Sandy Rutherford sandy at krvarr.bc.ca
Sun Feb 6 05:25:37 PST 2005

>>>>> On Sun, 6 Feb 2005 11:53:40 +0100, 
>>>>> Anthony Atkielski <atkielski.anthony at wanadoo.fr> said:

 > Sandy Rutherford writes:
 SR> Hold on a second.  Shared P-to-P directories certainly are indexed and
 SR> Finckenstein knew this.

 > Where are they indexed?  I though P-to-P was a proprietary
 > protocol--which implies that public services like Google can't index it.

Nothing proprietary about it.  It's an open standard (I don't know the
RFC off the top of my head) with all sorts of open source clients.  I
could fire up a gnutella client (pick one, there are at least a couple
on the Ports) and build up an index of a few thousand Beatles songs in
about 3 minutes.  The only reason that Google doesn't index it is that
they don't want to get sued.

 > An index internal to the P-to-P system wouldn't count, because it would
 > still be effectively visible only to people using that system ... like
 > e-mail systems.

I'm not sure what you mean here.  If you are going to call http
public, then wouldn't any other open protocol also be public?

 SR> True, but it is not the person who puts the content on a website that
 SR> is doing the copying.  It is the person who downloads it.

 > If the content came from another Web site, it was copied.  Google copies
 > content, for example, when it caches indexed Web pages.  And indeed, it
 > also downloads the content, since it has to do that to get it from the
 > original site in the first place.

 SR> If I own a CD, then it is legal for me to make as many copies as I
 SR> wish, as long as I don't distribute them.

 > And as long as the extra copies don't allow you deprive the copyright
 > owner of revenue in some way, usually. For example, if it allows you to
 > run multiple copies of a game for all the people in your office, it's
 > probably an infringement.

Let's have a look at exactly what the law is in Canada about this.

The plaintiffs in this case were EMI, Sony, ... (long list of nearly every
major recording company in Canada).  The defendants were "John Doe,
Jane Doe and all those persons who are infringing copyright in the
plaintiffs  sound recordings".   If this looks a little like a David and
Goliath situation, note the recording industry was taking this legal action
in order to force a number of ISPs to provide information about some of
their customers and in essence shoulder some of the responsibility for
any copyright infringement made by their customers.  The ISPs were
none too happy about this, and some of them do have quite deep

Finckenstein addressed 4 issues: 

1. reproduction of sound recordings by the alleged infringers

2. authorization of the reproduction of the sound recordings

3. distribution of unauthorized copies of the sound recordings to such an
  extent as to affect prejudicially the plaintiffs

4. possession of unauthorized copies,

First #1, infringement:

Section 80 (1) of the Copyright Act [of Canada] provides as follows:

80. (1) Subject to subsection (2), the act of reproducing all or any
        substantial part of (a) a musical work embodied in a sound
        recording, ... 

        onto an audio recording medium for the private
        use of the person who makes the copy does not constitute an
        infringement of the copyright in the musical work, the
        performer's performance or the sound recording.

>From this, Finckenstein concludes:

[25] Thus, downloading a song for personal use does not amount to
     infringement. See Copyright Board of Canada, Private Copying 2003-2004
     decision, 12 December 2003 at page 20.

Note that nowhere does it state that by making such a copy I must not
deprive the copyright owner of revenue.

Now #2, authorization:

Finckenstein states:

[26] No evidence was presented that the alleged infringers either
     distributed or authorized the reproduction of sound recordings. They
     merely placed personal copies into their shared directories which were
     accessible by other computer user via a P2P service. 

[27] As far as authorization is concerned, the case of CCH Canada Ltd
     v. Law Society of Canada, 2004 SCC 13, established that setting
     up the facilities that allow copying does not amount to
     authorizing infringement. I cannot see a real difference between
     a library that places a photocopy machine in a room full of
     copyrighted material and a computer user that places a personal
     copy on a shared directory linked to a P2P service. In either
     case the preconditions to copying and infringement are set up but
     the element of authorization is missing.

#3 I actually dealt with in one of my earlier posts.

     ...Before it constitutes 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...

#4 he simply threw out for lack of evidence.

I believe that your comment regarding "...as long as the extra copies
don't allow you [to] deprive the copyright owner of revenue in some
way..." is referring to the "Exclusive Right to Make Available" that
is often attached to most copyrights.  (Correct me if I am wrong.)
Internationally, that right is stipulated in the World Intellectual
Property Organization Performances and Phonograms Treaty (1996).
Canada has never signed that treaty.  The USA has.  This amounts to an
important difference.  With WTTP, I can prevent anyone from infringing
on my ability to gain income from my copyright material, by (say)
making such material "available" from other sources.  Without WTTP, by
and large the best that I can do is prevent someone else from making
money for themselves with my copyrighted material.  These are of
course generalizations, but this is the roughly idea of how I
understand that WTTP changes the situation.

Note that there are some clear parallels in this with how the GPL &
BSD licenses work.


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