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LEGAL REPORT: INTELLECTUAL PROPERTY that would be adequate if we used them." A stumbling block in the way of pros- ecution is the lack of resources available to law enforcement authorities and the difficulty of getting them interested in tak- ing on such cases. There is also the legacy of a 2005 case involving BMG, in which a judge caused a stir on the Internet by sug- gesting that file sharing is legal in Canada, though the Federal Court of Appeal later ruled the judge should not have expressed an opinion on this. The case, which alleged illegal downloading of copyrighted mate- rial, fell apart, according to Wells, "not because the laws were inadequate, but because the evidence was inadequate." He says the problem was that rights holders could not legally obtain the evidence they needed without persuading the RCMP to get search warrants — requiring an extremely time-consuming and expensive kind of investigation. In any event, many people are skepti- Back row: Associates Ryan Evans, Michal Niemkiewicz, Geoff Mowatt | Front row: Partners Angela Furlanetto, David Reive, Ron Dimock Your pharmaceutical litigation team The pharmaceutical litigation team at Dimock Stratton has the experience and technical expertise to handle the most complex matters. Case in point: Dimock Stratton's efforts and innovative approach recently took a major generic further than any had come before in its effort to enter the lucrative statin market. This was a major reason cited by Managing Intellectual Property when they named Dimock Stratton Canadian Patent Contentious Firm of the Year 2008. When you or your clients need results based on experience, look no further than the team at Dimock Stratton. cal about the value or effectiveness of going after file-sharing sites in court. Not only does every effort to close one down seem to lead to the emergence of a new one, prosecutions tend to push file shar- ing further underground, using more anonymous and more elusive technolo- gies, says Daniel Gervais, a University of Ottawa law professor. He maintains a better approach is outlined in the pro- posals of the Songwriters Association of Canada. The SAC proposes a scheme whereby music file sharing would be accepted as legal and copyright holders could receive royalties through a system funded by levies imposed on Internet users collected by their Internet ser- vice providers. Originally proposed two years ago, the SAC scheme was widely attacked as being unworkable and con- trary to international law because it involved imposing licences on rights holders. This version allows rights hold- ers to opt out and also envisages that individual users could opt out. Gervais says the proposal should be attractive to ISPs since it offers them an oppor- tunity to offer services to subscribers who would no longer have to consume huge swaths of bandwidth by using bit torrent sites. Sookman says the SAC proposal is impractical, will not get the support of rights holders and has "no legs what- soever." Pfohl at CRIA says the pro- posal still violates international treaties and would cannibalize existing business models for online sales of music and other digital content. Pfohl says he acknowledges it will Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com 42 JUNE 2009 www. C ANADIAN Law ye rmag.com ntitled-3 1 2/10/09 9:18:46 AM take more than successful prosecutions such as the Pirate Bay case to ensure creators get their fare share from digital downloads. But he says stronger copy- right laws in Canada will provide the industry with legal certainty — "So people know what the rules are and there is the certainty to allow new busi- nesses to get off the ground." Currently, he says, people interested in starting new online businesses for digital music sales in Canada are finding that inves- tors are reluctant to put up any capital because of the widespread belief that "people just steal music in Canada."