New haven for free music: Canada

Want a free copy of Janet Jackson's newest album? Or the latest song by Sarah McLachlan? If you're in Canada, just go to the Internet.

Music lovers north of the border can swap songs online without fear of breaking the law, thanks to a Canadian court decision this week.

A Federal Court judge ruled Wednesday that downloading songs for personal use or having files available on a computer connected to the Internet doesn't violate copyright laws.

"This is a victory for new technology and the Internet and the rights of users of new technology in Canada," says Howard Knopf, an Ottawa lawyer involved in the case.

But Americans and Europeans beware: this strictly Canadian decision doesn't bring any more clarity to the murky issue of file-sharing in their parts of the world.

"Canadian and American laws are very different," Knopf says. "This won't have any direct effect on the United States, but it'll certainly cause a lot of concern down there."

Nonetheless, this court decision is a blow to the music industry's crusade to stop people from swapping songs through popular Internet file-sharing services like Kazaa or Grokster, also known as peer-to-peer (P2P) networks.

The Canadian court decision comes one day after the International Federation of the Phonographic Industry (IFPI) announced a new wave of lawsuits against 247 individuals in Canada, Denmark, Germany, and Italy accused of illegally sharing copyrighted music.

An intellectual-property lawyer in Germany, where the IFPI has reported 68 individuals to the police, expects the industry body to pursue its case there, even in light of the Canadian ruling.

"My best guess is that the industry will continue its campaign because for the time being that is the only thing it can do," says Stefan Dittmar, a lawyer at the Berlin office of the international law firm Baker & McKenzie. "They have failed to come up with any strategy other than intimidating people. But it won't work."

A spokeswoman for IFPI, whose members brought the Canadian and European suits, says she does not think the Canadian ruling "will impact our European campaign much, because we think it is a misreading of the law in Canada." Should the judgment stand after appeals, however, "it probably will have an impact."

In Denmark, more than 120 people are being sent letters asking them either to stop file-sharing and pay compensation, or face legal action, according to the IFPI. In Italy 30 people have been charged with copyright infringement since the Milan prosecutor's office began ordering raids in January, which have netted computers, hard discs, and files.

So far the legality of file-sharing in Germany has not been tested in the courts, says Mr. Dittmar. "The first cases in Germany are being talked about now, but there have not been any major judgments" to clarify the law, he says.

If file-sharing is ruled to be illegal in Europe, he adds, the Canadian judgment will not shelter European music-swappers, even if they download their songs from a Canadian server. "A copyright holder can pursue an infringement wherever it occurs," he explains. "If you download something in Germany, German law applies."

The Canadian Recording Industry Association (CRIA) tried using the courts to force Internet service providers to release names of 29 people suspected of "distributing thousands of digital music files to millions of strangers" for its Canadian lawsuit.

Justice Konrad von Finckenstein not only rejected CRIA's request in his ruling, he destroyed the industry's case by declaring that making files available on a public network doesn't infringe on copyright.

"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 who places a personal copy on a shared directory linked to a P2P service," he said.

His ruling backs a decision by the Copyright Board of Canada last December that stated that downloading a song for personal use isn't copyright infringement. The CRIA plans to appeal.

"In our view, the copyright law in Canada does not allow people to put hundreds of thousands of music files on the Internet for copying, transmission, and distribution to millions of strangers," says Richard Pfohl, a lawyer for the CRIA.

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