Advances in technology frequently outpace the law and so today we see more instances where the law is uncertain.

Advances in technology frequently outpace the law and so today we see more instances where the law is uncertain. At times, it seems that we must wait patiently while the courts and the legislatures amend the law or create new laws to deal with a situation. What is currently happening in the music industry is a good example.

When a range of laws that seem to apply to a new situation overlap or conflict with one another, these conflicting interests create "hard cases." In these situations, it is necessary to determine first which law should have priority. Another situation arises when the laws already in place do not deal effectively with a current problem.

Recently, the music industry has taken legal action, asking the court to force Internet Service Providers (ISP’s) to turn over the names of their customers who are allegedly swapping music over the Internet, because file sharing infringes on the Copyright Act. [Robert Thompson, Vancouver Sun, "Music pirates cases goes to court," February 14, 2021 A11] One of the service providers is challenging the move by turning to the Canadian Privacy Act, which requires all organizations to keep information about their customers private.

The creators of the copyright law likely never anticipated that music downloading and sharing would ever become as easy as it is today. They probably did not foresee that privacy issues, which have also become complex as accessibility to private information grows, may come in direct conflict with the law.

It will be up to the courts to decide which law – the Copyright Act or the Canadian Privacy Act – should be given priority. While the law is uncertain, the decisions in court challenges are often unpredictable. When we don’t know what law applies, we cannot be certain that our actions are lawful and that creates a state of uncertainty.

The Vancouver Sun article says that the lawsuits are expected to name between 30 and 40 Canadians if the music industry gets its way and ISP’s are forced to turn over the information. If the copyright law is enforced, the court’s application of the law against these Canadians may be used as examples to motivate the rest of us to refrain from sharing downloaded music. The way these cases have been dealt with in the United States suggests that the alleged infringers will likely agree to some kind of financial settlement with the music companies. Still, the law will remain uncertain and we will have to rely on some other source to guide us in our actions in this regard.

There are a number of options. The first is to make a personal moral choice based on whether we believe that it is wrong to use the creative work of another for our personal enjoyment or gain. The second more pragmatic choice might be based on the belief that the modern communication methods that make the distribution of art so easy necessitates changes in the law. This approach makes it seem reasonable to download, or even upload music, as an act of civil disobedience. The idea is that if people download music often enough, they will in fact force a change in the law.

The Lesson Plan associated with this issue proposes an alternate resolution and will hopefully provide for a stimulating classroom discussion. Before participating in the learning strategy, we recommend that students read the Backgrounder in this issue: "Downloading Music from the Internet" to acquaint themselves with the current state of the law. They might also want to investigate the Canadian Privacy Act as well at http://laws.justice.gc.ca/en/P-21/93298.html#rid-93318