As always, interesting and insightful posts.

I also agree with you, the Federal Court of Appeal did not make any findings with respect to copyright infringement. However, the Court of Appeal did provide some additional guidance and clarification as to what acts would or would not constitute infringement (i.e. what would be covered by the private copying exemption).

In particular, the Court of Appeal noted that “…if the users were not using an “audio recording medium”, the defence of private copying would not be available”. It also cited a previous decision wherein it ruled that a digital audio recorder (i.e. an MP3 player) is not a medium. See my own posting of today for more details (http://www.gelsing.ca/blog/?p=66).

Whether a computer hard-drive (in a p2p situation) falls under the definition of “audio recording medium”, and thus under the private copying exemption, seems to me to be an undecided issue as well - and the Court of Appeal certainly did not address that issue. Perhaps that is what Graham Henderson was aiming at.

Obviously the broad statement that “The judge has determined that uploading, downloading, it’s illegal.” was incorrect. Legality or illegality depends on the facts in each particular case (e.g. what content was uploaded or downloaded and onto what medium).

Any thoughts on the hard drive / audio recording medium issue?