The U.S. recording industry is shifting away from suing file sharers and toward working out deals with internet service providers that could see downloaders have their access cut off, but the issue in Canada is still muddy because of a lack of clear copyright law.

The Recording Industry Association of America on Friday said it was changing its approach to one it hopes will be more effective in persuading people to stop downloading music illegally. More than 35,000 Americans have been sued since 2003, but the percentage of internet users who pirate music has stayed steady at around 20 per cent, according to the Wall Street Journal.

Under the new approach, the RIAA will send an e-mail to an ISP when it believes one of the service provider's customers is downloading music illegally. Depending on the deal set up with the service provider, customers will receive warnings, possibly followed by a slow-down in their connection speed and ultimately a cancellation of their access.

The RIAA said it has agreements in principle with some U.S. ISPs, but it didn't name them. Service providers have in the past been reluctant to act as copyright police, but some are becoming more co-operative with the entertainment industry as they seek to sign more deals for content with those same companies.

The move would follow similar developments in other countries including France and Britain, where ISPs are working with the entertainment industry to curtail illegal downloading.

Canadian ISPs have so far successfully lobbied the federal government against forcing them to intervene in downloading. The government's controversial Bill C-61 copyright reform legislation, introduced in the summer, contained a "safe harbour" provision that would have let ISPs off the hook for what their customers downloaded. Bill C-61, however, died when the fall election was called. 

Lawsuits against music downloaders have not materialized in Canada to the same level as in the United States. The Canadian Recording Industry Association in 2004 sued 29 unnamed alleged file-sharers but the case was defeated when the Federal Court of Canada ruled that making digital music files available to others for download did not constitute copyright infringement.

Some lawyers and internet law experts also argue that a private copying tax on blank media is intended to compensate artists for revenue lost to file-sharing.

The Canadian Recording Industry Association, however, says the levy was never intended to legalize file-sharing. CRIA president Graham Henderson said it is not OK for a person to walk into a store, physically steal a CD, make copies of it and then have those copies considered legal. File-sharing of digital copies is the same thing, he asserted.

"[The levy] is one of the muddiest of the muddy waterers. I don't see it as having a role in legalizing it at all, but it certainly is one of the many excuses floated for why it's OK to do this in Canada," Henderson said. "You can't take something in an unauthorized way, copy it and then that copy is somehow legal."

University of Ottawa internet law professor Michael Geist said the analogy is irrelevant because the courts have been clear that the original source of the copy doesn't matter.

"It's certainly an arguable case that some of the personal non-commercial downloading that takes place falls within the ambit of the levy," he said.

CRIA has focused on copyright law

Henderson said the CRIA has had a policy of not suing downloaders since he took the group's reins four years ago, despite people such as Barenaked Ladies frontman Steven Page warning that it was considering doing so. The CRIA has instead focused on getting copyright law straightened out so that it would be clear what people could and couldn't do with their music, he said.

Geist said the industry group has avoided lawsuits because of the negative publicity the 2004 case attracted. He also said that moves to involve ISPs as copyright cops in several countries have been hugely controversial and could backfire on both the industry and the service providers.

"It's viewed by many as a draconian step and we've seen push back against it in many countries," he said. "The ISPs that do that risk a serious backlash from their customers."

Henderson applauded the RIAA's move toward negotiating with ISPs and would like to do the same in Canada, but said the copyright situation needs to be sorted out first.

"Then we could give Canadians a fair chance to obey the law because, as I've said many, many times, I believe Canadians are fundamentally law abiding," he said. "The problem in Canada is we don't have laws to abide by. People are confused."

The Conservatives promised to reintroduce copyright reform legislation as part of their election platform, but those plans were put on hold with the eruption of parliamentary turmoil in November. Although the CRIA praised Bill C-61 for its tough stance against file-sharing, the legislation was widely opposed by numerous other industry groups as being too heavily skewed toward copyright owners.

Geist said the only way the music industry can combat file-sharing is to provide a compelling legal alternative.

"The industry chose to sue rather than innovate," he said. "They're starting to come around, but it's pretty late in the game."