by Mike Masnick

The Canadian Loophole In The RIAA's Plan

from the whoops dept

While we've discussed the Canadian "music copying levy" before - which charges an additional fee on every blank CD and tape sold in Canada to compensate the music industry should those items be used to copy music (or, to be honest, even if they're not used for that purpose). However, I hadn't necessarily thought through all the consequences for how this law which effectively legalizes file sharing in Canada could impact the RIAA's sue your customer strategy in the US. The RIAA is going after "supernodes" - those who are offering up the most songs for download. However, if those supernodes all move to Canada, where, technically, they're legal, people in the US can still download from them. The writer suggests that this "Canadian hole" is a huge one that's not likely to close - and it doesn't appear that the RIAA realizes what's likely to happen. Of course, the RIAA will probably claim that the Canadian law is being misinterpreted - but it's going to involve quite the extended lawsuit for that to be determined (and they very well might lose). The writer suggests the RIAA consider "plan B" and look towards business models that involve embracing file sharing.

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  • identicon
    Mathew, 18 Aug 2003 @ 7:53pm

    RIAA and Canada

    That's an interesting article, except for one crucial thing -- copyright legislation in Canada considers "private copying" to be copying by an individual of recorded material that he or she has already paid for. Thus, it doesn't provide a loophole for P2P file-sharers. Paying a levy also doesn't necessarily give a user carte blanche to do whatever they wish with a CD, although some Canadians would like to think so. That said, however, the laws on digital file-sharing are murky in Canada, since we haven't agreed to abide by the terms of the DMCA...

    reply to this | link to this | view in chronology ]

    • identicon
      thecaptain, 19 Aug 2003 @ 6:01am

      Re: RIAA and Canada

      Actually the law says that copying a copy-righted work for "private use" is quite legal. I don't know what you mean by saying we think it gives us "Carte Blanche" but it does mean that I can borrow a CD and copy it for my personal use.

      However, under the law, I am not permitted to distribute such works. That means that if I offer the cd for download, I could be construed as "distributing" that work and thus be breaking the law...

      This means that downloading an MP3 is ok, but sharing them isn't....the way I see it anyway.

      However, we've had arguments where its conceivable that someone could use the defence that opening up your shared drive isn't distributing and that the downloaders themselves are "borrowing" (ie: making a copy of a work for personal use) and therefore isn't breaking the law. But we're splitting hairs at this point.

      I found this page to be rather clear in its explanation:

      reply to this | link to this | view in chronology ]

    • identicon
      Canuck, 10 Sep 2003 @ 9:31pm

      Re: RIAA and Canada

      What if you don't copy the music to a CD?
      I just listen to downloaded music on my PC without burning it. Would that be considered illegal in the US? And do you think anyone in Canada could get sued for downloading excessively?

      reply to this | link to this | view in chronology ]

    • identicon
      Ivan, 30 Sep 2003 @ 11:43pm

      Re: RIAA and Canada

      Your "one crucial thing" is actually incorrect: The copyright act has no requirement that the recorded material copied for private use have been paid for. I am unaware of any cases where a judge has imposed this requirement, and I do not think there is a reasonable interpretation of the statute that would allow that to be read in. The Act says:

      Where no infringement of copyright

      80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

      (a) a musical work embodied in a sound recording,

      (b) a performer's performance of a musical work embodied in a sound recording, or

      (c) a sound recording in which a musical work, or a performer's performance of a musical work, is embodied

      onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance or the sound recording.


      (2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following in relation to any of the things referred to in paragraphs (1)(a) to (c):

      (a) selling or renting out, or by way of trade exposing or offering for sale or rental;

      (b) distributing, whether or not for the purpose of trade;

      (c) communicating to the public by telecommunication; or

      (d) performing, or causing to be performed, in public.
      * * *
      The difficulty with file sharing is that it is arguable that allowing people to copy things from your shared folder would be "distributing". If you dwonload something for your private use, but then leave it in your shared folder, it is quite arguable that the copy was made for the purpose of distributing, and this finding is even more likely if people upload this material from you.

      By contrast, borrowing a CD from a friend and making a copy probably would not expose your friend to liability, since he didn't make a copy, and you made the copy for your own use, not to distribute it to others.

      The safer workaround of course would be to remove the items from the shared folder once downloaded, but if everyone did that, file sharing of music files would be unworkable. You would probably be within the letter of the law if you just copied songs for yourself and didn't post them for others.

      reply to this | link to this | view in chronology ]

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