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Want to download pop songs in MP3 format with impunity and without fear of prosecution? Move to Canada. The refuge for Vietnam War draft dodgers of the 1970s is now an asylum for intellectual-property pirates. A federal court judge in Canada this week ruled that swapping songs on the Internet for "personal use" does not violate copyright law or infringe on the rights of artists like J. Lo, Britney Spears or Elton John. "Downloading a song for personal use does not amount to infringement," Justice Konrad von Finckenstein of the Federal Court of Canada declared in the decision released this week.
Comparisons may be drawn between Canada and the United States. Canada did not go to war with Viet Nam, nor for that matter did it join the United States in its fruitless search for weapons of mass destruction. If American were wanted to go on a scavenger hunt for such weapons, there was no need to leave home to find them.
I suggest that this article in its rush to judge ignores important aspects of Canadian copyright law - Section 80(1) of the Copyright Act for one. Copying an audio recording for private is permissible. Because of section 80(1) of the Copyright Act, copyright infringement regarding P2P in Canada is about uploading, not downloading.
With the statute in mind, the issue question becomes what is distribution and does P2P fit the bill. Canada's Supreme Court has recently given the answer to the first question. Setting up the facilities that allow copying does not amount to authorizing copyright infringement. To understand why, see the Court's decision in CCH Canadian Ltd. v. Law Society of Upper Canada, which is available online at http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html. The answer to the second question found in Canadian Recording Industry Association decision is that for P2P to amount to distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. The author might dispute the Federal Court's view that distribution involves a positive act or might simply calling for legislative reform, but before the call for legislative reform is shouted too loudly, consider this. Felix Oberholzer of the Harvard Business School and Koleman Strumpf of UNC Chapel Hill have found that "Downloads have an effect on sales which is statistically indistinguishable from zero." Their article can be found at http://www.unc.edu/%7ecigar/papers/FileSharing_March2004.pdf.
Twice right, eh? It may not be so bad to be a Canadian after all.