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Why The Pirate Bay Decision Does Not Mean Canada Needs Copyright Reform

By Michael Geist

In the wake of this morning's Pirate Bay decision, the Canadian Recording Industry Association is unsurprisingly continuing its lobby efforts by sending out messages to MPs and media that the case is evidence that Canada must update its copyright laws.  It is important to set the record straight - today's decision does not provide any evidence of the need for Canadian copyright reform.  In fact, if CRIA's goal is to address a potential Canadian Pirate Bay, it likely already has all the laws it needs.  Rather, the claims that C-61 style reforms are urgently needed is simply a matter of bait and switch since the failed C-61 (modeled on the U.S. DMCA) did not meaningfully address liability for torrent search site like the Pirate Bay.

There are three key points to keep in mind in this regard. 

First, the Pirate Bay case revolved primarily around the liability of its co-founders for authorizing others to infringe copyright (the co-founders were not accused of storing, uploading, or downloading infringing files themselves).  Canada already has copyright laws that address authorizing infringement.  In the landmark CCH case, the Court ruled that:

'Authorize' means to 'sanction, approve and countenance'.  Countenance in the context of authorizing copyright infringement must be understood in its strongest dictionary meaning, namely, '[g]ive approval to; sanction, permit; favour, encourage." Authorization is a question of fact that depends on the circumstances of each particular case and can be inferred from acts that are less than direct and positive, including a sufficient degree of indifference. owever, a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright.  Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement.
 
In other words, the court says that there is presumption of legality, but that can be rebutted.  In a case like the Pirate Bay, it is certainly possible that the presumption could be rebutted and liability accrue for authorization.  Indeed, the settlement of the Quebec Torrent case (the site shut down in the face of a lawsuit) shows that torrent sites that knowingly permit, sanction or approve infringement may face liability themselves.  While IsoHunt has sued CRIA arguing that it is operating lawfully, that is not a statement of the law -  only a court claim.

Second, Canadian copyright law has criminal remedies much like those found in Sweden.  Section 42 of the Act provides for the possibility of a fine of up to a million dollars or up to five years in jail.  Moreover, the civil remedies provide for potential damages into the millions.  The Pirate Bay decision does not show that we need to strengthen criminal copyright laws since our laws already contain criminal provisions.

So, Canada already has laws to address the Pirate Bay and penalties that are similar to what is found in Sweden.  This brings me to the third point.  C-61 did not address issues like torrent search sites.  Instead, the bill provided anti-circumvention protection (legal protection for digital locks) that targeted consumers who actually buy digital products and created a host of restrictions in the process.  CRIA can argue that C-61 is the right approach, but it can't legitimately argue that C-61 is needed to deal with a Canadian version of Pirate Bay.

Full post as published by Michael Geist on April 17, 2009 (boomark / email).