Sunday, December 16, 2012

High Voltage and High Stakes: Voltage Pictures Seeks Disclosure of Customers' Names and Addresses from Teksavvy



There have been many recent reports (e.g. here, here, here, here and here) about Voltage Pictures’ second attempt at mass copyright litigation in Canada and its motion to force Teksavvy, an innovative and independent Chatham, Ontario based ISP known for its consumer friendly advocacy, to disclose the names and addresses of 2,000 of its subscribers who are currently identified only by IP address. These subscribers have allegedly infringed Voltage’s alleged copyrights in certain listed cinematographic works, such as “Balls to the Wall.”  Interestingly, the Statement of Claim does not refer to “Hurt Locker”, a Voltage picture that was the subject of a 2011 mass litigation effort, also in the Federal Court, against customers of some Quebec ISPs. That action was discontinued on March 28, 2012.

If the motion remains unopposed and is granted, the result could immediately affect 2,000 Teksavvy customers and help to pave the way for future mass litigation - or the threat thereof in order to obtain vast numbers of “settlements” - in Canada in the future.  Such litigation would be new to Canada.

I have no involvement at this time in this litigation. That said, I should disclose that I was lead counsel for CIPPIC back in 2004 and 2005 when CIPPIC actively intervened in the BMG litigation in support of the public interest and to assist the Court with respect to copyright and privacy issues.  At that time, certain major record companies were targeting only 29 alleged infringers spread amongst five large ISPs. Now we have one plaintiff (Voltage Pictures) suing 2,000 subscribers of one small Canadian ISP, namely Teksavvy.  It should be emphasized that none of those objecting to or intervening in the motion in 2004 were there in support of what is sometimes called “piracy” by the alleged downloaders and file sharers. The battle was all about privacy – and when it can or should be breached, mindful among other things of the severe consequences of ordinary citizens being dragged into complex and costly litigation, quite possibly by mistake based upon unreliable information.

Although Teksavvy has indicated that it “will not provide personal information to a 3rd party when copyright infringement is alleged unless ordered to do so by a court”, it has, however, decided in the end not to oppose the motion seeking such an order. It has decided not to cross-examine on Voltage’s affidavit material and not to file any written material. In a recent blog post entitled “Why we are not opposing motion on Monday”, Teksavvy’s CEO explains why his company has taken this position:
Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case. Our place is to ensure that we provide adequate notice and also to make known to others that these requests have occurred and that the best way to make sure to avoid being involved is to simply not engage in such activities. If somehow you end up involved and you feel its not right, the place to voice your concern is the hearing on Monday. If you intend to appear, please let us know also.

I will be there on Monday to ensure your privacy is taken seriously however we will not be making a case against the merit of what they are alleging. That's for those affected and others to do if they wish to. Our role has been to provide notice and to take every step to alert and to some degree educate people that the laws have now changed and apparently so too have the technologies used to collect evidence in these cases. If they were not enforcing these laws in the past, they are certainly doing so now, whether the laws are right or not is not for us to judge.

Interested readers should read the whole statement and the many comments that follow from Teksavvy’s often very savvy readers. Teksavvy also has a statement on its website where it states that:
We believe that our customers have a right to:
1.   Have their privacy safeguarded.
2.   Be notified that a request for their personal information has been made by a third party.
3.   Have an opportunity to defend themselves when claims are made against them.
TekSavvy will do everything in its power to protect its customers. However, we must comply with all court orders requiring us to disclose the personal information of our customers.

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.

Teksavvy did go to some length to specifically notify its potentially affected customers. However, it would be very surprising if any of them are willing and able to retain counsel to assume the burden of opposing a determined and experienced plaintiff and to assume the risk of an adverse costs award. In any event, the lack of time probably renders the possibility of such activity by individual Teksavvy subscribers effectively completely hypothetical. 

On Friday afternoon, December 14, just three days after Voltage’s materials were filed, CIPPIC sent a lengthy letter to the Court asking for the matter to be adjourned so that CIPPIC could intervene and providing a preview of some of the issues that may be raised, if the Court allows the adjournment.  The letter makes several allegations, the most important of which are that:
  • According to CIPPIC, this is not “bona fide” litigation. In CIPPIC’s words, “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”
  • According to CIPPIC, there is heavy reliance by Voltage on “hearsay” evidence. In CIPPIC’s words, “even a generous reading of the applicant’s motion materials discloses abundant reliance on hearsay evidence, including the key paragraphs in Mr. Logan’s affidavit describing the gathering of the evidence of infringement (paras. 10-11, at page 10 of the Applicant’s Motion record).”
  • According to CIPPIC, “it is worth noting that the plaintiff has pleaded that the John and Jane Does have engaged in commercial infringement. We suggest that even a generous reading of the applicant’s materials fail to make our even a bona fide case of commercial infringement.”
  • According to CIPPIC, the Statement of Claim also raises questions regarding jurisdiction issues in relation to non-statutory claims; and the question of joinder.

If CIPPIC is substantially right about the issues it raises in its letter of December 14, 2012, it might have been quite feasible for Teksavvy to successfully oppose the motion seeking to force it disclose its subscribers’ identity, as was done in 2004.   

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.

The disclosure motion will be heard in the Federal Court in Toronto at 180 Queen Street West at  9:30 AM or possibly not long thereafter on Monday, December 17, 2012. The hearing will presumably be open to the public, although these court rooms typically have very limited seating for spectators.

HPK

PS - The Federal Court apparently took note of CIPPIC's letter and a request by Teksavvy to adjourn was granted until January 14, 2013. It will be interesting to see if Teksavvy now decides to actually oppose and if CIPPIC is permitted to intervene, and if so on what terms. See Michael's update.    

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