In a recent Quebec Superior Court case, Justice Tessier issued an injunction closing down the file-sharing website, QuebecTorrent.com. The site allowed for the free sharing of music and videos among users. This is a perfect example of the long standing debate between the owners/authors of copyright and the users of copyright. Although this may seem at first glance to be a victory for the owners, the precedence of this case remains to be seen due to the fact that there was no actual trial. On the eve of a hearing the defendant (Sébastien Brulotte, the site’s operator) agreed to shut the site down in exchange for the plaintiff (ADISQ) dropping their claim for damages. Therefore, the courts in Canada have yet to decide whether or not free file-sharing infringes copyright.
There are potentially large negative effects that will flow from this arguable victory for the recording industry. It will increase the already present gap between owners and users rights, despite the recent attempts by the courts to give more attention to the latter. The mere fact that the court ordered the injunction will put fear into the individual’s who operate similar sites. This is in addition to the inequalities that already exist in this type of situation. As Michael Geist mentions, the operators of free file-sharing sites have to go up against large corporations with open-ended resources. They have unlimited funds to acquire top litigators and finance legal actions. This produces a chilling effect for the operators of these sites. This is the main reason why Brulotte chose to shutdown his site, instead of battle the huge corporations in court. In response to this, many other file-sharing sites may choose to shut down as well. If not, when challenged by the recording industry in the future, they may choose the same path as Brulotte due to their lack of resources. This unequal balance perpetuates the gap between owners and users rights. This result is unfair as the courts have yet to decide whether this issue is copyright infringement at all.
The above mentioned results of this injunction will however, likely be limited to Quebec, and the rest of Canada will remain relatively untouched. Firstly, is the fact that the order was issued by the Quebec Superior Court, thus holding little sway throughout the rest of Canada. In addition, the court did not decide on the issue of copyright infringement. Should the case have proceeded to trial, the results would have likely been the same due to fact that the Quebec courts tend to follow the civilian tradition, which emphasizes owner’s rights. It is unlikely that this result would hold true should it proceed to the Supreme Court of Canada (“SCC”) . Judges from the other provinces are common law based, hence are more pro-user rights. In addition to this the SCC has shown an increased attention to user’s rights, as evidenced in CCH. This is arguably a trend that the SCC is following.