Keep calm but don't carry on. The message sent by a Federal Court ruling Thursday is clear: Peer-to-peer file sharing of copyrighted material on software platforms like BitTorrent is illegal in Canada, and leaves infringers open to being sued. On a practical level, however, most Canadians – particularly those who lack the resources to fight a court case – can breathe easier. The decision likely won't unleash a flood of litigation against individual users like the one we saw in the U.S. in the mid-2000s; the entertainment industry has moved on, and to a certain extent, so have we.
In the ruling, the court ordered internet provider TekSavvy Solutions Inc. to disclose the names of roughly 2,000 suspected copyright infringers to Voltage Pictures LLC, the makers of the Oscar-winning 2008 movie The Hurt Locker. The defendants in the suit, however, were not TekSavvy or its owners, but the 2,000 or so John and Jane Does whose computers were allegedly used for file-sharing – Voltage was asking the court to order TekSavvy to release the real names of the users whose accounts corresponded to the infringing computers' internet addresses. Up until recently, getting a court to order the release of those names was exceedingly hard.
The Canadian arms of international music and movie companies have long protested the difficulty of getting internet providers to hand over the names of users whose accounts have been linked to piracy. The test for trumping the right of internet providers like TekSavvy to keep the names of their clients private was established in a 2006 case launched by BMG Canada. In that case, the bar was set higher than in other countries, requiring more substantial evidence that the person whose name is on the account is the same person who allegedly infringed the copyright. As a result, entertainment companies largely haven't been able to bring suits in Canada against individuals, like the notorious case of a Minnesota-based mother of four who was found liable for sharing 24 songs on a file sharing service and who was ordered to pay $222,000 (U.S.).
Unfortunately, many Canadians are under the misapprehension that, even if copyright-infringing file sharing wasn't legal, they were unlikely to get busted for doing it. That state of affairs couldn't last, and the decision by Justice Kevin Aalto of the Federal Court makes it clear that pirates can't use privacy rights as a shield to avoid being prosecuted. It does, however, strike a careful balance between allowing copyright holders to protect their rights, and preventing so-called "copyright trolls" from scaring the bejeezus out of everyone who may end up in their dragnet, rightly or wrongly.
Justice Aalto's decision references cases in the U.K. and the U.S. where pornographic movie studios would request the names of users whose accounts were linked to illegal file sharing, then send misleading letters demanding settlements (which, due to the embarrassment of being publicly accused of downloading pornography, most people simply paid up to make it go away – whether or not they actually did it). There's less embarrassment in being accused of BitTorrenting a Hollywood movie, but the style of potential coercion is similar – many people receiving a letter accusing them of infringing copyright may be unfairly pressured to pay up by the cost of fighting a lawsuit, regardless of their guilt or innocence.
The upshot of the ruling is that companies like Voltage can ask for the names of and ultimately notify suspected individual file-sharers that they may be sued, so long as the companies get court approval for the letter, to make sure that it doesn't misinform innocent users, or unduly coerce them into paying. And the upshot of that requirement is that Voltage isn't very likely to seek court approval for 2,000 individual notifications, since with Canada's recent copyright reforms limiting damages in such cases to $5,000, Voltage's legal costs of sending 2,000 mean-sounding letters could well outweigh the potential revenue.
Truth is, the ruling would have come too late for the content industry even if it had been decided more strongly in their favour. Most entertainment companies seem to have accepted that going after individual users for sharing a few movies or albums online is a failed strategy. Suing working-class mothers of four for more money than they'll see in their lifetimes has had far less of an impact on piracy than the rise of services like Spotify and Netflix; the industry has grudgingly accepted the fact that their best defence against piracy is making it easy for people to watch the movies and listen to the music they want to, anywhere, anytime, at a reasonable cost, without infringing copyright.