Sorry for the delay. Stop biting your nails, curl up in a comfortable chair with a hot cup of tea and read this final chapter of my essay.
So the Federal Court of Appeal made it clear that the area of downloading, hard drives and file sharing remains a very grey area. In future cases, which the CIRA will no doubt file in the coming months, these aspects of the Copyright Act will be tested. This foreboding was voiced in one of Sexton’s final comments: “[I] wish to make it clear that if this case proceeds further, it should be done on the basis that no findings to date on the issue of infringement have been made.” (Sexton, par.54)
This is the decision that has been seen as a victory for privacy rights in Canada, but essentially it describes in detail the legal standard that the CIRA must meet in the future. The CIRA will simply show that they have a bona fide claim for copyright infringement and be handed the names of alleged infringers. Although everyone involved seems to value the privacy rights of Kazaa users, the CIRA makes a compelling point that file sharing “is a blatantly public activity. It is carried on in full view of millions of people. There is no reasonable expectation of privacy here at all.” (Henderson, 2005) Why this was not mentioned during the motion for discovery is not clear, but it will surely make up a part of their future bona fide claim.
The Canadian Government is expected to implement new reforms to the copyright act including a making available right, legal protections for technological protection measures, a notice-and-notice system to address online infringement, protection for rights management information, the introduction of a reproduction right for performers of sound recordings, and an adjustment of the term of protection for sound recordings. (Canadian Heritage, 2005) This is after denying even more drastic changes proposed by a CIRA-lobbied committee tasked with drafting the proposals. (Bulte, 2005) It will no doubt open the floodgates for many RIAA-style lawsuits against Canadians that in the U.S. have shown little effect of the proliferation of P2P file sharing. Geist shares the opinion that “while [the CIRA] is legally entitled to file these suits, similar actions in other jurisdictions have had no discernable impact on file sharing and put the industry at odds with the growing concern for personal privacy. That makes for a risky strategy with few winners and many losers.”
