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

Last Updated: May 14 2004

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 the increasing popularity of wireless networks mean that the account holder’s identity may no longer be a reliable indicator of the Internet user.

With respect to the role of the Internet intermediary, the Court held that the person from whom discovery is sought must be the "only practical source of the information" and that the applicants had not provided sufficient evidence to allow the Court to make this determination. It suggested that the operators of the KaZaA and iMesh websites were another possible source.

Privacy Outweighs Interest in Disclosure

With regard to the privacy of Internet users, the Court acknowledged the privacy interest of the individual (particularly in the context of the Internet and in light of Canada’s new federal privacy legislation [the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5]) and found that these concerns outweighed the public interest in favor of disclosure in this case, where the reliability of the evidence and the requested information was in question.

The Court noted that third parties have in the past been compelled to disclose the name of a defendant identified by an Internet protocol address and that "in no [other] case have privacy or other concerns weighing against disclosure outweighed the interest in obtaining documents and information necessary to identify the defendants," making this case the first to tip the balance in favor of Internet privacy.

P2P File Sharing Does Not Violate Copyright Law

The Court further held that a prima facie case of copyright infringement had not been proved. Citing section 80 of the Canadian Copyright Act, R.S.C. 1985, c. C.-42, the Court found that downloading a song for personal use was not an infringement.

Section 80 imposes a levy on the manufacturers and importers of blank recording media (e.g., recordable compact discs) and in exchange exempts from copyright infringement the reproduction of a musical work onto an audio recording medium for private use. The levy, which has been in place since 1999, is collected by the Canadian Private Copying Collective and redistributed to authors, performers and makers of musical works.

This so-called private copying regime was Canada’s solution to the difficult enforcement challenge posed by widespread copying of music. Although largely expected, the Court’s decision removed any doubt that the exemption applied to digital music copied from the Internet.

The Court went on, however, to consider whether uploading infringed copyright. It found that the "mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service" (so-called uploading) does not amount to reproducing, or authorizing the reproduction, or to distributing unauthorized copies under the Copyright Act.

Citing the recent decision of the Supreme Court of Canada in CCH Canada Ltd. v. Law Society of Canada (2004 SCC 13) (holding that a library does not authorize copyright infringement by providing self-service photocopiers for use by its patrons), the Court held that simply setting up facilities that allow copying does not amount to authorizing infringement. The Court held that "distribution" requires some positive act by the user (such as sending out copies or advertising that they are available for copying).

Moreover, making copies available was not a right recognized under Canadian copyright law. Finally, the Court rejected the claim of secondary infringement, finding that users lacked the necessary knowledge of infringement. In short, uploading was not an infringement of Canada’s distinctive copyright laws.

Looking Forward

CRIA has filed an appeal. The decision will therefore be considered by the Federal Court of Appeal, and may have important implications for the future of Canadian copyright law in the digital environment.

For the moment, the decision appears to have blocked the Canadian music industry’s enforcement efforts through this avenue. It may also force copyright policymakers to once again rethink the way the Copyright Act balances interests in the digital era.

Indeed, a broader Canadian copyright reform agenda for the digital era is already on the horizon. Proposals for copyright reform that were first introduced in 2001 include protection for digital rights management technologies and the expansion of copyright holders’ rights (including the addition of a "making available" right) to comply with World Intellectual Property Organization treaties (which have been signed by Canada but have yet to be implemented), as well as establishing safe harbors for ISPs that participate in enforcement efforts.

These proposals largely track reforms that have already been instituted in the United States (e.g., DMCA). However, the process of legislative reform has been slow and appears to be stalled in debate and controversy.

Also eagerly awaited is the Supreme Court of Canada’s decision (expected this summer) in the appeal of Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2002] 19 C.P.R. (4th) 289 (F.C.A) (the "Tariff 22" case). Tariff 22 was proposed by the Society of Composers, Authors and Music Publishers of Canada (SOCAN), which is the Canadian copyright collective for the public performance of musical works.

It sought to compensate copyright owners by charging ISPs a royalty for the communication of musical works over the Internet. The Canadian Copyright Board found, however, that ISPs were not liable for royalties (SOCAN Statement of Royalties, Public Performance of Musical Works 1996, 1997, 1998 (Tariff 22, Internet) (Re) (1999), 1 C.P.R. (4th) 417) and the Federal Court of Appeal largely agreed (except with respect to ISPs’ caching activities). Now under appeal to the Supreme Court, the case is expected to clarify the liability of ISPs and further define the roles and responsibilities of Internet intermediaries.


The Canadian response to the digital music conundrum is unquestionably unique. The focus to date (unlike its American counterparts) has largely been on developing a broadbased tariff and levy structure to compensate rights holders, not on strengthening enforcement tools to prevent online infringements.

In essence a form of compulsory license or tax, the initial Canadian response attempts to balance 1) the concern of the creative industries that the enforcement challenges and economic realities of P2P file sharing endanger the industry – and with it creative production; 2) the public interest in preserving the openness of the Internet and in safeguarding an Internet user’s ability to speak and associate anonymously; and 3) the interests of the Internet intermediaries that are caught in the middle.

As a testing ground for a novel solution, Canada’s experience will undoubtedly be closely watched in the United States.

Dimock Stratton Clarizio LLP represents the applicant.

Rebecca Brackley is an associate at Torys LLP in Toronto, Canada. Torys LLP represents one of the respondents (an ISP).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions