Unlawful? Innovative? Unstoppable? A comparative analysis of the potential legal liability facing P2P end-users in the United States, United Kingdom and Canada

International Journal of Law and Information Technology

Volumn 14, Issue 2, 2006, Pages 195-241

  Piasentin, Robert C ^a  

^a Intellectual Property and Technology Law   (Canada)

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EID: 33750185409     PISSN: 09670769     EISSN: 14643693     Source Type: Journal    
DOI: 10.1093/ijlit/eai028     Document Type: Article

References (263)

1. For the purposes of this paper, the term 'Internet' will be used to mean both the global network of connected computers traditionally known as the Internet as well as the world wide web and services performed over the world wide web such as Usenet, news groups, instant messaging, file transfer protocol, bulletin board systems, and email.
2. The RIAA is the administrative body in the US representing the interests of the main copyright owners in the recording industry and is made up of Time Warner, Vivendi Universal, Bertelsmann, EMI Group and Sony.
3. See e.g., J. Dudley., 'ARIA to sue net services' The Australian (25 November 2003), online at: (Australia)
4. B. Warner, 'Music trade to sue European file-sharers' Yahoo! UK & Ireland News (30 March 2004), online at: (Germany, Denmark and Italy)
5. 'French Hound Music Pirates' Wired News (30 March 2004), online at: (France)
6. 'U.K. music industry swipes at swappers' CNET News.com (25 March 2004), online at: (UK)
7. C. Chan, 'NUS and NTU fine students for illegal music downloads' The Straits Times Interactive (18 February 2004), online at: (Singapore).
8. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.).
9. For the purposes of this analysis, 'Owner' is defined to mean both the creator of a work and the owner of the copyright in that work (often a large content company) which acquired the work through an arrangement with the original creator. While these two groups can have strongly divergent interests and, in some instances, the original creator's interests are more aligned with the interests of End Users, this analysis will not address such diverging views.
10. See, e.g., 'RIAA Bags 493 More Swappers' Wired News (24 May 2004), online at: .
11. SI 2003 No. 2498, in effect as of 31 October 2003 ('Copyright Regulations').
12. Directive 2001/29/EC on copyright in the information society ('Copyright Directive').
13. This paper will concentrate on the online sharing of digital music files. Nevertheless, much of the analysis set out herein will be equally applicable to other copyrighted works susceptible to file-sharing activities such as films, television programs, books, software and photographs.
14. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th, Cir. 2001) ('Napster').
15. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. 125 S. Ct. 2764 (U.S.S.C. 2005)
16. 380 F.3d 1154 (9th Cir. 2004),
17. 259 F.Supp.2d 1029 (C.D. Calif. 2003). ('Grokster').
18. CBS Songs Ltd. v. Amstrad Consumer Electronics Plc., [1988] A.C. 1013 (HL) ('Amstrad'), decided under the predecessor legislation to the CDPA, the Copyright Act 1956.
19. Society of Composers, Authors & Music Publishers of Canada v. Canadian Association of Internet Service Providers, et al., [2004] S.C.C. 45
20. and see the Federal Court of Appeal decision at [2002] 4 F.C. 3
21. and the decision at first instance of the Canadian Copyright Board in Re Statement of Royalties to be Collected for the Performance or the Communication by Telecommunication of Musical or Dramatico-Musical Works (Tariff 22 + Transmission of Musical Works to Subscribers Via a Telecommunications Service Not Covered Under Tariff Nos. 16 or 17) (Phase 1: Legal Issues) (1999), 1 C.P.R. (4th) 417 (collectively, 'Tariff 22').
22. Private Copying 2003-2004 (Copying for Private Use (2003), 28 C.P.R. (4th) 417 (Copyright Bd. Can.), online at: (the 'Private Copying Decision').
23. CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.C. 13 ('CCH').
24. BMG Canada Inc. v. John Doe, [2005] F.C.A. 193 (F.C.A.),
25. [2004] F.C. 488 (F.C.T.D.) ('CRIA').
26. Constitution of the United States of America, Article I, Section 8.
27. 17 U.S.C., as amended ('US Act').
28. For criticism of this pro-industry slant in American copyright law, see the dissent of Justice Breyer in Eldred v. Ashcroft, 123 S.Ct. 769 at 792 (U.S.S.C. 2003)
29. and see F. MacMillan, 'The Cruel C: Copyright and Film' (2002), 24:10 E.I.P.R. 483, where the author argues that the watering down of the fair use defence in the US is limiting the development of 'diverse and vigorous' works because new creators face serious obstacles in drawing on current works for new creations.
30. See also N. Schaumann, 'Copyright Infringement and Peer-To-Peer Technology' (2002) 28 Wm. Mitchell L. Rev. 1001
31. P. Samuelson, 'Copyright and Freedom of Expression in Historical Perspective' (2003) 10 J. Intell. Prop. L. 319
32. M. Kretschmer, 'Digital Copyright: The End of an Era' (2003) 25:8 E.I.P.R. 333.
33. The applicability of the fair use defence to Internet copyright infringement has been cast into doubt by recent decisions such as Napster, supra note 10
34. UMG Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349 (S.D.N.Y. 2000) ('MP3.com')
35. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001) ('Corley')
36. and Universal City Studios, Inc. v. Reimerdes, 82 F.Supp.2d 211 (S.D.N.Y. 2000) ('Reimerdes').
37. 17 U.S.C.A. §1001 ('AHRA').
38. 17 U.S.C.A. §101 ('DPRSRA').
39. 17 & 18 U.S.C.A. ('NETA').
40. Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (U.S.S.C. 1984) ('Betamax'). This battle has been ongoing since the passage of the 1710 Copyright Act, 8 Anne c. 19, in the UK in order to protect the printing industry and has carried on as new technologies such as piano rolls, the phonograph, cable television, photography, motion pictures, sound recordings and photocopying have been developed and adopted.
41. Recording Industry Association of America v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir. 1999) ('Diamond Rio').
42. MP3.com, supra note 20.
43. Ibid. at 352.
44. Napster, supra note 10 at 1015.
45. For example, in the Netherlands, in compliance with a Dutch court order that it cease all downloads of its file-sharing software, KaZaA Holland suspended its website activities. However, while End Users could no longer download the software from KaZaA, they could get it elsewhere and, consequently, the amount of file-sharing was not significantly affected by the court decision: See J. Hu, 'Kazaa picks up the speed with update' CNET News.com (11 February 2002), online at: .
46. Grokster, supra note 11 at 1036.
47. Verizon Internet Services Inc. v. Recording Industry Association of America, Inc., 240 F.Supp.2d 24 (D.C.D.C. 2003).
48. However, on appeal, Recording Industry Association of America Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (2003), the Court of Appeal for the District of Columbia reversed the District Court's order to enforce the subpoenas. The debate over the legitimacy of the provisions of the DMCA with respect to the subpoena right and the ability of organisations like the RIAA to access information about End Users is well beyond the scope of this analysis and is mentioned here solely to identify one of the many aspects at play in the complex debate over P2P and file-sharing technology.
49. K. Dean, 'RIAA Strikes Again at Traders' Wired News (21 January 2004), online at: .
50. John Doe applications require Owners to file actions against unknown End Users and ask the court to compel the ISP to identify the End Users, after which point, provided the court makes the order, the Owners can sue the End Users directly.
51. See 'New Round of Music Industry Lawsuits Targets 754 Internet Thieves' Recording Industry Association of American Press Room (31 August 2005), online at:
52. 'Music Industry Targets 765 Internet Thieves in New Round of Lawsuits' Recording Industry Association of America Press Room (28 July 2005), online at:
53. 'Music industry files 482 more song-swapping suits' SiliconValley.com (22 June 2004), online at:
54. 'RIAA at It Again: 482 More Sued' Wired News (22 June 2004), online at: .
55. The RIAA has also had to overcome another hurdle when a court ruled that it must sue each End User directly and cannot make claims against several End Users in one suit: See 'Florida Court Sends RIAA Away' Wired News (1 April 2004), online at:
56. K. Dean, 'One File Swapper, One Lawsuit' Wired News (8 March 2004), online at: .
57. c. 48, as amended ('CDPA'). In an effort to ensure the harmonisation of UK legislation with that of the EU member states, the UK has modified the CDPA to reflect the requirements of the Copyright Directive. In particular, the Copyright Regulations, implementing the provisions of the Copyright Directive, have amended the CDPA effective as of 31 October 2003 in a way that has been compared to the changes to American copyright law made by the implementation of the DMCA. For the purposes of this analysis, the CDPA will be analysed as amended by the Copyright Regulations.
58. CDPA s-s. 24 (2).
59. CDPA s. 70.
60. CDPA ss. 296, 296ZA and 296ZB.
61. Amstrad, supra note 12 at p. 1053.
62. Ibid.
63. In the recently released case of Kabushiki Kaisha Sony Computer Entertainment Inc. et al. v. Gaynor David Ball et al. [2004] EWHC 1738 (Ch.), the Court did consider the applicability of section 296Z of the CDPA. In this case, Sony adopted a security system that qualified as a copy protection mechanism pursuant to section 296Z of the CDPA and the defendants sold, imported and advertised technology which in intended to enable or assist customers to circumvent Sony's copy-protection. Mr. Justice Laddie held that the defendants actions constituted an infringement of section 296Z and that they should therefore be liable for copyright infringement.
64. B. Warner, 'Music industry sues Net song-swappers' Yahoo.com News (7 October 2004), online at: .
65. And see T. Blass, 'Music Industry Secures First Settlements Against P2P File-Sharers in United Kingdom', (16 March 2005) 10:11 Electronic Commerce & L. Rep. 261 at 261 where the author reported that the British Phonographic Industry had agreed to settle with twenty-three file-sharers for an average settlement amount of £2,000 each End User.
66. R.S., c. C-30, as amended ('Canadian Act').
67. See Information Highway Advisory Council, Copyright and the Information Highway: Final Report of the Copyright SubCommittee (1994), which concluded that the current categories of works contained in the Canadian Act are sufficiently flexible to adequately identify new digital works and therefore the Canadian Act need not be amended.
68. Tariff 22, Copyright Board, supra note 13 at 450.
69. Tariff 22, Copyright Board, supra note 13 at 445. Note that although the Supreme Court of Canada allowed the appeal in this decision, the appeal did not consider or overrule these points of the Copyright Board's decision.
70. Private Copying Decision, supra note 14 at 19.
71. Ibid. at 20.
72. Ibid.
73. CCH, supra note 15 at para. 48.
74. Ibid. at para. 10.
75. CRIA, supra note 16.
76. On 16 February 2004, the CRIA applied to the court for an order directing various Canadian ISPs to reveal the names of the individuals connected with certain IP addresses demonstrating high levels of P2P file-sharing. See T. Hamilton, 'Herding cats and catching dolphins' Toronto Star (16 February 2004), online at:
77. CRIA, supra note 16 at para. 26.
78. CRIA, supra note 16 at para 27.
79. Compare the approach taken by the Court in CRIA to the approaches taken by courts in the United States. For example, in Religious Technology Center v. Netcom On-Line Communication Services Inc., 907 F.Supp. 1361 (1995) at 1372, the District Court for Northern California held that it would not make sense to find that Netcom or other intermediaries, whose sole involvement in an infringement is 'nothing more than setting up and operating a system that is necessary for the functioning of the Internet', should be liable for such involvement.
80. However, in Playboy Enterprises, Inc. v. Webb-world, Inc., 991 F.Supp. 543 (1997), the District Court for the Northern District of Texas held that an ISP that is unable to operate a legitimate and legal business model online should not be permitted to operate.
81. CRIA, supra note 16 at para. 28.
82. CRIA, supra note 16 at paras. 40 and 41.
83. R. Blackwell, 'Murky laws make piracy suits less likely in Canada than U.S.' The Globe and Mail (10 September 2003) B11, online at: .
84. 1996.
85. Standing Committee on Canadian Heritage, Interim Report on Copyright Reform (May 2004), online at: .
86. See also A. Pacienza, 'MPs' plan could end free music downloading' Toronto Star (13 May 2004), online at:
87. See also, Government of Canada, Canadian Heritage, Copyright Policy Branch, FAQ (5 July 2005), online at: .
88. Per Linden J.A., CCH Canadian Ltd. v. Law Society of Upper Canada, [2002] 4 F.C. 213 (F.C.A.) at 240.
89. See also K. Weatherall, 'An End to Private Communications in Copyright? The Expansion of Rights to Communicate Works to the Public: Part 2' (1999) 21:8 E.I.P.R. 398.
90. See N. Schaumann, supra note 19 at 1006 where the author argues that notwithstanding the fact that copyright legislation has been the product of negotiations among the dominant industry players, the public has never been represented at these negotiations.
91. See also R.S.R. Ku, 'The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology' (2002) 69 U. Chi. L. Rev. 263.
92. See N. Schaumann, supra note 19 at 1025
93. K Sykes, 'Towards a Public Justification of Copyright' (2003) 61 U. Toronto Fac. L. Rev. 1 at 5
94. D. Vaver, Copyright Law (Toronto: Irwin Law, 2000) at Ch. 7.
95. The fair use provision have been used to permit several otherwise infringing activities such as parodies (see Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (U.S.S.C. 1994)
96. and SunTrust Bank v. Houghton Mifflin Co., 60 U.S.P.Q. 2d 1225 (11th Cir. 2001) ('SunTrust'))
97. and the disassembly of computer programs (see Sega Enterprises v. Accolade, 977 F.2d 1510 (9th Cir. 1992)).
98. See sections 29 and 30 of the CDPA which set out that fair dealing with a work is permitted only for the purposes of research for a non-commercial purpose (section 29 (1)), private study (section 29(1C)), criticism or review (section 30(1)) or for reporting of current events (section 30(2)).
99. See sections 29 to 29.2 of the Canadian Act which state that copyright in a work is not infringed by fair dealing for the purpose of research or private study (section 29), criticism or review (section 29.1), and news reporting (section 29.2).
100. See T. Wu, 'When Code Isn't Law' (2003) 889 Va. L. Rev. 679 at 722-3, which cites a 2000 Pew Internet Project study that found that 78% of End Users who download music do not consider it to be stealing music and that 61% of End Users do not care if the music they download is copyright protected.
101. See also J. Walker and A. Sharpe, 'Digital Rights Management' (2002) 18:4 C.L.S.R. 259 at 261
102. L.A. Katz Jones, 'Is Viewing a Web Page Copyright Infringement?' (1998) 4 Appeal 60 at para. 23.
103. See also Organisation for Economic Co-operation and Development, Directorate for Science, Technology and Industry - Committee for Information, Computer and Communications Policy, Working Party on the Information Economy - Digital Broadband Content: Music (8 June 2005), online at: .
104. See L.J. Strahilevitz, 'Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks' (2003) 89 Val. L. Rev. 505 at 581-2.
105. See W.M. Pollack, 'Tuning In: The Future of Copyright Protection for Online Music in the Digital Millennium' (2000) 68 Fordham L. Rev. 2445 at 2470
106. T. Wu, supra note 65 at 722-3.
107. C.L. Webb, 'Settling in With the RIAA' The Washington Post (30 September 2003), online at: .
108. See A. Veiga, 'Report: Illegal Music Downloading Climbs' The Washington Post (15 January 2004), online at:
109. J. Borland,'RIAA lawsuits yield mixed results' CNET News.com (4 December 2003), online at: .
110. See, e.g.,: B. Warner, 'Europe's Net file-swappers unfazed by lawsuits' Yahoo! UK & Ireland News (24 May 2004), online at:
111. 'Illegal film downloads 'triple'' BBC News (7 May 2004), online at:
112. G. Dixon, 'On-line music polls send mixed messages' The Globe and Mail (4 May 2004), online at:
113. A. Jesdanun, 'Internet file-sharing on rebound: Survey' The Globe and Mail (26 April 2004), online at:
114. M. Ingram, 'Music and file-swapping can co-exist' The Globe and Mail (1 April 2004), online at:
115. J. Borland, 'File-sharing doesn't kill CD sales, study finds' The Globe and Mail (30 March 2004), online at:
116. 'Europe takes over as file-swapping central' The Houston Chronicle (16 December 2003), online at: .
117. See B. Warner, supra note 41
118. T. Blass, supra note 41.
119. A. Sullivan, 'Music-Sharing Group Proposes Pay-to-Play Plan' The Washington Post (5 February 2004), online at:
120. A. Sullivan, 'Group floats scheme to pay for online music' Yahoo! UK & Ireland News (4 December 2003), online at:
121. 'P2P Networks Want to Play Nice' Wired News (29 September 2003), online at:
122. D. McCullagh, 'P2P group seeks peace but talks tough' CNET News.com (29 September 2003), online at:
123. J. Kapica, 'Coalition to counter entertainment-industry lobby' The Globe and Mail (16 September 2003), online at: .
124. M. Kretschmer, supra note 19 at 339-40.
125. See also B.M. Schulman, 'The Song Heard Round the World: They Copyright Implications of MP3s and the Future of Digital Music' (1999) 12 Harv. J.L. & Tech. 589 at 629.
126. However, some smaller record companies have been more accommodating with respect to such sharing as they see it as a potential benefit to both their business and the success of their artists: See J. Healey, 'Some See Benefits of File Sharing', LA Times (3 June 2005) Cl, available online at:
127. and see M. Geist, 'Copyright's Convergence' Toronto Star (4 April 2005), available online at: .
128. B.M. Schulman, supra note 73 at 629.
129. See also R.S.R. Ku, supra note 60 at 306-7.
130. Some critics dispute the calculations of Owners' losses since not all are directly attributable to online file-sharing. See A. Stokes and J. Rudkin-Binks, 'Online Music: P2P Aftershocks' (2003) 14:6 Ent. L.R. 127 at 127
131. S. Hervey, 'The Future of Online Music: Labels and Artists' (2002) 15 Transnat'l Law. 279 at 283
132. M.C. Mousley, 'Peer-To-Peer Combat: The Entertainment Industry's Arsenal in Its War on Digital Piracy' (2003) 48 Vill. L. Rev. 667 at 671-4
133. K.M. Lemley, 'Protecting Consumers From Themselves: Alleviating the Market Inequalities Created by Online Copyright Infringement in the Entertainment Industry' (2003) 13 Alb. L.J. Sci. & Tech. 613
134. L.J. Strahilevitz, supra note 66 at 507
135. R. Thompson, 'Web firms to name pirates - Internet service providers will reveal music file sharers if compelled by court' The National Post (17 December 2003), online at:
136. M. Geist, 'Piercing the peer-to-peer myths: An examination of the Canadian experience' 10:4 First Monday (4 April 2005), online at:
137. and R. Thompson, 'Music sharers to face lawsuits - Recording industry to borrow U.S. tactic with 'chilling impact' for online siphoning' The National Post (16 December 2003), online at: .
138. C. Bate, 'What a Tangled World Wide Web We Weave: An Analysis of Linking under Canadian Copyright Law' (2000) 60:1 U.T. Fac. L. Rev. 21 at para. 15
139. M. Racicot, M.S. Hayes, A.R. Szibbo and P. Trudel, The Cyberspace is not a 'No Law Land': - A Study of the Issues of Liability for Content Circulating on the Internet (Industry Canada, Ottawa, 1997), online at: .
140. F. MacMillan, supra note 19 at 491
141. B.M. Schulman, supra note 73 at 629.
142. See R.S.R. Ku, supra note 60 at 303-4.
143. A. Jacover, 'I Want My MP3! Creating a Legal and Practical Scheme to Combat Copyright Infringement on Peer-to-Peer Internet Applications' (2002) 90 Geo. L.J. 2007 at 2250-1.
144. This claim may also be a disadvantage to making End Users liable as Owners will be able to maintain such tight control over their works that all uses, even fair uses (i.e., for the purposes of criticism or review, or research), will be prohibited unless End Users pay a fee.
145. These rights of integrity and paternity are moral rights to which all authors are entitled if they come from a nation that is a signatory to the Berne Convention for the Protection of Literary and Artistic Works (1886), as amended, (although the US applies these moral rights differently than all other signatories). See K. Sykes, supra note 61 at 32.
146. S. Burshtein, 'Surfing the Internet: Copyright Issues in Canada' (1997) 13 Santa Clara Computer & High Tech. L.J. 385 at 394. However, as discussed above, many creators will likely create new works regardless of the copyright protections they receive. The only parties who will benefit significantly from strict enforcement of copyright liability would likely be Owner organisations such as the RIAA.
147. See K.M. Lemley, supra note 75 at 629, where the author argues that the record industry 'is taking a non-economic, inefficient approach to the P2P problem' since they only seem to be concerned with the 'protection of their copyright rights, with a blatant disregard for the extensive costs involved'.
148. See C. Shirky, 'The RIAA Succeeds Where the Cypherpunks Failed' Clay Shirky's Writings About the Internet (17 December 2003), online at: , where the author discusses how End Users are turning to technologies such as WINW and BadBlue which provide them with the means to create 'encrypted spaces' within which they can share files in virtual anonymity. The author argues that once End Users begin using encryption or other identity-hiding technologies for certain purposes such as file-sharing, they will soon begin using such technology for all Internet transmissions creating an online cultural phenomenon analogous to Prohibition.
149. See also J. Borland, 'Covering tracks: New Piracy hope for P2P' CNET News.com (24 February 2004), available at: , where the author discusses new P2P privacy software and platforms being developed to allow End Users to share files with minimal risk of being detected.
150. See P. Brethour, 'Music firms seek names in Internet piracy battle' The Globe and Mail (13 February 2004), All, online at: .
151. See also K. Damsell, 'Net song swappers identities' seen as hard to track' The Globe and Mail (19 February 2004), online at: .
152. See P. Randle, 'When the Chips are Down: Law and Technology can Potentially Prevent the Circumvention of Copy Protection' (2002) 18:5 C.L.S.R. 314 at 315
153. J.F. deBeer, 'Canadian Copyright Law in Cyberspace: An Examination of the Copyright Act in the Context of the Internet' (2000) 63 Sask. L. Rev. 503 at para. 56. The difficulties have been amplified in the US by the Verizon appellate decision forcing Owners to use the more expensive, timely and cumbersome 'John Doe' application process to identify End Users.
154. For example, with the decline of Napster, End Users did not stop sharing files, they merely gravitated to another platform and continued the practice; see, e.g, N. Hanbridge, 'Protecting Rights Holders' Interests in the Information Society: Anti Circumvention, Threats Post Napster; and DRM' (2001) 12:8 Ent. L.R. 223 at 224.
155. R.J. Hill, 'Pirates of the 21st Century: The Threat and Promise of Digital Audio Technology on the Internet' (2000) 16 Santa Clara Computer & High Tech. L.J. 311 at 315.
156. J. Selby, 'The Legal and Economic Implications of the Digital Distribution of Music: Part 2' (2000) 11:2 Ent. L.R. 25 at 26.
157. L.A. Katz Jones, supra note 65 at para. 24.
158. Moreover, public backlash and strong anti-Owner sentiment has been significant in the wake of the RIAA's lawsuits against End Users in the US. In fact, one End User has even claimed that the RIAA is operating a racket under American racketeering legislation: K. Coughlin, 'Morris mom turns tables in music industry lawsuit' New Jersey Star-Ledger (18 February 2004), online at: .
159. In addition, in the UK, Grokster has reported the major music labels to the Office of Fair Trading claiming that they are operating as a cartel in violation of English and European competition laws: O. Gibson, Filesharers turn tables on music industry' The Guardian (15 August 2003), online at: .
160. See P. Samuelson, supra note 19 at 335.
161. And see A. Potter, 'Is Copyright Unconstitutional?' (September/October 2003) 37:2 This Magazine 22 at 25.
162. R.S. Boynton, 'The Tyranny of Copyright?' The New York Times (25 January 2004) Section 6 Page 40, online at: , where the author discusses a form of copyright dubbed 'paracopyright' by critics which prohibits both the duplication of copyrighted works and the gaining of access to such material in the first place.
163. See also K. Sykes, supra note 61 at 8, where the author compares the expansion of Owners' copyright with the attempts by the Owners of the copyright to the film 'Gone With the Wind' to prevent publication of a critical counterview of the story from the perspective of a black slave entitled 'The Wind Done Gone' (the matter went before the American Supreme Court in SunTrust, supra note 62).
164. See R.S. Boynton, supra note 92.
165. See also: Electronic Frontier Foundation, 'Unintended Consequences: Five Years under the DMCA - Version 3' (24 September 2003), online at: .
166. See P.B. Lambert, 'Copyleft, Copyright and Software IPRs: Is Contract Still King?' (2001) 23:4 E.I.P.R. 165 at 168.
167. In fact, evenjustice H. Laddie has argued, in 'Copyright Law: Perspectives From a Neighbouring Island' (1998) 2:1 I.I.P.R. 5 at 11, that 'too much copyright is bad' as we need to 'borrow and build upon what has been done before in order to create new, innovative works that truly advance thought and ideas'.
168. R. Stallman, 'Reevaluating Copyright: The Public Must Prevail' (1996) 75 Or. L. Rev. 291 at 293.
169. A. Stokes, 'Authorship, Collaboration and Copyright: A View From the United Kingdom' (2002) 13:6 Ent. L.R. 121 at 126
170. Y. Benkler, 'Coase's Penguin, or, Linux and The Nature of the Firm' (2002) 112 Yale L.J. 369 at 442.
171. See also the Creative Commons website as an example of how copyleft concepts can be put into practice at: .
172. See for example, R.S.R. Ku, supra note 60.
173. American Congressman Rick Boucher introduced the Music Owners' Listening Rights Bill in 2001, but failed to get it passed into law; see R. Massey, 'Music to Your Ears? The Ongoing Problems of Online Music Delivery' (2001) 12:3 Ent. L.R. 96 at 97.
174. See also 'Copyright, Design Rights and other Related Rights - News Items in Brief' (21 March 2002) 6.3:18 IP & IT Law, which discusses a proposal in Denmark to enact a statute which legalises the copying of digital online music or related files, provided such copying is for personal use only and not done over a P2P network.
175. D. McCullagh, 'Share 'True Crime,' do the time' CNET News.com (12 November 2003), online at: .
176. D. McGuire, 'Senate Bill Targets Internet Pirates' The Washington Post (13 November 2003), online at: .
177. Grokster, supra note 11 at 1046.
178. An interesting alternative proposed by Simon Olswang is for an 'Accessright' system to replace the current copyright regime as a means to control access to content, rather than use of content. Such a system may become more relevant as the use of copy-protection and related digital rights management systems becomes more prevalent online. S. Olswang, 'Accessright: An Evolutionary Path for Copyright into the Digital Era' (1995) 17:5 E.I.P.R. 215.
179. See T. Roda, 'Combatting Piracy' (2003) 7:2 Copyright & New Media L. Newsletter.
180. See A. Jacover, supra note 79 at 2226-7
181. and W.M. Pollack, supra note 67 at 2482.
182. See, e.g., L. Theriault, 'Copyright is Worth Saving ... from government legislators', (Spring 2004) Innovate Magazine 12, online at: .
183. Standing Committee on Canadian Heritage, supra note 58 at 5.
184. But see M. Geist, 'Copyright reform needs a balanced approach' Toronto Star (14 June 2004), online at:
185. For the purposes of this analysis, DRMS refers to all copy-protection technologies generally.
186. See C. Sellers, 'Digital Rights Management Systems: Recent European Issues' (2003) 14:1 Ent. L.R. 5 at 6
187. C. Craig and R. Graham, 'Rights Management in the Digital World' (2003) 19:5 C.L.S.R. 356 at 358.
188. See K.M. Lemley, supra note 75 at 631-2 for a discussion of public key encryption
189. W.M. Pollack, supra note 67 at 2451 for a discussion of 'digital envelope' encryption.
190. See S. Hervey, supra note 75 at 283
191. and J. Selby, supra note 89 at 27 for discussions of digital water-marking.
192. A. Colangelo, 'Copyright Infringement in the Internet Era: The Challenge of MP3s' (2002) 39:4 Alta. L. Rev. 891 at para. 52.
193. See also M. Stefik and A. Silverman, 'The Bit and the Pendulum: Balancing the Interests of Stakeholders in Digital Publishing' (1999) 16 No. 1 Computer Law. 1
194. and R.A. Reese, 'Will Merging Access Controls and Rights Controls Undermine the Structure of Anticircumvention Law?' (2003) 18 Berkeley Tech. L.J. 619, for discussions on how encryption, watermarking and other DRMS can be used to create 'trusted systems' or secure systems which will only transfer data to other systems which can be 'trusted'. Thus, if an End User tries to download a file or access a work but has not paid a license fee or made his system otherwise trustworthy, the file or work will be unavailable.
195. See C. Sellers, supra note 107 at 6, where the author discusses how, in April 2003, IBM introduced its electronic media management DRMS as a means of protecting digital music and video, text, images, PDF and e-book files from unauthorised file-sharing online. Sony also has plans to unveil new CD technology in Germany which will allow End Users to make copies of CDs for personal use but will prevent them from making copies of the songs on file-sharing sites, as reported in: 'Sony's User-Friendly Copy Block' Wired News (10 November 2003), online at: .
196. See also Reuters, 'BMG Cracks Piracy Whip' Wired News (31 May 2005), online at: which discusses new anti-piracy DRMS that Sony BMG Music Entertainment has been taking to prevent unauthorised copying of CDs.
197. See C. Sellers, supra note 107.
198. A good example of the failure of DRMS is the Secure Digital Music Initiative ('SDMI') launched by the RIAA and some of the largest players in the music industry in an attempt to develop a standardised system for identifying digital files of recordings. Upon the completion of a trial standard, the SDMI consortium invited hackers to try to crack the code, offering a reward to any who succeeded. Several hackers and organisations then proceeded to crack the code within a very short time frame. Consequently, effective as of 18 May 2001, the SDMI went on 'hiatus' announcing that it intended to 're-assess technological advances at some later date'. See SDMI's website at .
199. See also R. Massey, supra note 98
200. and R.J. Hill, supra note 88.
201. See P. Randle, supra note 86 at 315.
202. See also J. Walker and A. Sharpe, supra note 65 at 261-2.
203. See P. Samuelson, supra note 19.
204. See R.S.R. Ku, supra note 60 at 274
205. and L. Lessig, Code and Other Laws of Cyberspace (Basic Books, 1999). At more of an extreme, John Parry Barlow, former Grateful Dead musician, co-founder of the Electronic Freedom Foundation, and activist against the extension of copyright protections, argues that in addition to the use, potential privacy and free expression implications, '[t]oday's digital rights management can easily become tomorrow's political rights management. The same system that we are increasingly putting in place allowing the record industry to survey your hard disk would allow the government to survey your hard disk with a different purpose', as quoted in M. LaMonica, 'Debating digital media's future' CNET News.com (18 September 2003), online at: .
206. Article 6(4) of the Copyright Directive obligates member states to take appropriate measures to ensure that any exceptions or limitations provided for in national law for the benefit of End Users are made available to such End Users by Owners notwithstanding the use of DRMS. However, section 296ZE of the CDPA, which enacts Article 6(4) of the Copyright Directive, requires End Users who are unable to access works under a legitimate exception to 'issue a notice of complaint to the Secretary of State'. Upon receipt of such a complaint, the Secretary of State may make various orders. Arguably few, if any, End Users will actually issue such a notice. Consequently, the effectiveness of this provision and its compliance with the Copyright Directive obligations are questionable.
207. See M. Kretschmer, supra note 19 at 337.
208. See M. Mousley, supra note 75 at 690.
209. The imposition of a royalty for the sale of licensed copyrighted works is also in use in the US and UK.
210. For a detailed analysis of the economic justifications and criticisms of collecting societies, see M. Kretschmer, 'The Failure of Property Rules in Collective Administration: Rethinking Copyright Societies as Regulatory Instruments' (2002) 24:3 E.I.P.R. 126.
211. For an interesting discussion on the merits of collecting societies, see A. Jacover, supra note 79 at 2250-3.
212. See also M. Conradi, 'Liability of an ISP for Allowing Access to File Sharing Networks' (2003) 19:4 C.L.S.R. 289 at 358.
213. See M.B. Rutner, 'The ASCAP Licensing Model and the Internet: A Potential Solution to High-Tech Copyright Infringement' (1998) 39 B.C. L. Rev. 1061 for a discussion of how this option could be implemented and applied.
214. A Canadian organisation representing songwriters and music publishers presented this option to the Supreme Court of Canada in the Tariff 22 debate: See J. Borland, 'Should ISP subscribers pay for P2P?' CNET News.com (4 December 2003), online at: .
215. See L.J. Strahilevitz, supra note 66 at 588.
216. As was proposed by Bell Canada in September 2003; see D. McCullagh, 'Cyberpiracy north of the border' CNET News.com (27 October 2003), online at: .
217. See M. LaMonica, supra note 116.
218. The levy on MP3 players could equal about CDN$25 per unit sold; see T. Hamilton, 'MP3 Players hit with new tax' Toronto Star (13 December 2003), online at:
219. See Canadian Private Copying Collective [2004] F.C.A. 424 at para. 133.
220. For a good discussion of the administration of the Canadian tariff system, see D. Vaver, supra note 61 at Chapter 7.
221. See B.M. Schulman, supra note 73 at 628-9.
222. See C. Craig and R. Graham, supra note 107 at 358.
223. For a general review of several of the collecting societies in the US, Canada and Europe, see 'Copyright Collectives and Digital Licensing' (2000) 4:3 Copyright & New Media L. Newsletter.
224. See M.P.M. Taylor, 'The Nature of the Infringement Problem in the Audio Fixation Industry' (1993) 15:7 E.I.P.R. 255 at 258.
225. See, for example, J. Walker and A. Sharpe, supra note 65 at 261
226. and L.P. Loren, 'Untangling the Web of Music Copyrights' (2003) 53 Case W. Res. L. Rev. 673 at 676.
227. See Apple's iTunes website at www.itunes.com. Apple claims that there have been more than 50 million downloads of songs from its site; see 'Apple: ITunes will debut in Europe this year' CNET News.com (16 April 2004), online at: .
228. See R. Massey, 'Major Rumbling in Online Music Delivery' (2001) 12:2 Ent. L.R. 63 at 64.
229. See M.C. Mousley, supra note 75 at 693.
230. See J. Schwartz, 'When Free Isn't Really Free' The New York Times (23 November 2003) Section 3 Page 1, online at: .
231. See M.C. Mousley, supra note 75 at 692.
232. See N. Koss, 'The Digital Music Dilemma: Protecting Copyright in the Age of Peer-To-Peer File Sharing' (2003) 5 Vand. J. Ent. L. & Prac. 94 at 97.
233. Owners have been offering extras with CDs to a much greater extent of late as many CDs are now enhanced thereby allowing purchasers to access special websites or secret tracks, or the CDs are sold with DVDs including videos, interviews or concert footage, or original video games: See 'Sony's User-Friendly Copy Block', supra note 111.
234. Tracks on iTunes' new European site will cost £0.79 in the UK and €0.99 in France and Germany. See 'Apple launches iTunes in France, Germany, UK SiliconValley.com (15 June 2004), online at:
235. and see A. Doland, 'Napster, iTunes Eye Europe, Issues Await' eWeek Enterprise News & Review (28 January 2004) online at: . Microsoft has also entered into an arrangement with On Demand Distribution to offer digital music throughout Europe from all five of the major music labels for prices starting at £0.75 or €0.99 per track
236. see C. Boggis, 'Pirates of the airwaves' (October 2003) In Brief 10 at 13. Moreover, Napster and Apple's iTunes recently launched their services in the UK:
237. see B. Warner, 'Napster beats iTunes to Europe with UK launch' Quote.com (20 May 2004), online at: .
238. See J. Selby, supra note 89 at 29.
239. For example, the proposed Virgin Music download site at
240. For example, see the Apple iTunes site (www.itunes.com), the new Coca Cola branded music site (www.mycokemusic.com), or the new Wal-Mart branded site (http://musicdownloads.walmart.com). Alternatively, Sony has teamed up with McDonald's in the US to offer customers who buy Big Mac meals at McDonald's an access code which gives the customer one free music download at Sony's Connect () music store: see 'McDonald's: Would you like a song with that?' CNET News.com (3 June 2004), online at: .
241. See A. Stokes and J. Rudkin-Binks, supra note 75 at 130-1 which discusses several developments regarding potential mergers or acquisitions between content and technology companies as well as the increase in number of legitimate music sites in 2003.
242. See also S. Hervey, supra note 75 at 284-5.
243. For example, www.mycokemusic.com offers British End Users various options for listening to music. End Users can stream a track one time for one pence or download a track for 80 to 99 pence. In addition, End Users are permitted to listen to the first thirty seconds of a track for free. See M.C. Mousley, supra note 75 at 692.
244. See N. Koss, supra note 137 at 97.
245. For various options on this theme, see J. Selby, supra note 89 at 29
246. A. Stokes and J. Rudkin-Binks, supra note 75 at 131
247. and M. Kretschmer, supra note 19 at 334.
248. See M.C. Mousley, supra note 75 at 693.
249. Stephen King published one chapter at a time of certain works on his website, www.stephenking.com, and requested that payments of between US$1 and US$2 per chapter be made voluntarily (the price increased for later chapters). He made it clear that if he did not receive payments for at least 75% of the downloads of the work, he would not complete it. For his short story 'Riding the Bullet', he received the requisite payments and the work became the most famous short story of the decade: see R.S.R. Ku, supra note 60 at 310.
250. However, with his novel 'The Plant', only 46% of readers paid after the fifth installment thereby prompting King to shelve the project to the frustration of many of the readers who had paid up to US$7 to read what had become an unfinished story: See M.J. Rose, 'Stephen King's 'Plant' Uprooted' Wired News (28 November 2000), online at:
251. J. Katz, 'Stephen King's Net Horror Story', Slashdot (4 December 2000), online at: .
252. End Users who download a digital song are given the opportunity to 'tip' the artist. However, Espra (http://espra.net), one of the sites which used tipping, seems to no longer operate, and Snarfzilla (http:// snarfzilla.sourceforge.net), another site that used tipping, is not much used: See R.S.R. Ku, supra note 60 at 310.
253. See S. Theimer, 'Valanti Predicts Movies Online by 2005' The Washington Post (20 November 2003), online at:
254. A. Stokes and J. Rudkin-Binks, supra note 75 at 129.
255. See A. Stokes and J. Rudkin Binks, supra note 75 at 130
256. M.C. Mousley, supra note 75 at 691.
257. See A. Sullivan (5 February 2004), supra note 72.
258. For example, see the steps taken by the University of Florida with the implementation of the 'ICARUS' system or the University of California - Berkeley's imposition of limits on the number of downloads permitted over the university's network ('University software knocks swappers offline' The Mercury News (21 November 2003), online at SiliconValley.com ) or the Massachusetts Institute of Technology's 'Library Access to Music' program ('Students develop file-swap alternative' CNN.com (27 October 2003), online at: ).
259. Some commentators are sceptical of Canada's approach and doubt whether the legislation and system can adequately address these issues; see A. Colangelo, supra note 110 at para. 38.
260. Other commentators have even taken the extreme view that in order to 'contain piracy, we must prevent new technologies from emerging' by 'criminalizing software that carries the potential of mass distribution of copyrighted works': K.M. Lemley, supra note 75 at 638. Such an approach would be counterproductive as innovation and technological creations would be stifled for the sake of increased profits for a small and already arguably wealthy segment of society.
261. In Canada, a group calling itself the 'Balanced Copyright Coalition', whose members include the Canadian Association of Internet Providers, Canadian Association of Broadcasters, Canadian Advanced Technology Alliance, Bell Canada and TELUS Corporation, among others, has formed in an effort to counterbalance the strength of Owner lobbies: See J. Kapica, supra note 72.
262. M. Geist, 'Music licensing would be viable for all' Toronto Star (8 March 2004), online at:
263. Ibid.