Time To Slay the File Sharing Myths

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, my weekly technology law column (Toronto Star version, homepage version) argues that 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.

Canada stood first in that study, yet there is ample reason to doubt its validity today. In addition to the fact that the OECD made no claims about illegal activity nor about file sharing in the more than 150 non-OECD countries, newer studies indicate that Canada is declining as a hub of file sharing activity relative to the rest of the world.

BayTSP, a U.S. firm that identifies and tracks copyright content for movie and music interests, recently issued a report that assessed the number of infringement notices arising out of peer-to-peer and Internet use. According to the report, Canada declined to 10th worldwide (it was seventh last year).  The top three countries were Spain, Italy, and France, with each having at least five times the number of infringement claims as Canada.

The decline runs contrary to Canadian file sharing mythology, but it should not surprise since it mirrors Canada’s decline in the global high-speed Internet access rankings.  This suggests that Canadians may have been early file sharing adopters due to better access, but other countries have now passed us on both fronts.

Much has changed since Napster took the world by storm 10 years ago.  As we look ahead to the next decade, it is time to ground the debate in fact rather than fiction.

The Other File Sharing Myths

Canadian Artists are Opposed to File Sharing.  While some certainly are, both the Songwriters Association of Canada and the Canadian Music Creators Coalition have expressed their support for the full legalization of file sharing through a new levy scheme.  Moreover, a growing number of artists have reported great commercial success by using peer-to-peer networks to distribute their work.

File Sharers Don’t Buy Music.  A growing number of studies indicate that the opposite is actually true. A 2007 study commissioned by Industry Canada concluded that there is positive relationship between P2P file sharing and CD purchasing, while last week Vuze, a peer-to-peer video distribution company, released a survey that found that peer-to-peer users attend more movies and purchase more DVDs than general Internet users.

Peer-to-Peer Networks Contain Nothing But Infringing Content.  Music and movies constitute a big part of file sharing, but they share space with open source software, independent films, and even public broadcasters such as the CBC, who have all employed file sharing technologies as an efficient distribution system.


  1. Devil's Advocate says:

    Another Myth…
    You forgot the one big myth about file sharing that doesn’t seem to die in the minds of Big Business and Government alike…

    That file sharing can somehow be controlled.

    This may be the most important myth to debunk, as corporate interests and governments are currently “sucking the life out” of everyone’s Internet experience in their clueless attempts to contain file sharing, only to see file sharing continue, increase, and thrive.

  2. More…
    – Each download is a lost sale.
    – The money lost from each of the above lost sales somehow dissapears and never shows up again, and the goverment (and the citizens) lose the taxes from this money.
    – Downloads are about freeloading and not about beeing able to use something I have purchased how I want to when I want to and on the device I want to.

  3. Dangerous assumptions
    1) That the Recording Industry speaks for the artists. They speak for themselves and their own profits. Why give money to the artists when they can keep it for themselves. The Recording Industry is a for profit group, answerable to their shareholders, whose intent is to make the most money for the shareholders. They are not a philanthropic organization.

    2) That all activity using a potentially infringing technology is infringing. Given that assumption, we could all have our cars confiscated… after all, how many cars in Canada are NOT capable of doing 100 kph? At that speed, you would hit the Ontario street racing threshold in an area of 50 kph limit (say, in residential areas).

    Does infringing file sharing occur over high speed links? Sure. It would be hard to argue against this.

  4. Franky B. says:

    Re: Another Myth…
    @Devil’s Advocate:

    I don’t think that’s one of the myths you want to debunk if you want this issue to go forward. Nothing gets a bunch of old coots to oppose you as fast as saying “Nah-nah, I’m going to co something you don’t like and there’s nothing you can do to stop me!” Believe me, they’ll find a way and it will be insanely costly and draconian. The truth is there is always a way to control file sharing. It may not be a technical mechanism, it may not be efficient, and it may not be fair, but they could find a way.

    It’s a lot more constructive to make them see that there is no point in stopping file sharing, rather than telling them they can’t do it.

  5. Couple more
    A couple I run up against regularly (particularly on pc/software support forums) are:

    1)File sharing software will infect your computer with viruses, trojans, spyware, etc. If anything I’ve found the “pirate” community is quite quick to assess and deal with any infected file.

    2)There is no legal use for torrents. Which is also false. I regularly use torrents to d/l linux distros, some GNU software, as well as game patches (Blizzard’s own client is torrent-based) and a band I like maintains their own tracker for live shows and unreleased/rare recordings.

  6. Maebnoom says:

    Excellent posting once again.

    People need to realize that there’s much more to P2P than a bunch of kids “stealing” the latest Eminem release. Much more. In fact, there’s even a site out there that has bands approaching it, asking for permission to add their latest album to the site, in exchange for exposure; apparently it’s quite a popular & successful move on both sides of the fence. The same place even runs regular charity events which gets users to help out their communities; they seem to get quite a bit of participation out of these “free-loading” pirates…

    This kind of forward thinking is something you just don’t see with the “old-school” music industry.

    File sharing is hardly the evil entity it is often made out to be.

  7. Top myth: Copying is theft
    Because copying is not theft, as the entertainment cartels want you to believe.

    Copying isn’t theft
    Stealing a thing leaves one less left
    Copying it makes one thing more
    That’s what copying’s for.

    Copying isn’t theft
    If I copy yours, you have it too
    One for me and one for you
    That’s what copies can do.

    If I steal your bicycle,
    You have to take the bus
    But if I just copy it,
    There’s one for each of us!

    Making more of a thing
    That is what we call copying
    Sharing ideas with everyone
    That’s why copying…
    …Is fun!

    (Song by Nina Paley)

  8. CPCC is also a thief!
    When I recorded and got airtime on several radio stations, I enquired from the CPCC for what my royalty would be or what hoops as an artist I had to jump through to get exception. The conversations in part, went like this:

    CPCC: “You have to get your royalty from your collecting society.”
    ME: (very frustrated explaining to this CPCC turnip a third time what an Inde is)
    CPCC: “You have no collecting society? Then you are not entitled to anything.”
    ME: “You’re saying I am not entitled to any royalty for MY music that I hold 100% of the copyrights for?”
    CPCC: “That is correct sir. You are not entitled.”

    It was around that time I flat out quit.

  9. Devil's Advocate says:

    @Franky B…
    “The truth is there is always a way to control file sharing.”

    I rest my case, as you believe such a myth.

    And where, exactly, did you read from my words that I suggested someone try to TELL these idiots they’re beating a dead horse?? With all that’s already happened, it’s quite obvious they’re completely CLUELESS (as it appears others are as well) to the fact it can’t be done.

  10. @Devils’s Advocate…
    Actually, Frankie is more or less correct (at least from the perspective of the Internet). You shut down the Internet… Short of that, I can’t think of any way to do it. Of course, people will just start to use memory sticks and removable disks… oops, we’ll have to make them illegal too then.


  11. @Devils’s Advocate and Anon
    You don’t need to shut down the internet, just have the ISP firewall every end user so they can’t run any servers (including MMO games and P2P). Require anyone who does run a server to be licensed (say like a broadcaster is now), and firewall any country in the world that does not do the same thing.

    For good measure, just in case any of those nasty pirates try to hijack legitimate services to distribute their booty, we can give the RIAA and the police direct access to the ISP databases (so they don’t even have to bother to ask for your ID any more), and an easy network tap for monitoring all data on the network.

    Finally, impliment the 3 strikes laws as the RIAA wants and impose really huge statutory fines.

    Your right. It wont stop all the pirates, but it will knock piracy back to 1970 levels. It may stifle innovation, the growth of the Internet, and infringe everyone’s privacy, but hey somebody has to pay the cost to rid us of all this piracy.

  12. Our Canadian Laws Are Already Strong, but judge, crown, police are dumb.
    I recently am fighting a large “copyright” case in Canada, I got charge with multi-counts of theft, possesion, fraud because I was caught have a small number of “pirated” games (very little, less than 200, but I make the mistake of running one in front of undercover agency called IPSA), and then he push and push to have one, so I give him the disc, within a few months, my home, business, everything got raid and taken.

    I have no problem paying the price for having a few pirated discs, do the crime, do the time.

    The problem I have, is the police, judge, crown, and undercover people don’t have the time or want to look into the stuff seized.

    They counted every single disc in my home, and business as PIRATED, COUNTERFEIT, THEFT, if it was BURNED it was A CHARGE.

    The problem is 90% of the discs, where totally personal items, years of tax records (15 years in business), backups of old customer invoices (I sold computers for many years, discs of programs which I 100% AUTHOR myself and COPYRIGHT TO, I WROTE it, years of burning the midnight oil, coding databases, websites, etc. but the sources and complied programs for save keeper and archive used where burned to DISC. — BANG — CHARGES, CHARGES, CHARGES, CHARGES UPON CHARGES.

    Even all my personal videos, wedding videos, photos, trips to disneyland with the kids, everything disc is listed as FRAUD, THEFT, and charge in my docket.

    It is going to cost thousands, and thousands of lawyers fees, just to see my case in court and to prove myself that I am only guilty for the few dozen pirated games, not the all the discs they found during the raid.

    I was born in this nice country of ours CANADA, but if I ever get my PASSPORT back from the police and this case is over, and the crown sets me free, trust me Canada will never see me again.

    Our rights are long gone in this country, we have enough laws here, but we don’t have the brains installed in the people running the country and using these laws against people that are not even doing any harm to others.

    I might not even get any of my stuff ever back, stuff seized by police is destory, so all my life, work, past, memories are gone, only thing I have left is what I remember in my flesh and bones, no proof I did everything in this world, or been anyplace.

    We live in a very sad country, there is more freedom and rights in an dictorship run country like Cuba, then in Canada.

    -=(walking in circles, waiting for the courts to set me free, so I can kiss goodbye to my native canada forever)=-

  13. Devil's Advocate says:

    @Anon & RIAA…
    “You shut down the Internet.”
    “…just have the ISP firewall every end user so they can’t run any servers…”

    Since both of these actions would not only affect the income of all providers, but also be truly incomprehensible, I again rest my case.

    The fact is, file sharing cannot be CONTROLLED. To be controlled, there would have to be the ability to affect the one worldwide activity, without impacting many, many other things.

    They keep trying to sue search engines and P2P/torrent sites out of existence, even succeeding, only to have even more sites emerge.

    They keep trying to sue the users, yet more people than ever engage in file sharing.

    They keep proposing all sorts of controversial measures involving governments and providers, but it always backfires in the end.

    And providers aren’t exactly in a good position to try their hand at controlling it either. Everything they might try only affects their bottom line. In the end, all the bribe money in the world from the MAFIAA wouldn’t compensate them for lost subscriptions and bad public sentiments.

  14. @Devils’s Advocate…
    Perhaps you missed my sarcasm. The “problem” is becoming so large that situations such as reported by anon-also are starting to happen; organizations such as the RIAA will start throwing around accusations to see what sticks (either because the accused can’t afford to defend themselves, or the courts don’t have time to examine all of the charges).

    In the case of the first person that they took to court, I understood that the RIAA originally accused them of holding over a 1000 illegal copies; by the time it went to trial it was down to a dozen or so, since the vast majority was either public domain, legally held or for something that the RIAA did not represent the rights holder. Most people, however, paid money based on the claim without going to court.

    This is why they keep trying to shut down P2P sites. P2P is a file sharing mechanism; that users make available copyrighted material using the mechanism is beside the point. The P2P sites are easier targets to go after, especially given that the courts unfortunately aren’t particularly well versed in tech issues. Notice that they’ve been going after the smaller sites. This allows them to create precedent which then can be used against the larger sites, as well as organizations such as Google, Yahoo and Microsoft who have far deeper pockets to defend themselves. The unfortunate precedent is that it means that a company can be held civilly liable for an action taken by one of their customers using the product… for instance, GM could be held liable for someone intentionally running over another person using a Chevrolet Malibu.

    Not only does this help remove access to “illegal” copies on the Internet, it also makes it more difficult for an independent artist to get their work out there; the recording industry wins twice.

    Anon-also: Given that the burden of proof is on the accuser, it would behoove them to ensure that all disks that they are accusing you of having copied are in fact illegal copies. A failure to do so could be grounds for appeal, at the very least, and a countersuit potentially.

  15. Devil’s Advocate
    But it is not incomprehensible. That is the problem.

    We have the recording industry wanting more control of distribution, our governments embracing a surveillance society to combat terrorism, and the ISPs wanting a tiered Internet forcing content providers paying more to have preferential access to ISP customers. All of these lead to the same conclusion.

    This is in effect a perfect storm, and the scenario I outlined is exactly where we are headed. Don’t let your distaste for it cloud your judgment of its possibility. Only a few years ago people would have said that omnipresent public CCTV, xray machines at amusement parks and airport scanners that see everything under your clothes would not be politically possible. Now they are ever more seen as normal.

    Scary? Yeah. Scary as hell. incomprehensible? Absolutely not. Don’t kid yourself.

  16. FairComputerUse says:

    When Consummer will be protect to use their computers?
    I don’t care about imaginary property of the RICH over the POOR.

    I don’t care if you think that electricity can be own. Electricity is everywhere, you can’t own it.

    Digital is electricity… Light ON, Ligth OFF… 10101010110010101100101011010

    Nobody own digital technology. 101010110101010101 is a language. Nobody own language.

    When I buy 2000$ computer each 2 years, when I put 45$+/month for internet access. I pay for the use of the technology.

    Those properties are mine. I own my technology that I pay for. Now… try to criminalize my actions, try to ruins my economic life for using what I pay for… well, the biggest threat to Canada, isn’t peer-to-peer using their property, it’s the cartel that tries to bring down my own freedom to use technology and electricity.

    I don’t care about copyright. It’s not natural. Anything produce that is information can’t be “own”… Has long has I get the right to learn, I get the right to reproduce or copy. I don’t care about your illusionnary law… they broke my natural human law… Human learn by reproducing… So… Fascism corporation should not be able to ruins life of honest people using what they pay for.

    What about that Michael? Why nobody protect consumer right? Why nobody protect human right is this grand scheme to trying to legalize a way to break natural law of learning?

  17. Can and Will.
    It is incomprehensible to us of course, but *they* don’t think like us… I would put nothing past them to get what they want… and they have significant control of politicians, law makers, etc (in the US at least, and if not here yet).

    Your right that it is impossible to do reasonably, or without innocents being harmed in the process, possibly even masses and masses of innocents, the whole internet, or whole countries cut off from the net. Don’t assume however that they will stick to reasonable tactics though if their current fear tactics don’t work according to their stupid surveys.

    Currently they are still working on improving their stranglehold over lawmaking and enforcement. Once they have enough power over that, they *will* do things like pass laws that make it so computer hardware must be physically limited to run only specially signed software and only allow big manufacturers can get their software signed. They *will* do things like block access to the internet to thousands, put evil dictators in power in developing countries who support their views, etc.

    They have already shown they don’t care who gets caught in the cross fire. Don’t take them lightly. They are really dangerous.

  18. Mythbuster says:

    For file-sharing myths, go to
    If it’s “time to ground the debate in fact rather than fiction”, Mr. Geist might start by taking a long, hard look in the mirror.

    In the lead letter to the editor in today’s Toronto Star under the heading “It’s not called Pirate Bay for nothing” (, the Canadian Recording Industry Association’s General Counsel points out some myth-making in Geist’s column.

    Geist offers “facts” on the legality of downloading pirated music in Canada, based on a Federal Court ruling. But unmentioned is the real fact that key parts of the ruling were set aside on appeal. Unless one chooses to ignore a higher-level court, downloading pirated music is clearly NOT LEGAL in Canada.

    And what about Geist’s suggestion that much of the content on P2P sites could be legal? What does he think gets traded on those sites – recipes? Gardening tips?

    He who “busts” the first myth just got busted.

  19. michael geist says:

    Responding to Mythbuster
    Richard Pfohl sets up a strawman in his letter to the editor. If you read my piece, I actually argue that the Fed. Ct. case has been mistakenly viewed as legalizing everything. Support for the application of the private copying levy to personal, non-commercial downloading comes from – as the piece states – the Fed. Ct. and the Copyright Board.

    As for P2P sites, where in the piece did I say that much of the content is authorized? I merely pointed out that authorized content sits alongside unauthorized. That is consistent with the position of governmental authorities like the European Commission.


  20. Darryl Moore says:

    Followup to Mythbuster
    I would like to see Mr. Geist respond to the letter from Mr Pfohl. In particular where he says:

    “Downloading pirated music is not legal in Canada. The copyright law conclusions in the case he cites were overturned on appeal. In fact, the Federal Court of Appeal has subsequently twice ruled that the private copying regime doesn’t apply to downloads made to hard drives.”

    I am familiar with when the copyright board and the federal court both ruled that the BML applied to downloads of music (but not uploads such as on P2P), but I don’t have the references to these two decisions. My recollection is that they both determined that the levy did allow for downloading of music to any media, but the law did not allow for the levy to be applied to hard drives. Therefore the issue needed to be addressed by Parliament.

    It would be great if Michael could both offer clarity regarding how these two decisions apply common Internet use, AND perhaps identify what Richard Pfohl’s likely source is for his statement above. Finally could he identify how two learned lawyers could come to such polar opposite conclusions regarding their interpretations of the same law.

    Then I’d put the same challenge to Mr. Pfohl……

  21. Devil's Advocate says:

    Trust me, I didn’t miss a thing.

    What you’re missing is that the Internet is not a finite realm. They can try all they want to shut down ALL P2P sites. For every one they manage to eliminate, 2-5 more pop up in its place, and “darknet” participation increases.

    All they manage to do in the end is incite more and more people to intentionally contribute to the demise of their old business model.

  22. Devil's Advocate says:

    What I said was “incomprehensible” was what you basically described as the act of interfering with every other functional part of the Internet, including the providers’ ability to generate an income, in order to combat file sharing.

    That’s not exactly a constructive plan for anyone involved, including the MAFIAA.