The Canadian Recording Industry Association this week quietly filed documents in the Federal Court of Appeal that will likely shock many in the industry.  CRIA, which spent more than 15 years lobbying for the creation of the private copying levy, is now fighting to eliminate the application of the levy on the Apple iPod since it believes that the Copyright Board of Canada's recent decision to allow a proposed tariff on iPods to proceed "broadens the scope of the private copying exception to avoid making illegal file sharers liable for infringement." 

Given that CRIA's members collect millions from the private copying levy, the decision to oppose its expansion may come as a surprise.  Yet the move reflects a reality that CRIA has previously been loath to acknowledge – the Copyright Board has developed jurisprudence that provides a strong argument that downloading music on peer-to-peer networks is lawful in Canada.  Indeed, CRIA President Graham Henderson provides a roadmap for the argument in his affidavit:

"First, the Board has stated, in obiter dicta, on several occasions that the Private Copying regime legalizes copying for the private use of the person making the copy, regardless of whether the source is non-infringing or not.  Therefore, according to the Board, downloading an infringing track from the Internet is not infringing, as long as the downloaded copy is made onto an 'audio recording medium'…

Second, also in obiter dicta, the Board stated that the private copying exception in Section 80 is not conditioned on the existence of a tariff to collect royalties covering the medium onto which copies are made.

Third, in combination with the aforementioned obiter dicta in the Board's other decisions, the Decision [the iPod decision] could potentially be interpreted to allow the copying of music files from any source – whether legitimate or illegitimate – onto any type of device ordinarily used by individuals to copy music, such as personal computers…"

While Henderson and CRIA make it clear that they disagree with this interpretation, they are obviously sufficiently concerned that it reflects Canadian law that they have burned their remaining bridges with Canadian music in order to try to persuade the Federal Court of Appeal to allow them to intervene in iPod hearings.  

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