A Lawyers View Con't
Those of you who know me know that the use to which I put my downloaded sound recordings is home or car listening for my own personal enjoyment. There could not be a clearer private use than that to which I put the music I copy to my hard drive from Internet sources.
But aren’t the Internet sources just illegal copies anyway? Isn’t that the fruit of the poisonous tree? Well, no. Not when Parliament intentionally refused to impose the requirement that the source or target be lawfully owned - a fact confirmed by the Copyright Board.
As a result, when I download music from the Internet, I am making a copy of a sound recording on an audio recording medium for my own private use. As such, section 80(1) of the Copyright Act deems my copying not to constitute an infringement of copyright.
This does not end the section 80 analysis. You see, Parliament was concerned that permitting private copying would lead to the condonation of undesirable conduct. To ensure that we all behave ourselves, the amendments to the Copyright Act included section 80(2) which reads, in part, as follows:
80(2) Subsection (1) does not apply if the act described in that subsection is done for the purpose of doing any of the following...(with the sound recording),
(a) selling or renting out...;
(b) distributing, whether or not for the purpose of trade;
(c) communicating to the public by telecommunication; or
(d) performing, or causing to be performed in public.”
Section 80(2) addresses the intent or the purpose for making the copy and excludes certain public intents or purposes from the beneficial protection provided by section 80(1). The key word to focus on in this section is “the” (pronounced “theeeee”). This section provides that if “the” purpose of making the copy is one of the listed prohibited purposes, then the protection provided by section 80(1) does not apply. I note that it doesn’t say “a” purpose. It doesn’t say “one” purpose. It says “the” purpose. As such, Parliament intended that the listed purpose must be the only purpose for making the copy, or at the very least, it must be the primary purpose for making the copy, before the section can be applied to exclude the copying from the benefits of section 80(1).
Before we take a look at the listed purposes, let me first reiterate that my primary purpose for copying sound recordings from the Internet is to listen to them. My secondary purpose would be to burn them to a compact disc so I can listen to them on my home or car stereo and to collect them. Additionally, and for this argument only, lets assume that when I download a sound recording using a file sharing software program such as Kazaa, I permit it be copied into my Shared Folder by default and not some other location. This, however, would be a tertiary purpose at best. This latter factor will be considered in the “distribution” and “communicating by telecommunication” aspects of the purpose analysis.
For those of you unfamiliar with file sharing software such as Kazaa, I note the following. The “Shared Folder” is the name of a location on my computer designated when I installed the Kazaa file sharing software. This is the location to which files are downloaded and from which files are uploaded. Kazaa only searches the Shared Folder and no other locations. On a simplistic view, if two users, say Jeff and Smith, are running Kazaa and Jeff enters a search request, the software will search Smith’s Shared Folder for the file to see if there is a match. If there is a match, Jeff will click the matched file and the software will facilitate the downloading of the file from Smith’s Shared Folder to Jeff’s Shared Folder. If I designated a different location for my downloads or if I continually removed the downloaded files from my Shared Folder such that it was clear of copyrighted material, Kazaa would never find a match by looking in my Shared Folder and no files could be uploaded from my computer. As I said, for now we will assume that I leave all files in my Shared Folder.
Now, lets look at the public purposes listed in section 80(2). The first is selling or renting the sound recording. I can honestly state that I have no interest in selling or renting the sound recordings I download. You won’t find me on the street corner hocking bootleg copies of Bat Out Of Hell or as the proprietor of SoundBuster Music Warehouse. Clearly, none of my purposes are covered by this first listed public purpose.