Time To Slay File Sharing Myths

[p2p rules]

This month marks the tenth anniversary of the debut of Napster, the file sharing service that had a transformative effect on the music and Internet services industries.  While many commentators have marked the anniversary by reassessing Napster’s impact and speculating on what lies ahead, now is also a suitable time to put to rest two myths about file sharing in Canada.  

There are far more than just two myths (see textbox below), but the ones that have dominated debate is that all file sharing is legal in Canada and, perhaps as a consequence of this, that Canada leads the world in illegal file sharing activity. Neither claim is true.

The belief that Canada is a veritable “Wild West” where it is legal to upload and download to your heart’s content has its genesis in the recording industry’s failed file sharing lawsuits in 2004.  Following the U.S. example, the Canadian Recording Industry Association filed lawsuits against 29 alleged file sharers at five Canadian Internet Service Providers.

The case was a failure as then-Federal Court judge Konrad von Finckenstein (now chair of the CRTC) denied a request to order the ISPs to disclose the identity of their customers.  Von Finckenstein ruled that the recording industry’s case suffered from evidentiary shortcomings along with questions about privacy and copyright law.  The decision garnered international attention and many mistakenly took it to mean that all file sharing was legal in Canada. 

The reality is that Canadian law features a private copying exemption that includes a levy on blank media. The Federal Court and the Copyright Board of Canada have intimated that the levy, which has generated hundreds of millions of dollars, could apply to personal, non-commercial downloading of sound recordings onto certain blank media. The law therefore opens the door to some legalized music downloading, but it does not cover other content (ie. movies or software) or the uploading of any content.

The second myth, which is endlessly promoted by advocates of legal reforms, is that Canada has the largest file sharing population on a per capita basis in the world. For example, the Conference Board of Canada recently used this argument as its lead finding in a series of reports that were recalled due to plagiarism.

The myth originates from a 2004 study by the Organization for Economic Co-operation and Development (OECD) that examined 2003 file sharing activity data in its 30 member countries. The nearly six-year old study did not consider whether the activities were legal or illegal, but rather focused exclusively on the number of peer-to-peer users.

michaelgeist.ca