We recently covered the latest attempt by Voltage Pictures to identify alleged Canadian filesharers in order to launch one of their infamous copyright shakedown schemes. Rather than target one of the big ISPs, they made a list of thousands of IP addresses from TekSavvy, an independent service provider, and sought a court order forcing them to identify the users behind the addresses. TekSavvy has been admirably transparent and communicative about the issue, and was clear from the start that it would not release any information without a court order. On Monday, the court granted TekSavvy's request to adjourn until January so it could notify its customers and give them a chance to oppose the motion that would reveal their identities. However, TekSavvy has also been very clear about one thing: it won't be opposing the motion itself, and it's left a lot of customers and commentators wondering why.
Nobody would expect TekSavvy to personally defend each customer against accusations of infringement, and the company's statements so far seem to hinge on that idea as the reason it's not going to oppose Voltage's request in court. On the surface that might seem reasonable, but in fact it sidesteps the real issue: TekSavvy may not be responsible for its users' defence against infringement lawsuits, but it is responsible for protecting its users' privacy—and there are plenty of serious privacy issues with Voltage's motion that need to be addressed long before we get to the point of determining the actual guilt or innocence of individual users.
This isn't hypothetical. Howard Knopf explains the key legal comparison in this case—a 2004 attempt by BMG to get information on a mere 29 users from much larger ISPs. Not only did the ISPs oppose the motion, they won, and established important precedents in doing so.
Despite Teksavvy’s openness concerning this issue, questions are still bound to arise why Teksavvy is not actually opposing this disclosure motion in 2012, as Shaw and Telus actively and successfully did in 2004, with Bell and Rogers taking a similar if less vigorous position. In this regard, it is interesting to compare Voltage’s
material with the BMG et al material filed in 2004 that was rejected by the Federal Court and Federal Court of Appeal at that time as inadequate in a very comparable situation, as a result of which we now have clear
and binding appellate case law.
The law about all of this was clearly laid out by the Federal Court of Appeal in 2005. Here is a very balanced discussion of this presented by myself and one of my worthy opponents in that case, Richard Naiberg. The key criteria for potential success in a disclosure motion such as this is that there must be substantial, admissible, non-hearsay, and reliable evidence in the form of affidavit material and at least a bona fide case.
A key intervener in that case was the Canadian Internet Policy & Public Interest Clinic, which fought hard for the privacy of the Doe defendants. CIPPIC also sent a letter to the court regarding this recent Voltage motion, requesting the adjournment that was granted Monday. That letter focused heavily on the factors established in the BMG case, and when you run through those factors, you begin to see why this is a privacy issue before it's an infringement issue. The court's disclosure test was designed to ensure that customer info isn't released without a solid reason—and perhaps the most important requirement is that there be a bona fide claim, further clarified as a true intent to pursue further action based on the disclosure, and no ulterior motive. When it comes to a shakedown operation like Voltage's, everyone knows that the exact opposite is true, and CIPPIC's letter (pdf) cites the company's past (while explaining precisely what a "copyright troll" is) to make this point:
On the question of bona fides, the plaintiff has identified literally thousands of John Does
and Jane Does. BMG v. Doe involved only 29 potential defendants. It is worth asking the
plaintiff if it holds a bond fide intent to bring 2000 actions for copyright infringement. As
will be noted below, this plaintiff has a track record in the United States of demanding
subscriber data of internet service providers for the purposes of demanding exorbitant
payments to settle under threat of litigation, with no bona fide intent to prosecute such
litigation. In CIPPIC’s view, this scheme does not meet the requirements of the need to
show a bona fide claim, but instead is evidence of another purpose.
the applicant has in the past engaged in similar mass litigation in the
United States. The applicant’s business model for such litigation has earned it the label of
“copyright troll”. Trolls’ business model involves alleging that consumers are liable for
copyright infringement, and demanding compensation under threat of litigation. The
compensation demanded invariably grossly exceeds the damages a troll might expect if
the troll were to actually litigate and obtain judgement and a damages award. However,
such compensation does not typically exceed the cost to a defendant of defending the
action. Enough defendants will choose to pay rather than defend to make the scheme
profitable to the troll. The troll typically never litigates through to a judgement, since the
costs of doing so would render the scheme as a whole less profitable. The troll’s business
model, thus, is an arbitrage game, exploiting judicial resources to leverage defendants’
fear and the costs of defending into a revenue stream. And, of course, no part of these
revenues finds its way back to the court to offset costs borne by the taxpayer as the
judiciary plays its inadvertent role in this scheme. In CIPPIC’s view, such a purpose is
improper and bars the applicant from establishing a bona fide claim.
Not only that, as the letter notes, Voltage's motion accuses the users of commercial infringement—a much higher bar carrying much higher potential fines. This accusation seems completely unsupported by the evidence (which amounts to little more than "these IP addresses were connected to BitTorrent swarms") and even less likely to qualify as a bona fide claim.
Since we've been seeing lots and lots and lots of US judges slamming copyright trolling operations and dumping their cases, there's clearly an opportunity here for Canadian courts to smack down this practice before it gets off the ground—or re-assert their earlier smackdown, anyway. But the only way that can happen is if someone actually opposes Voltage's request (CIPPIC's letter was just supporting a delay). TekSavvy is still insisting it won't be them; CIPPIC might seem the logical candidate, and I'm sure they'll do what they can, but it's unclear how much they will be allowed to intervene if none of the directly-involved parties put up a fight. The only other option is the customers themselves, once TekSavvy notifies them—but, of course, the whole point of this scheme in the first place is that most people can't afford to take on a complex legal battle.
So will Voltage waltz right past the clearly-established test for the disclosure of private information? If TekSavvy doesn't do anything, they just might.