“Yes. Warner Bros. is working with Digital Rights Corp on a test ISP/subscriber notification program to many ISPs that are not participating in the Copyright Alert System,” a Warner spokesman told TorrentFreak.

[....] “The notices give consumers an opportunity to settle the identified infringement for a very nominal sum of $20 per title infringed–not as a measure of damage, but as a concrete reminder that our content has value and as a discouragement of future unauthorized activity.”

After the initial payment, Rights Corp matched the notified (and settled) infringement with two others already on file. Since the guy had filled in his phone number, the company then called him up and asked for another $40.00 to clear his file.

But along with all the other problems mentioned by Tim back in his 2011 post, there's another major flaw in SABAM's logic. According to recent work carried out by the European Commission's Joint Research Centre, it's not even clear that the recorded music industry is being hurt by unauthorized downloads:

Perhaps surprisingly, our results present no evidence of digital music sales displacement. While we find important cross country differences in the effects of downloading on music purchases, our findings suggest a rather small complementarity between these two music consumption channels. It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

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An expert panel to the NPA, which was looking into measures to combat crimes abusing the Tor system, compiled a report on April 18 stating that blocking online communications at the discretion of site administrators will be effective in preventing such crimes. Based on the recommendation, the NPA will urge the Internet provider industry and other entities to make voluntary efforts to that effect.

With help from a local developer, OpenBand apparently convinced a lot of communities to sign exclusive franchise agreements that ran for between 25 to 75 years. While users in these developments could sign up for other TV or broadband services, they still had to pay the $150 monthly association fee to OpenBand.

Complaints grew and grew over the years, with customers saying it reached the point where they stopped contacting the ISP, given their exclusive arrangement resulted in them being totally unwilling to improve service. It got so bad, some locals wound up getting a second broadband provider -- and just paid two bills for service with nothing they could do.

Last fall they decided to sue everyone, including the county Board of Supervisors, two supervisors individually, and several homeowners associations.

Saunders also argued that neither Lansdowne or Southern Walk could receive the relief they seek from the courts because the FCC order only addresses video service and not Internet or telephone, both of which the communities get from OpenBand...

"The FCC ruling, it seems so clearly directed at prohibiting exactly what is taking place here," Judge J. Harvie Wilkinson III said as OpenBand began its arguments in the Lansdowne case. "And I am beginning to get the idea that these standing questions, these ripeness questions, a lot of them are just a fog that's being thrown up [by OpenBand attorneys] to provide protection for a shell game that's going on here with all these different companies and different agreements."

Wilkinson repeated the sentiment when the discussion of the telecommunications easements owned solely by OpenBand were raised. He said it was all a part of an "evasive web" and that OpenBand appeared to be seeking "to evade the FCC exclusivity order by calling the contractual agreements…easements. It is one thing after another. The whole thing is a subterfuge."

The ISPs—industry giants AT&T, Cablevision, Comcast, Time Warner, and Verizon—will launch their versions of the CAS on different days throughout the week. Comcast is expected to be the first, on Monday.

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.

A broken record

The conversation has failed to move on. The rights holders are still insisting ISP's should perform work on their behalf instead of addressing what we have always said is the root cause of the infringements – the limited accessibility to desirable content and the discriminatory and high cost of content in Australia. Infringements are a symptom – access is the problem.

Data retention proposals

iiNet won't support any scheme that forces ISPs to retain data in order to allow for the tracking of customer behaviour and the status of any alleged infringements against them.

Collecting and retaining additional customer data at this level is inappropriate, expensive and most importantly, not our responsibility.

It's not iiNet's job to play online police

We've been over this before. The High Court spoke loud and clear in their verdict when they ruled categorically that ISPs have no obligation to protect the rights of third parties, and we're not prepared to harass our customers when the industry has no clear obligation to do so.

It's time to find a new way

We believe that timely, affordable access to legitimate content is the best option for reducing unauthorised sharing.

The Supreme Court ruled that is it unlawful to disseminate information that is restricted in accordance with Russian law, including, but not limited to, on gambling. The court further concluded that provision of access to restricted information is equal to dissemination of this information. The court thus found that a telecoms company de-facto disseminates restricted information by providing access to websites containing this information.

The court concluded that Rostelecom must take measures to technically block its clients’ access to restricted information. Following the Supreme Court’s rationale this requirement applies irrespective of the location of the servers containing such websites.

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...!

Section 114A of the bill seeks “to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.” In other words, the section makes it easier for law enforcement authorities to trace the person who has uploaded or published material posted online.

According to the amended law, however, the originators of the content are those who own, administer, and/or edit websites, blogs, and online forums. Also included in the amendment are persons who offer webhosting services or internet access. And lastly, the owner of the computer or mobile device used to publish content online is also covered under section 114A.

When the petition was ignored by the government, netizens and media groups organized an online blackout on August 14, which succeeded in mobilizing thousands of internet users. The global attention which the action generated was likely what convinced the Prime Minister to agree to have the cabinet review the controversial amendments. Although this announcement was initially welcomed by opponents of the amendments, the Cabinet ultimately upheld the amended law.

Other than barebones references from two of the four movant ISPs that these subpoenas impose “a substantial administrative burden,” the ISPs fail to present any witness or other evidentiary detail to demonstrate a burden to the Court, let alone what steps the ISPs are or could be taking to deter infringing activity on their networks to reduce any burden subpoena compliance engenders.

The plaintiff’s estimates regarding the amount of online infringing activity and the economic harm resulting from such activity is corroborated by a recent government report. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10- 423, INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS OF COUNTERFEIT AND PIRATED GOODS 23-24 (2010) (estimating that U.S. economy annually loses $58 billion, over 370,000 jobs, and $2.6 billion in tax revenue as a result of copyright infringement over the Internet) (citing Stephen E. Siwek, THE TRUE COST OF COPYRIGHT INDUSTRY PIRACY TO THE U.S. ECONOMY, Institute for Policy Innovation (IPI), IPI Center for Technology Freedom, Policy Report 189 (Oct. 2007)).

Since there is an absence of data concerning these potential effects, the net effect cannot be determined with any certainty

"The ISPs' failed legal challenge has meant yet another year of harm to British musicians and creators from illegal filesharing."

John McVay, CEO of Pact, said: "Rather than needlessly spending more time and money on further legal challenges, BT and TalkTalk now need to focus on working with rights holders and the Government in implementing the Digital Economy Act with immediate effect."

“Once again a judge has made it extremely clear that the Digital Economy Act is a fair, focused, proportionate and efficient system for consumers and the creative industry,” she added. “Rather than individuals being hauled into court, the DEA makes it possible to conduct a mass consumer education programme. BT and TalkTalk need to stop fighting and start obeying the law.”

The Film Distributors’ Association president Lord Puttnam CBE hoped the court decision would put an end to “a long chapter of uncertainty, and the DEA can now help in implementing a mass consumer education programme so that people, especially young people, can come to appreciate the damage piracy inflicts on the whole of the creative community”.

The British Video Association’s director general Lavinia Carey added: “Several other countries are adopting this measure and it would be bad for Britain’s creative industries to be left behind more forward thinking nations who are supporting their creative economies at this difficult time of transition towards increased digital consumption during this period of recession.”

The other reason we ought to fear this new initiative is that it is based on getting the private sector to act as online police, using a "non-legislative" approach:

The main objective of this project is to develop a non-legislative 'framework' that consists of general principles and best practices. The general principles will be developed through a bottom up process where the private sector will be in the lead. Through a series of workshops and conferences, the private and public sector will define their problems and try to draw up principles. These principles can be used as a guideline or gentlemen’s agreement, and can be adopted by many partners. They will describe responsibilities and concrete steps public and private partners can take to counter the illegal use of Internet.

Even though the project is being sold as a voluntary "gentlemen’s agreement", the reality is that lurking in the background is the usual implicit threat:

The covenant, the principles and the practices should be non-legislative because they will be adopted on a voluntary basis with support from the industry. It should also be possible to implement them quickly in any European Member State, or even worldwide. Nevertheless, it is possible that one of the results will be a call for better regulation by governments.

It's not even clear that "limiting terrorist use of internet" is the best way to fight terrorism. There is an argument that it would be better for as much terrorist activity as possible to take place where security agencies can keep it under close surveillance. Shutting down the more obvious sites and means of communication will simply drive terrorists deeper underground, and make it harder to monitor and thus counter them.

So once more, we have the worst of both worlds: while the rights of the general public are diminished further in the name of "combatting terrorism", the actual fight will be made more difficult.

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“KPN sees the blocking of websites as a drastic measure for which a court order is required,” KPN said in a statement, adding that innovation is needed to curb piracy.

“KPN doesn’t believe a blockade is the right solution. What is needed are robust, attractive business models that are easy to use and offer a fair deal to both producers and consumers of content.”

T-Mobile also said that it will only respond to court orders, while it emphasized the value of an open Internet.

“T-Mobile strongly supports an open Internet and is fundamentally against shutting off access to websites. Dutch law is very clear when it comes to blocking access to the Internet. T-Mobile will only respond to a court ruling, not to demands from a private party such as BREIN.”

"The basic principle of the Internet is that ISPs pass on traffic to their customers unfiltered, they are merely a gateway," says Niels Huijbregts, spokesman for XS4ALL. "The Pirate Bay website is not hosted on a Ziggo server, so Ziggo can't be held responsible for restricting access to the website. BREIN is targeting the wrong people."

“This will just give us more traffic, as always. Thanks for the free advertising,” we were told.

And he appears to be right.

A few days after the verdict was announced The Pirate Bay registered depiraatbaai.be, a new domain not covered by the court order. Today, just a few weeks later, this domain is already the 124th most-visited in Belgium, on its way to enter the top 100.

Indeed, the years of legal procedures and subsequent blackmailing are easily circumvented by registering a $15 domain.

"As ISPs can monitor the amount of power used by specific users and the sites connected to, it is possible for ISPs to pass on any details to owners of particular rights, who could then take legal action."

The first likely step, which could be just days away, will be to ask ISPs to block some of the biggest illegal websites. It is not known yet which sites – and, therefore, which ISPs will be targeted. If ISPs do not block these sites voluntarily, the BPI will ratchet up the pressure and will seek court orders – citing 97A and the MPA case – requiring them to do so.