Guest blogger: Mathew Englander's update on privacy and the CRIA file sharing lawsuit

Mathew Englander (http://www.mathew-englander.ca/) recently wrote to me about the latest developments in the CRIA lawsuit appeal. With his permission, I'm including his letter and I suggest taking a look at the appeal materials he refers to:

David,

A while ago you blogged about the decision by Justice von Finckenstein
of the Federal Court (2004 FC 488) not to compel several ISPs to
release information related to the identities of their subscribers
alleged to have infringed copyright by file-sharing
(pipeda.blogspot.com/2004/04/privacy-aspects-of-matter-of-bmg.html).

You may wish to run an update as the decision is under appeal to the
Federal Court of Appeal. I have been reading the factums at CIPPIC's
web site
(http://www.cippic.ca/en/projects-cases/file-sharing-lawsuits/document-archives.html).
The central issue on appeal is whether a plaintiff in a John Doe
lawsuit needs to establish a "prima facie case" or just a "bona fide
case" before an innocent third party is compelled to release
information about the identity of the defendant.

This may seem like a dry legal distinction, but it has serious
implications for privacy. The "prima facie" standard (which Justice von
Finckenstein adopted as the first criterion of five; see paras. 13-14
of his decision) is stricter. As I understand it, it means that the
plaintiff must provide some acceptable evidence on each element of the
cause of action. The "bona fide" standard appears to mean that the
plaintiff need only show that it honestly believes the defendants are
liable. Having a stricter standard is more respectful of an
individual's privacy since it requires more evidence before the court
may order the individual's personal information released.

The Canadian Recording Industry Association was coordinating the legal
action for the plaintiffs. It is interesting to look at its news
releases on the matter (http://www.cria.ca/news.htm). For example, on
March 12, after the first day of the hearing before Justice von
Finckenstein, it issued a news release saying it was "confident" its
motion would be granted.

The plaintiffs' motion was dismissed because of deficient evidence.
CRIA had hired a company called MediaSentry to investigate music
piracy. MediaSentry downloaded files from 29 users of peer-to-peer
software, and came up with an IP address for each user at the time of
download. The IP address could be linked with an ISP through whois
queries, so the plaintiffs wanted the ISPs to disclose the real name,
address for service, and other information about the holder of the
account to which the particular IP address was assigned at the
particular time.

However, there was no evidence at all as to how MediaSentry came up
with the IP address of each peer-to-peer user. In addition, the
affidavits tendered by the plaintiffs were full of hearsay with no
explanation for why they did not provide affidavits from those with
direct knowledge. It seems to me that this was a big screwup by the
lawyers who prepared the motion material.

There were five ISPs named as non-party respondents to the motion:
Shaw, Rogers, Bell Canada, Telus, and Videotron. All five are
respondents on the appeal and each filed its own memorandum of fact and
law. It is particularly interesting to read the ISPs' arguments. Only
one, Videotron, is basically supportive of the plaintiffs. Bell
Canada's position is ostensibly neutral, but its arguments are strongly
opposed to the plaintiffs' appeal. The other three expressly argue that
the appeal should be dismissed.

In my view, the decision of Justice von Finckenstein is solid and it is
surprising that CRIA is even appealing it. Since these are just
intended as test cases in any event, it might be better off going back
to square one, having MediaSentry or some other company entrap some
more alleged copyright-infringers and this time developing a stronger
evidentiary base to bring to court.

Mathew Englander