While there is still a significant question as to whether TekSavvy should be taking a more direct role (as well as some pushback on that idea), today's events represent a victory for TekSavvy's customers, who now have someone (CIPPIC) taking up their cause, or at least trying to.

It also looks like the judge understands the complexity, and the gravity, of the situation. Apparently the judge has been asking questions about the specifics of what an IP address represents, the impact of Canada's new copyright legislation, and the overall implications of the case. The judge also suggested that this will not be resolved in a single day.

This case still has a long way to go, but it looks like we may be headed towards a full-scale test case for copyright trolling practices in Canada, with a judge who seeks a clear understanding of the issues at play. That, for now, is a good place to be.

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.

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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.

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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.

We are frankly puzzled by the approach that Voltage has taken. It seems contrary to the government’s intent with copyright reform, which was to discourage file sharing lawsuits against individuals, while still protecting copyright holders’ rights. The manner and the timing of this action also seems unusual given that the government recently created a roadmap for addressing file sharing and copyright infringement within its legislation. Its starting point is a notification system to subscribers to discourage infringement without immediate threats of lawsuits or disclosure of their personal information. That system is not yet finalized though. In light of these factors, Voltage’s actions seem odd to us.

It appears to us that a notice period is essential, especially in cases where large privacy disclosures may be involved. Without this notice, a customer could be the subject of a lawsuit and not even know about it. Surely this is in part why the government is seeking to enact such notice provisions in the policy.

At this point there are many unanswered questions. How does Voltage intend to proceed? How will the courts rule if customers should retain legal counsel? Under what conditions might the court order the disclosure of customer information? If Voltage is successful, how many more notices will Canadian ISPs receive? Is there a limit to what the court will allow?