View source for BMG Canada Inc v Doe

{{Infobox Court Case
| name               = BMG Canada Inc. v. John Doe
| court              = [[Federal Court of Canada]], [[Federal Court of Appeal (Canada)| Federal Court of Appeal]]
| image              = 
| imagesize          = 
| imagelink          = 
| imagealt           = 
| caption            = 
| full name          = 
| date decided       = 
| citations          = {{Cite CanLII|source=fct|year=2004|num=488}} aff'd {{Cite CanLII|source=fca|year=2005|num=193}}
| transcripts        = 
| judges             = [[Konrad von Finckenstein|von Finckenstein J.]], Federal Court; Richard C.J., Noël and Sexton JJ.A., Court of Appeal
| prior actions      = 
| subsequent actions = 
| opinions           = 
| keywords           = Copyright, Infringement
}}
'''''BMG Canada Inc. v. John Doe''''', {{Cite CanLII|source=fct|year=2004|num=488}} aff'd {{Cite CanLII|source=fca|year=2005|num=193}}, is an important Canadian [[copyright]] law, file-sharing, and privacy case, where both the [[Federal Court of Canada]] and the [[Federal Court of Appeal (Canada)|Federal Court of Appeal]] refused to allow the [[Canadian Recording Industry Association]] (CRIA) and several major record labels to obtain the subscriber information of [[Internet service provider]] (ISP) customers alleged to have been infringing copyright.

==Background==
CRIA made an application under the Rules of the Federal Court to compel 5 ISPs ([[Bell Canada]], [[Rogers Communications]], [[Shaw Communications]], [[Telus]], and [[Vidéotron]]) to divulge the account information of 29 [[IP address]]es that were believed to have downloaded approximately 1,000 copyrighted music files through the [[KaZaA]] and [[iMesh]] file-sharing software.  Shaw strongly opposed the motion, citing customer privacy and technical difficulties.  Telus, Bell and Rogers also expressed varying levels of disagreement, also on privacy grounds.  Vidéotron offered no opposition: they chose not to appear at the court hearing, instead stating their support of the CRIA's position and readiness to provide the requested information as soon as a court order was issued.

==Federal Court decision==
The judgment of the Federal Court was delivered 31 March 2004 in [[Toronto]], [[Ontario]].

Justice von Finckenstein held that the ISP could not be compelled to divulge their user information. To be able to compel the ISPs to divulge personal information that was protected by both [[PIPEDA]] and user agreements with the ISPs, von Finckenstein ruled that several conditions must be met:

:''(1) applicant must establish a prima facie case against the unknown alleged wrongdoer; (2) person from whom discovery is sought must be more than an innocent bystander; (3) that person must be only practical information source; (4) said person must be reasonably compensated for expenses of compliance with the discovery order; and (5) the public interests favouring disclosure must outweigh legitimate privacy concerns.<ref>2004 FC 488 (para. 3)</ref>''

He noted that there was no evidence that the files being downloaded were illegal.<ref>2004 FC 488 (para. 18)</ref> He held that under the Copyright Act, downloading a song for personal use was not illegal.<ref>2004 FC 488 (para 18)</ref> CRIA had only been able show that the users made copies available on their shared drives. CRIA also failed to show that there was no alternative to gain the requested information. <ref>2004 FC 488 (para. 31)</ref> Von Finckenstein concluded that the plaintiff was unable to show that the importance of the disclosure outweighed the importance of the right to privacy, and denied the request for discovery.

==Federal Court of Appeal decision==
The judgment of the Federal Court of Appeal was delivered 19 May 2005, at Toronto, Ontario.

Justice Sexton, for the court, upheld the core finding of the previous case, that the identities should not be revealed to the plaintiffs.  He found that merely placing files in a shared directory does not constitute the "authorization" needed to infringe on the distribution right.<ref>2005 FCA 193 (para. 15)</ref> He modified the test required in this kind of case and also said that, given the preliminary stage of the proceedings, the lower court should not have commented on whether the alleged file-sharing was actually copyright infringement. <ref>2005 FCA 193 (para. 46-54)</ref>  However, Justice Sexton only held that exceptions to the private right of copying were not considered, not that downloading a song in and of itself was a violation.<ref>2005 FCA 193 (para. 50)</ref>

== See also ==
*[[Odex's actions against file-sharing]]

==References==
{{reflist}}

==External links==
*[http://reports.fja.gc.ca/en/2005/2005fca193/2005fca193.html Federal Court of Appeal judgment]
*[http://www.canlii.org/ca/cas/fct/2004/2004fc488.html Federal Court judgment]
*[http://www.cippic.ca/en/projects-cases/file-sharing-lawsuits/document-archives.html Statement of Claim, affidavits, written representations, and other court documents]
*[http://www.cippic.ca/en/projects-cases/file-sharing-lawsuits/ Canadian Internet Policy and Public Interest Clinic page about the case]

[[Category:2004 in case law]]
[[Category:2005 in case law]]
[[Category:2004 in Canada]]
[[Category:2005 in Canada]]
[[Category:Canadian copyright case law]]
[[Category:Canadian articles needing infoboxes]]
[[Category:Bertelsmann]]