Looks like the Candian Federal Court has decided in favour of the anonymous John and Jane Does in the recent file swapper case.  The Judge has determined that the following criteria must be satistified for a disinterested bystander to be compelled to aid in discovery as a third party.  In the case of the recording industry versus KaZaa users, this means that the ISPs would be releasing the confidential customer data that would map a user’s IP to his home address.

  1. the applicant must establish a prima facie case against the unknown alleged wrongdoer;
  2. the person from whom discovery is sought must be in some way involved in the matter under dispute; he must be more than an innocent bystander;
  3. the person from whom discovery is sought must be the only practical source of information available to the applicants;
  4. the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs;
  5. the public interests in favour of disclosure must outweigh the legitimate privacy concerns.

The judge ruled that the affidavit filed by MediaSentry was largely hearsay.  This might be a result of faulty lawyering by the recording industry however - they may be able to succeed with more detailed records.  The judge touches on this:

At the very least, Mr. Millin should have identified the employees who conducted the work….

As well, it turns out that MediaSentry didn’t even listen to the files downloaded by the sharers.  The court wisely ruled that it can’t trust this information without more detail of how it was determined.

It looks like the recording industry will have to prove knowledge on the part of the sharers that they are, indeed, sharing the files willingly and show that they are “advertising” the fact that they are sharing the works.  Passive sharing of files seems to be safer than actively transmitting files.  These arguments together eliminate the first criteria.

Criteria 2 is easily proven to exist, 3 is found not to exist and 4 is determined to be an expensive operation.

Criteria 5 is a balance between justice and privacy.  It makes sense that privacy can be overruled to a certain extent to allow civil and criminal matters to proceed. 

The recording industry lost this round, but they may win the next with more rigorous documentation.  The case may also hinge on whether the sharers are actively engaging in distribution of copyrighted works or not.  We’ll see next time how this works out.

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