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[Sandy Rutherford]

>>>>> On Sun, 6 Feb 2005 02:56:03 +0100, 
>>>>> Anthony Atkielski <atkielski.anthony at wanadoo.fr> said:

 > Sandy Rutherford writes:
 SR> This is not so clear.  In a March 2004 decision regarding P-to-P music
 SR> sharing, Justice von Finckenstein of the Federal Court of Canada ruled
 SR> that: 
 SR> 
 SR> The mere fact of placing a copy on a shared directory in a computer
 SR> where that copy can be accessed via a P2P service does not amount to
 SR> distribution. Before it constitutes distribution, there must be a
 SR> positive act by the owner of the shared directory, such as sending out
 SR> the copies or advertising that they are available for copying.

 > Or allowing a Web site to be indexed by a search engine.

 > I'll grant that a site that is public but not linked to or indexed by
 > anyone could be assimilated with a non-public venue.

Hold on a second.  Shared P-to-P directories certainly are indexed and
Finckenstein knew this.  In his view, having a reasonable expectation
that a site would be indexed or linked to does _not_ constitute a
positive act.

 SR> In his ruling, Finckenstein pointed out that there is a parallel with
 SR> public libraries.  A public library does not infringe on copyright,
 SR> simply by having books available for loan.

 > That's not really a parallel.  Libraries loan books and in so doing move
 > content from one place to another; they do not _copy_ content.
 > Infringement involves illegal reproduction in the vast majority of cases
 > (on rare occasions it can involve unlicensed use, such as in the case of
 > unlicensed performances of theatrical works).

True, but it is not the person who puts the content on a website that
is doing the copying.  It is the person who downloads it.  If I go
into a library, borrow a book, and then copy it, it is I who have
(possibly) infringed on copyright and not the library.  I say
possibly, because I am not even sure that this is a copyright
violation in Canada.  I believe that Canadian copyright is tied more
to the act of distribution, than to the act of copying.  If I own a
CD, then it is legal for me to make as many copies as I wish, as long
as I don't distribute them.

 SR> Interestingly enough, Finckenstein also ruled that the act of
 SR> downloading copyright material from a P-to-P server also does not
 SR> infringe copyright.  As far as I know, unlimited P-to-P sharing of
 SR> copyright material is still fully legal in Canada.

 > I'm not sure that Finckenstein fully understood the issue, then.

He certainly did understand the issue, at least as it relates to
Canadian copyright law. (He is a justice of the Federal Court of
Appeals, after all.  He does know his law.) It is important to
remember that copyright and patent rights are not "God-given rights".
Like all jurisprudence, they are man-made for purely pragmatic
reasons.  It is in the best interests of society that creativity be
fostered.  Creativity is best fostered by protecting intellectual
property rights, but not doing so in a manner which overly restricts
the free-flow of ideas.  A delicate balance must be struck.  Looking
for ways to adapt the current copyright and patent laws, which were
largely devised at the time of the industrial revolution, to the
computer age is basically an exercise in pounding a square peg through
a round hole.  Finckenstein recognized that these issues should not be
decided in the courts, because they are primarily not legal issues.
They are matters of social policy, which ultimately should be decided
in Parliament.  By taking such a restrictive view of how current
copyright laws extend to electronic publication, Finckenstein was
challenging Parliament to throw out the current laws and rethink the
entire matter from scratch.  In my view, this is a good approach.

Sandy