Canadian Court Denies Motions to Compel ISPs to Disclose Identities of Peer to Peer File Swappers

Published in MLRC MediaLawLetter, April 2004

On March 31, 2004, Ontario Federal Court Justice von Finckenstein denied motions to compel Internet service providers (ISPs) to reveal the identities of 29 alleged "uploaders" of copyrighted musical works using popular peer-to-peer .(P2P) file-sharing programs, such as KaZaA. BMG Canada v. John Doe, No. T-292-04 (Ont. Fed. Ct.).

In addition to finding that the evidence lacked the required reliability to justify invading the privacy of Internet users, the Court held that the applicant music companies had failed to make out a prima facie case of copyright infringement under Canadian law.

Names of Alleged Infringers Requested

The Canadian Recording Industry Association (CRIA) - following the lead of its U.S. counterpart, the Recording Industry Association of America (RIAA) - took the first step in its strategy to file suit against individual users of P2P file-sharing programs by attempting to obtain from ISPs the names of alleged infringers.

CRIA invoked the traditional procedure of seeking a court order for disclosure (sometimes called a Norwich order) - not having the benefit of the streamlined subpoena procedure under section 512(h) of the Digital Millennium Copyright Act, 17 U.S.C. (DMCA) (a procedure that was, until the recent decision in Recording Industry Ass'n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir.2003), widely used by the RIAA). The Electronic Frontier Foundation and the Canadian Internet Policy and Public Interest Clinic intervened in the case.

Evidence Lacked Reliability

In denying the applicant's motion to compel the ISPs to divulge the names of Internet users, the Court called into question the reliability of the applicant's evidence on several fronts.

First, the Court found that there was insufficient evidence linking the pseudonyms of the P2P users with the Internet protocol addresses that ISPs were in turn asked to link to account holders. The Court also noted that the ISPs were limited in their ability to reliably retrieve older data from their systems. The Court acknowledged that retrieving data was not easy and that the costs of doing this should be borne by the party making the request.

Similarly, the Court found that while ISPs may be able to generate the names of account holders, this would not necessarily reveal the actual computer users responsible for file sharing. The widespread practice of sharing an Internet connection and...