Earlier today I provided links to some of the coverage from Thursday's file sharing decision. A small article from Dose, the free Canwest daily paper, was not included (it isn't online) but merits some attention.The article features brief Q & A's with Alex Cameron, who argued the privacy issues for CIPPIC, and with Graham Henderson, CRIA's President. In response to an open-ended question on his thoughts on the decision, Henderson responds:

"The judge has determined that uploading, downloading, it's illegal."

Actually, the court did no such thing. Concluding its copyright discussion at paragraph 54, the court says:

"I make no such findings here and 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."


Henderson continues by arguing that:

"…this judge set a new threshold which is so low, we could meet it in a heartbeat."

While I don't doubt that CRIA might come to court with some reliable evidence this time, this decision makes it clear that privacy matters. How clear? Pippa Lawson, CIPPIC's Executive Director, has compiled the following roadmap:

1. Plaintiff must show that it has a bona fide claim against the proposed defendant, i.e., that they really do intend to bring an action. . . based on the information they obtain, and that there is no other improper purpose for seeking the identity of these persons. (para.34)

2. "There should be clear evidence to the effect that the information cannot be obtained from another source such as the operators of the named websites." (para.35)

3. "The public interest in disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made" (para.36) and ". . .  caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way" (para.42):

a) the information on which a request for identification is made (e.g., IP address) must be timely; no undue delay between investigation and motion for disclosure (para.43)

b) plaintiffs must not collect more personal information than necessary for the purpose of their claim (para.44)

c) if a disclosure order is granted, specific directions should be given as to the type of information disclosed and the manner in which it can be used. In addition, the court should consider making a confidentiality order or identifying the defendant by initials only (para.45)

** If either (a) or (b) are not met, the court may refuse to make a disclosure order.

While this week's decision will be discussed for some time, there are some issues that are simply beyond debate. Claims that the judge ruled uploading and downloading illegal have as much credibility as suggestions that P2P is responsible for the industry's ills or that suing file sharers does anything other than put the industry in the worst possible light.

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