File-sharing Decision Released

The much anticipated decision by our Federal Court of Appeal in the case of BMG Canada Inc v John Doe was released today (see pdf version). The ruling was not a win for either party but rather a divided success.

The court did uphold part of the lower court’s decision and denied CRIA’s request for the identities of the alleged file sharers, ruling that CRIA’s evidence contained shortcomings and that it was not about to issue a disclosure order in the face of such poor evidence:

“Much of the crucial evidence submitted by the plaintiffs was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted.”

However, with regard to the issue of copyright infringement, and the subsection 80(1) exemption for private copying of audio recordings, the Court of Appeal was more favourable towards CRIA’s position and had the following to say:

…the Motions Judge made a number of statements relating to what would or would not constitute infringement of copyright. …conclusions such as these should not have been made in the very preliminary stages of this action. They would require a consideration of the evidence as well as the law applicable to such evidence after it has been properly adduced.


When the Motions Judge stated that, under subsection 80(1) of the Copyright Act, R.S. 1985, c. C-42, “downloading a song for personal use does not amount to infringement,” he gave no consideration to the possible application of subsection 80(2) and the circumstances in which the defence of “private use” will not be available, such as, inter alia, where the reproduction of a musical work embodied in a sound recording onto an audio recording medium is done for the sale, rental, distribution, communication by telecommunication or performance to the public.


The Motions Judge also did not appear to consider whether all the requirements for the application of the exemption relating to personal use contained in subsection 80(1) of the Copyright Act were satisfied. For example, if the users were not using an “audio recording medium”, the defence of private copying would not be available.

Unfortunately the appellate court did not provide any further definitive conclusions on the copyright and exemption issues. However, this ruling does seem to be a clear indication by our Federal Court of Appeal that, under our current copyright laws, the subsection 80(1) exemption for the private copying of audio recordings is only available in certain circumstance and if all requirements have been met.

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