloader guilty of a crime. NO!
The person can assume the site was legal and so were the files. Same goes with P2P or any other site. It's not up to the Downloader to go the extra mile to determine if the uploader or the site is legal. Beside how do you tell. Does the site have some kind of Stamp or legal document to prove it on the webtsite or webpage and how does one verify that it is real and not bogus. In order to be sure you need to see the official document, not a facsimile/copy.

So in order to prove intent to commit infringement you need to prove he knew the download site/person was illegal or the file was illegal. Remember a filename does not make intent. I could have my kids play "Snow white and the seven dwarves" there and it would not be infringing. The person must know it's a complete infringing file.

That sort of make it tough to prove here. You can do it with first run movies in the theatre, those files would be illegal.

Privacy rights are tantamount here. The CRIA and th e RIAA are not legal investigation arms. They have no rights to spy on communications here.

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Look I agree that downloading movies that are in the theatre and music yet not released on radio is illegal period. But stuff that is available on the radio/TV/Cable is legal to download/copy. It's no different than time shifting content (VCR's and the VCR ruling). And with the courts ruling that we have the same rights as to media shifting (MP3 and other types of players) as an extension of the VCR ruling. What difference if I change the way I record the media; Someone media shifts it and I copy that copy. Provided it's on TV/radio or cable already. Remember the web copy is not an exact digital copy. It has pops, hiss, noise. And takes about 1/10 of the original info to make the file. It's like trying to pass off a xerox copy of the mona lisa as a original painting.

As for software (for bittie' case) most of the stuff on p2p would be illegal. Problem here is how to catch them without violating the law. The BSA/RIAA/MPAA have no rights to investigate here. Only the Police and they can't take their word on it, they want proof (physical evidence (CD/DVD) or 3rd party witness)

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I would like to hear everyones opinions here , even bittie's.

Please post back your comments.

Posted by: twinkler@...   Posted on: 07/13/04 You are currently: a Guest | Members login | Terms of Use

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