Manufacturers challenge Canadian MP3 player levy

According to Canadian copyright legislation, anyone can make a personal copy without contravening copyright - that's why the levy is collected to compensate music copyright holders ( http://cpcc.ca/english/privCopKey.htm ). The levy is collected by the Canadian Private Copying Collective (CPCC), ( http://cpcc.ca/english/index.htm ) for each blank CDR-RW sold regardless of it's use for music, data, or otherwise. Although at least $52 million (Canadian) has been collected during the years 200 thruough 2002, only $17 million (Canadian) had been distributed to copyright holders ( http://cpcc.ca/english/finHighlights.htm ). Seems to me that no new levies or increases in existing levies should have been approved until all of the previously collected levies were distributed. As well, there are restrictions as to the nationality of those who receive royalty payments from the CPCC ( http://cpcc.ca/english/generalInfo.htm ). In Canada, copy protection of music CDs seems to contravene the right to make personal copies. Maybe someone should take the companies that distribute copy protected music CDs to court and force them to either remove the protection, remove the CDs from distribution, or provide software to enable the personal copying of music CDs. There also seems to be some confusion regarding what constitutes downloading and uploading. It appears that the Canadian Recording Industry Association (CRIA) is willing to concede the right to make a private copy from a CD and, maybe, downloading for personal use, but not uploading for others to use. In peer-to-peer networking, I do not see where the uploading is occurring, the only action being carried out is downloading - I download to my computer and someone downloads the file on my computer to theirs - the copying action is always initiated by a downloader and no one uploads anything. Apparently, this aspect of peer-to-peer networking is a problem for the CRIA in pursuing their copyright interests because the Copyright Board of Canada has decided that a music recording may be obtained from anywhere and by any means, including theft of the recording. Their opinion is that the copying is not a crime but the theft of the media is, and the remedy for that theft is a criminal charge and prosecution initiated by the media owner, not the copyright holder. There is an interesting article about this in the January 2004 issue of Canadian Lawyer: "Computer and Technology Law" by Gerry Blackwell. Unfortuntely, the article is not available online. I am not a lawyer, just a private citizen who has a personal interest in my rights.

CRIA is greedy. It is CRIA who introduced this levy. Now CRIA wants to make more by not producing quality products but by sueing people. Canada Copyright Act allows me lend my music CD to my friend. Isn't this lending the "uploading"?

If I have a file stored on my computer and someone else accesses that file and causes it to be sent to them, it is downloading; I have not uploaded anything. The copyright laws in the U.S. and Canada differ. In Canada, the CRIA gave up their copyright on music recordings for the right to collect a levy to compensate them and the recording artists for personal copying of those recorded works. I think the CRIA is going to have difficulty actually convicting most people of illegal uploading material because the Copyright Board of Canada does not consider copying of music recordings to be theft, only the theft of the media is a crime. Since there is no theft of media with downloading or uploading music files, there is not contravention of any law. If uploading of music is actually illegal, the uploading must be intentional beyond a reasonable doubt. If the ability to prevent someone downloading a file through P2P software from a computer is non-obvious, a person could make the argument that they either were unaware of the download prevention 'feature' of the software or were unable to understand the method of implementation. If downloading prevention were unavailable, this might also be used to defeat a lawsuit against an individual. An individual may also be able to defeat a lawsuit on the same basis as internet service providers who declaim any responsibility for the illegal activity on their public systems conducted by others. I would like to see someone sue the CRIA for infringing the right to make personal copies of recorded music. The lawsuit would include a challenge against the use of copy prevention which prevents making personal copies on a writeable CD for which a levy has been collected. Remedies for this infringement could be: 1) Make non copy protected recordings available for free to the owners of copy protected recordings; 2) Only non copy protected recordings would be allowed to be sold in Canada. If the music recording producers choose to restrict or not distribute music recordings as a means of preventing legal personal copying then, upon summary conviction, there would be a substantial fine imposed. I am interested in any feedback about the above comments from intellectual property lawyers.