I Swear – I never inhaled!

Is online music downloading to the new millennium what marijuana was to the 1960s?  It seems like nearly everyone is doing it and most have some way of legitimizing it. 

However, unlike marijuana, Canadian law has been seemingly unclear on the legality of peer-to-peer file sharing – until now.  In July of this year, Justice Tessier of the Quebec Superior Court issued a permanent injunction closing QuebecTorrent.com.  Arguably, this is the most concrete answer that Canada has had on downloading yet.  And the answer is not in favour of users.

Copyright owners and their supporters, like the Canadian Recording Industry Association, are championing the decision as a major victory for protection of copyright.  But users, like site operator Sebastien Brulotte, feel that they are on the losing end.  The losing end, according to Brulotte, of “a failing system.”[1]

If the purpose of the copyright regime is to balance the promotion of creation and dissemination of creative works with the need to reward authors of the work, can we condone online downloading?  On a strict construction of the law, it seems like downloading is infringement: copying a substantial part of a work.  And on a narrow construction of fair dealing, downloading seems not to fit in.  Even I find it hard to call listening to my iPod ‘private study.’

But, looking to the purpose of the copyright scheme and recent judicial decisions, it might be possible to view downloading in a different light.  It seems to me that what users are saying is that they are tired of paying big corporations for the right to listen to music.  As Brulotte states: “I am not doing this to harm the little artists.  It’s just that I find the big machines behind them are making too much profit.”[2]  And I can’t say I disagree.  Do I really care if I cost Tommy Mottola a couple of bucks?  As a listener, and a musician, I want to support the artists I care about, but not necessarily the record companies behind them.

Some might say that the answer lies in applying the Supreme Court’s liberal approach to user rights as set out by CCH. [3] However, I would argue that the solution needs to go further than that.  While CCH addresses the important issue of users as rights-holders in the intellectual property scheme, it doesn’t go far enough.  What needs to be addressed are the fundamental inequalities in the copyright system itself.  For example, creators of copyright rarely have the power to maintain copyright over their work. Additionally, users are thought of as nothing more than cash cows to the companies who become owners of copyright.  Undoubtedly, if any change is going to come to this system, it needs to occur through legislation.  If a new copyright act can ever get passed, I hope it is one that takes these ideas into consideration.  But until then, I might keep downloading online- but don’t worry, I promise not to inhale.

[1]Graeme Hamilton, “Court orders Quebec file-sharing site shutdown” The National Post (11 July 2008), online:                                                                                                              <http://www.nationalpost.com/news/story.html?id=648919>.


[3]CCH Canadian Limited v. Law Society of Upper Canada [2004] S.C.J. 12 [CCH].