co-founder, Red Hat Inc.

Listen to comments by Bob Young, co-founder of Red Hat Inc.

Proposed amendments to the Copyright Act, under Bill C-60, may be offering the music industry the “best of both worlds” – getting paid for downloaded music and being able to prosecute for music file-sharing, according to a Canadian Internet advocacy group.

The bill has not made downloading, per se, illegal, according to David Fewer, legal counsel for the Canadian Internet Policy and Public Interest Clinic (CIPPIC). “If the private copying right is going to be used purposefully to compensate Canadian artists, then it will make sure downloading stays legal.”

But further distribution of a downloaded file is illegal under the Copyright Act.

The music industry is attempting to construct a model that pays it for private copying and, at the same time, allows it to sue people for using P2P networks. “You can see them [being able to] put the screws to file sharing networks,” said Fewer. “They are doing their best to make it illegal.”We are moving to a model where the best you get is a temporary permission to use software according to the DRM license attached to the downloaded song.David Fewer>Text The bill has also done nothing to bring the law into conformity with consumers’ expectations for the use of music, said Fewer, who is also a University of Ottawa Law professor. “There is nothing in this bill to protect people from using probably the most popular music devices out there. We are moving to a model where the best you get is a temporary permission to use software according to the DRM (Digital Rights Management) license attached to the downloaded song.”

The Department of Canadian Heritage’s Web site suggests any “unauthorized posting” and P2P file-sharing on the Internet will be treated as “an infringement of the copyright.” But that is a debate for another day, said Fewer, citing reasonable circumstances that may never be fully enforced.

“Excessive limitations to legitimate content would be unconstitutional at the end of the day,” said Fewer. “By legitimate I mean, content that was (personally) acquired, and the artist was compensated through the private copying legislation.”

A Department of Canadian Heritage spokesperson, who requested anonymity, said Bill C-60 does nothing more than provide for an exclusive “making available right.”

“I don’t think anybody would suggest that (Bill C-60) is excessive,” the spokesperson said. “The government announced, some time ago, it would proceed with implementing (copyright) legislation. We took the most permissive approach, not the most excessive one.”

Michael Geist, Canada Research chair for Internet and E-commerce law and University of Ottawa Law professor, believed the Canadian copyright law already provides the music industry with what it needs to sue alleged violators.

“There is always a danger in providing more rights when the current law already provides them,” Geist said. “If the user community argues they need to use (copyrighted material) in a school setting, or a library, the answer is, ‘go look at the Statute and interpret a provision to give you those powers.'”

When the music industry claimed there were uncertainties in the “making available right”, it was able to get a new provision that specifically deals with it, the law professor said.

The music industry has a significant lobby, evidenced when it trots out Canadian superstars on Parliament Hill to convince Parliamentarians of their case, according to Geist.

“The bill is overwhelmingly oriented to concerns expressed by the (music) industry,” he said. “Concerns of individual Canadians, of educators, of libraries – all of those are either completely neglected or given short shrift. But (when it comes to) issues that the recording industry brings up, there is no hesitancy to grant pages of new powers to that group.” There is always a danger in providing more rights when the current law already provides them.Michael Geist>TextAt the behest of record firms, a number of companies have engaged in copyright infraction investigations by downloading their own versions of file-sharing software, searching actively for copyright violators. So far their work has been redundant at best.

One of them was New York City-based MediaSentry, an anti-piracy and business management services company, employed by BMG Canada.

In the case of BMG versus John, Doe, Jane Doe, and All Those Persons Infringing on Copyright in the Plaintiff’s Sound Recordings, MediaSentry identified 29 IP addresses that allegedly engaged in illegal music file-sharing.

The trial court ruled in March last year that the music industry’s electronic investigations were unreliable and full of gaps, creating a real risk of exposing innocent people to litigation. Therefore, it would be “irresponsible” to order disclosure on that evidence.

That ruling protected Canadians’ online privacy rights because it required careful investigation and solid evidence of wrongdoing before disclosure would be ordered, according to CIPPIC. Last May, the Court of Appeal upheld the trial court’s decision.

“The record labels’ first application to get the identities of the first 29 Does was thrown out because (BMG) wouldn’t disclose how they (acquired them),” said Fewer. “They were actually asked on discovery and they refused to answer.”

CIPPIC suspects that BMG’s refusal to disclose was based on its use of privacy-invasive technology, emboldened by the fact that Does’ information could have been given under a security order or a confidentiality agreement.

MediaSentry was unavailable for comment.

With Bill C-60, everyday consumers’ expectations of how they can use music is now further shrouded in doubt when the feds and the Federal Appeals Court appear to be moving in opposite directions.

The technology sector is likewise voicing objections to the recently introduced bill.

The Digital Security Coalition, a group of Canadian security research organizations, specifically cited provisions prohibiting circumvention of technological protection measures and on tampering with rights management information.

It claimed these new provisions would prevent security researchers from effectively performing their work.

“(The bill) says if there is an anti-tamper mechanism, you cannot reverse engineer it. When we look at vulnerabilities in software, (we are) essentially (doing) reverse engineering. If that software somehow becomes copyrighted, it means it’s illegal for researchers to do normal work with vulnerability,” said Brian O’Higgins, CTO at Third Brigade Inc., a member of the coalition….there wasn’t a single reputable economic study done that showed how this legislation would, in fact, benefit Canadians in any way.Bob Young>Text O’ Higgins said the bill should specifically define what constitutes the prohibition so that only illegal infringing activities will be the subject of criminal liability, effectively exempting research activities from the anti-circumvention and anti-tampering rights.

Further, the bill fails to demonstrate the benefits it could bring to Canadians and Canadian technology, according to Bob Young, co-founder and director of Red Hat Inc., also a member of the coalition.

“There wasn’t a single quantitative analysis, there wasn’t a single reputable economic study done that showed how this legislation would, in fact, benefit Canadians in any way,” Young said. He added that only the “big and mostly foreign publishing companies”

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