If TekSavvy Won't Oppose Copyright Trolls Who Want Customer Info, Who Will?

from the privacy-before-piracy dept

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.

Filed Under: , , ,
Companies: teksavvy, voltage

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “If TekSavvy Won't Oppose Copyright Trolls Who Want Customer Info, Who Will?”

Subscribe: RSS Leave a comment
69 Comments
ChrisB (profile) says:

Canadian privacy laws

Canada’s privacy laws are pretty crazy. For example, some witnesses to a plane crash dragged some survives out of the burning plane. Later, when they wanted to reach out and make contact with the survivors, they were told that no info could be given out about the survivors because of privacy laws.

People went ballistic about Google “accidently” recording info from unsecured wifi. Now some company wants to sue people for downloading a movie they could go rent for $1.50, and all of our privacy laws go out the window?

Killer_Tofu (profile) says:

Public Image

This is rather interesting. Just recently in the slashdot article about iiNet over in Australia walking away from the copyright groups, people were wishing we had our own iiNet’s all over the world. A bunch of those tech savvy users on slashdot pointed out that TekSavvy was a good one to be with for Canada. If they are looking to destroy the good image they have with the techies, this would easily do it in a single move (or failure to move as it is). And the thing is, those who were praising TekSavvy are the exact ones who would notice this if TekSavvy doesn’t stand up. With the precedent already set in Canada, it can’t really be that costly to fight the initial request, can it?

dave blevins (profile) says:

Re: Copyright the worst idea?

Well, the whole concept of royality for entertainers is right up there too — only enriches the publishers not the entertainers themselves — the idea of being paid multiple times for each performance is outlandish: a doctor should get paid for his “performance” of birthing a person every person’s birthday?

Berenerd (profile) says:

Re: Why is it up to teksavvy to protect us?

“This sounds like you want your ISP to fight for your right to pirate.”

Actually we want the ISP to hold to their privacy policies that they showed us when we signed up for our service. Not to roll over and die because someone claims they have proof but can’t show us right now…so Trust them.

Teresa (profile) says:

Re: Re: Why is it up to teksavvy to protect us?

Nowhere in the privacy policy does it say they have to fight a potential court order on behalf of their customers. Privacy policy does essentially say that if there is a court order, they have to follow it.

I don’t get why people seem to think Teksavvy should they pick up the bill to defend their customers from the suit?

bob (profile) says:

Re: Re: Re: Why is it up to teksavvy to protect us?

Exactly. But you’re talking the echo chamber full of people who think they’re owed everything for free. Of course they think that everyone out there is just chomping at the bit to defend their file sharing fun.

Frankly I think that the ISPs have every incentive to undermine these heavy consumers that just push up their bandwidth costs and expose them to law enforcement pressure.

Teresa (profile) says:

Meanwhile, just last month Distributel & 3web (2 other major indie ISPs here in Canada) didn’t do what Teksavvy has done (ie fought to push back the order so that they could inform affected customers, and advise them to get legal counsel), and just rolled over and handed over the subscriber info.

They did NOT fight the order in any manner whatsoever, and will now be seeing settlement letters in their near future.

http://copyrightenforcement.ca/wp-content/uploads/2012/11/NGN-Order-Montreal.pdf

I think its good on Teksavvy that they gave customers time to get their own lawyers anonymously so as to dispute being named in one of these suits.

Anonymous Coward says:

until there is clear laws written that forbid this type of extortion and then clear laws that sort out the whole mess and screw up that governments, particularly the US, have made of copyright and infringement, this will continue. as for Teksavvy, they deserve to lose so many customers now (not just those that will be ob the receiving end of a Voltage Pictures letter) that they have to close!

Josef Anvil (profile) says:

Infringing???

“Now some company wants to sue people for downloading a movie they could go rent for $1.50, and all of our privacy laws go out the window?”

This brings up an odd situation that happens quite frequently. If I have a Netflix or LoveFilm account and I “pirate” a copy of a film that is available on those services, am I infringing?

I’ve already paid for the service, so in theory, the content creators have been compensated. But one day I was too lazy to look through Netflix and just downloaded the movie. Why should I be targeted by a troll if I’ve already paid?

AC (profile) says:

Check your facts, please...

From someone who was actually present at the court hearing this past Monday:

After explaining to the court at Monday?s hearing how TSI has been acting in good faith by cooperating as best it can with Voltage, their counsel ? Nicholas McHaffie of Stikeman Elliott – surprised the room by stating they could not continue to take their original position as a neutral party and let the motion go unopposed.

… and the judge ended up granting an adjournment.

Source:

http://www.davidellis.ca/watching-voltage-and-teksavvy-duke-it-out-in-federal-court/

Another AC says:

Re: Check your facts, please...

Close, you needed to keep reading the next 3 paragraphs:

McHaffie made it very clear the only grounds for opposing the motion was trying to ensure potential defendants got adequate time to be notified.

SO they only opposed it to let their customers have more time, not on privacy or any other grounds. So I believe Leigh’s original analysis is accurate.

Anonymous Coward says:

Another way is to target troll lawyers directly. I don’t mean “target” as in “targeted killing,” but there are plenty of ways to embarrass and harass them: they are people made of flesh and blood, have families and neighbors and hence vulnerable to emotional damage.

Enough is enough. You guys, fightcopyrighttrolls and others are preoccupied by “not stooping on their level” while these shitheads continue raping students and seniors. I’m not as picky as you and want trolls to test their own medicine, to inconvenience their lives as much as I can. My immediate target is “my” troll Lipscum and a sweet pair from Malibu (who celebrate their wedding anniversary tomorrow).

bob (profile) says:

Face it-- file sharers are bad customers

Uh, let’s see. They clog the lines and use much more than the average bandwidth. If you ask them to pay more, they start waving around half-baked legal philosophy and theories about “artificial scarcity” or “censorship”. They parse the contracts and jump on any mention of the word “unlimited” and turn it into some right to endless bandwidth for themselves and their children and grandchildren. Sometimes they attract the attention of pot smoking law professors who have extra time on their hands thanks to the ABA cartel and these law professors proceed to write endless briefs full of arcane footnotes that egg on the anonymous file sharing leeches.

Why would anyone want a file sharer as a customer? Why would anyone want a customer devoted to a philosophy of not pulling their own weight and freeloading off of other people?

John Fenderson (profile) says:

Re: Face it-- file sharers are bad customers

They parse the contracts and jump on any mention of the word “unlimited” and turn it into some right to endless bandwidth for themselves and their children and grandchildren.

If by “parse” you mean “take the overt and obvious claim seriously,” then you’re right. Why would you think it’s wrong to object to not getting what you were promised when you bought it?

Why would anyone want a file sharer as a customer? Why would anyone want a customer devoted to a philosophy of not pulling their own weight and freeloading off of other people?

And yet again, you are ignoring the fact that filesharers are not necessarily pirates, and that not only filesharers are affected by this stuff anyway.

You seem to think that the only real opposition to the abuse of copyright law is from pirates. Most pirates, pretty much by definition, don’t care about the abuse of copyright law.

Milton Freewater says:

Re: Face it-- file sharers are bad customers

“They parse the contracts and jump on any mention of the word “unlimited” and turn it into some right to endless bandwidth for themselves.”

The use of the word unlimited in a contract does mean endless bandwidth according to the service provider.

Again, someone intends to attack file-sharing and ends up attacking the idea of expecting a contract to be honored.

Less people would file-share if trolls and shills could somehow, someway figure out away to argue against file-sharing without also arguing against the most basic of consumer rights. Bob, you’re encouraging piracy of the worst kind. Content creators beg you to stop.

bob (profile) says:

Re: Re: Face it-- file sharers are bad customers

No, I understand perfectly well that the customer can expect the contract to be honored. I hate with ISPs claim something is “unlimited”. I’m just pointing out that the ISPs have no reason to like these consumers of hefty bandwidth and they’re happy to do anything to scare them off.

The average ISP owner I know says that they’re forced to offer “unlimited” because that’s what the customer expects. So they try other passive aggressive techniques to limit hefty consumption. Bandwidth is too expensive to offer truly unlimited service.

ebilrawkscientist (profile) says:

I love the smell of buring trolls in the morning.

Victor oscar lima tango alpha golf echo – Golf Tango Foxtrot Oscar – Delta India Alpha Foxtrot.
Lima echo alpha victor echo – Charlie alpha november alpha delta alpha – November alpha oscar.
Alpha november delta – Tango alpha kilo echo – Yankee oscar uniform romeo – Echo x-ray tango oscar romeo tango india oscar november – Sierra charlie hotel echo mike echo – Whiskey india tango hotel – Yankee oscar uniform. Tango Yankee Victor Mike.

The only good troll is a fireballed voltage-troll!

Laroquod (profile) says:

These people aren't even guilty

For the record, I am among those accused and I am totally innocent. I have not downloaded any of the films on Voltage’s list nor would — they all sound perfectly awful or I had already heard they were awful. Nobody else I know who visits would have any visits in those movies either. Nobody torrented any of those movies in this house — it just simply never happened.

And now I may have to try to prove this in court, because there are roving extortionists in the world and TekSavvy refuses to stand up to them?? Excuse me THIS BLOWS and this’ll be the absolute end for me and TekSavvy if they do not eventually step up here and do the right thing for their customers.

John says:

Re: These people aren't even guilty

I’m in the same boat as you Laroquod. I’ve never heard of or seen any of these movies made by Voltage, in fact I don’t even watch movies in general, I have no interest in them really. Nobody in my household knows how to torrent except for me, and I simply did NOT download any of these Voltage films, so I’m absolutely confused about the whole situation

Laroquod (profile) says:

Re: Re: These people aren't even guilty

John, check the email from TekSavvy again. I found it rather confusing; I thought it was telling me I was on the list. On closer reading, it turns out that it was telling me that I *may* be on the list and that I was supposed to log into the TekSavvy site under ‘My World’ in order to find out whether I am actually on the list. When I did that, turns out I was in the clear. I should have read more carefully, but maybe TekSavvy’s communication policy in this regard wasn’t the best way to go about it.

I hope you are not on the list either but even if you are, you still are probably innocent and don’t deserve to be exposed, IMO.

Laroquod (profile) says:

Re: These people aren't even guilty

Turns out that I am not on the list of those accused. TekSavvy sent out a rather blanket information email about the lawsuit which I misinterpreted as an inclusion of my user account in the danger zone. I complained and their customer service notifying me that I am not on the list was fairly prompt — however, the fact that I don’t feel personally in jeopardy any longer does not change at all my concern over how TekSavvy is handling this because I am still their customer (for now) and as a personal with a dynamically rotating IP address that *frequently* dynamically rotates (sometimes every 10 minutes!), I could still end up innocently on the wrong list and therefore this is still highly relevant to my interests and the interests of all TekSavvy users.

John says:

Re: Re: Re: These people aren't even guilty

Alright, so I re-read the email, and I guess I made the same assumption you did, thinking I was on the list. Logging into MyWorld confirms that I am in fact not on the list, as there doesn’t seem to be any notification or information there regarding this issue, as should be 🙂

Thanks for clearing that up Laroquod!

ChukuMuku says:

Why is it up to teksavvy to protect us?

Very simple.
Because ISP is the one who gives you the possibility to surf the internet.Teksavvy taking our money and only they should give the answers.If they don’t like it,they should filter all forbidden content to their users.If Teksavvy giving me the permission to enter the web so they are the one responsible for the results.I didn’t kill anyone in the web ,I just use the available web content in front of me.If you don’t like it disable it .As simple as it is.

ChukuMuku says:

Why is it up to teksavvy to protect us?

Very simple.
Because ISP is the one who gives you the possibility to surf the internet.Teksavvy taking our money and only they should give the answers.If they don’t like it,they should filter all forbidden content to their users.If Teksavvy giving me the permission to enter the web so they are the one responsible for the results.I didn’t kill anyone in the web ,I just use the available web content in front of me.If you don’t like it disable it .As simple as it is.

David Collier-Brown (profile) says:

Re: Why is it up to teksavvy to protect us?

Oh dear, do you really want Tek Savvy to be responsible for everything you do on-line?
Imagine if Bell Telephone was responsible for everything you did vial the telephone? They’d have to monitor every call, and cut off anything that sounded like it might break the law. If they didn’t, they’d be an accessory to the crime.

If you wanted to discuss a peaceful protest against, for example, gang rape in India, you would have to convince the Bell censor that you wouldn’t be likely to do anything illegal in a fit of emotion. If you couldn’t, the censor would have to cut you off and report you to the police as possibly proposing to break a law.

–dave

Phil Osopher says:

File Share users are not thiefs

Take a few simple facts to start

1) Nothing has actually been stolen
Example if you went to a hardware store measured and analyzed a tool right down to the metal content then using your own resources you made an exact copy for your own personal use (not for sale) is that stealing.

There is not a single hardware company that could get a judge to do more then laugh if they tried to sue the person for even the cost of the tool let alone charging several thousand time more for it.

2) Instead of these movie companies changing the way they sell their product to protect their right to make a profit they go after people maliciously. But they still spend millions on movies knowing full well people will share it because they dont want the hassle of an oversized CD/DVD taking up precious room in their house.

How much room would several thousand movies in DVD format take up and how long before they get scratched and are useless.

The movie companies have choosen to stick with outdated technology and sales tactics. But it doenst mean we should be stuck with their stupidity.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...