Some Clarity on the Voltage and Teksavvy Disclosure Motion to Date

There was another hearing yesterday, January 14, 2013 in the Voltage case in which Voltage is seeking disclosure from Teksavvy of the names behind more than 2,000 IP addresses. Mr. Justice Leonard Mandamin of the Federal Court (whose has a degree and background in electrical engineering) further adjourned the matter and made some notably important comments.

The only reliable information about this hearing comes not from the blogosphere, where there have unfortunately recently been some sometimes uncivil, sometimes inaccurate, and sometimes very difficult to understand pronouncements from pundits. This is not helpful.

Rather, the reliable and quality information comes from Christine Dobby, a journalist with the National Post/Financial Post who is also a lawyer. She understands judicial proceedings and has followed this case closely from an early point.  She was present in the Court yesterday and her report entitled “Judge Grants new adjournment in Teksavvy illegal file sharing case”  includes the following:

Federal Court judge Leonard Mandamin made the order to allow enough time for a public interest group to have its own motion to intervene in the case to be heard before proceeding with the motion for disclosure on its merits.

“Hearing a motion on a one-sided basis is risky,” Judge Mandamin said Monday.

            ….

However, Teksavvy does not plan to oppose the substance of the motion for disclosure of the names.

But, if granted status as an intervener in the case, CIPPIC, the public interest legal clinic based out of the University of Ottawa, does intend to challenge the evidence Voltage has provided.

….

Although the judge made no comment on the merits of that motion Monday, he did suggest that it would be useful to have the opposing side of the case before the court in deciding Voltage’s motion for disclosure.

Judge Mandamin also said that since the courts are still in the early stages of dealing with new copyright legislation (which just came into force in November), it is “important to get it right,” and a motion without representations from different points of view does not help.

(emphasis and highlight added)

To restate the obvious, there is no “opposing side” in this case at this time. Teksavvy, the Respondent to the disclosure motion, could oppose it and arguably should oppose it. However, for reasons that many find unconvincing, it has chosen not to oppose it.

Even if CIPPIC is allowed to intervene, its role may be limited both by the Court and by practical considerations. In 2004 in the ground breaking BMG v. Doe case, CIPPIC was allowed limited intervener status that specifically precluded it from cross-examining the Plaintiffs’ affidavit material or filing of further evidence.

Interveners can sometimes have considerable influence in proceedings ranging from circumstances very similar to this (e.g. CIPPIC’s intervention in 2004 and 2005 in the BMG case) and even in the Supreme Court of Canada. But interveners in court proceedings are rarely if ever in the same position in a hearing as an actual party and their role is not to duplicate or substitute for parties or respondents with full standing. In this instance, Teksavvy is not a party to the actual infringement litigation but clearly is the one and only Respondent on the Rule 238 disclosure motion. It would have had full rights to cross-examine and introduce its own evidence, should it had chosen to do so.

The BMG case would assuredly have turned out very differently if Shaw and Telus had not rolled up their sleeves and taken all reasonable steps to vigorously oppose the disclosure motion, including cross-examining on the affidavit evidence that was found to be clearly inadequate both by the Federal Court and the Federal Court of Appeal. CIPPIC did not have the status or the resources or the practical ability to do what Shaw and Telus did, even if were permitted to do so – which it wasn’t.

In any event, CIPPIC obviously does not have access to the technical information held by Teksavvy that might be relevant to the reliability of Voltage’s material and might otherwise assist the Court on the issues with which the Court is clearly concerned, such as Justice Mandamin’s reported comment that “the court needs to be well informed of the connection between IP addresses and the information Voltage has on alleged infringers.” 

Ms., Dobby also reports, interestingly, that:

Lawyer Nicholas McHaffie said Monday his client [Teksavvy] has also incurred about $190,000 in legal fees and other costs dealing with the motion for third-party disclosure brought by the California-based film studio Voltage.

Based upon the above, the following seems to be clear at this time:

·         Teksavvy has spent about $190,000 on this motion, has appeared in Court twice and asked for adjournments, but is still apparently not opposing it, which presumably means that it will not be cross-examining on Voltage’s material and not putting in any evidence of its own, and not make any representations

·         CIPPIC may or may not be given intervener status, but an intervener rarely if ever is in the same position as a respondent, especially in terms of cross-examining or introducing further evidence. In any case, CIPPIC does not have access to Teksavvy’s internal information;

·         The Court is clearly attuned to the importance of the proceeding and that “it is “important to get it right,”; and,

·         The Court is clearly of the view that “a motion without representations from different points of view does not help”.

Based upon Ms. Dobby’s report, it would seem to be reasonably apparent that the Court wants and needs as much assistance as is necessary on what it clearly sees as an important matter that will require a special hearing of at least one day and that it may be expecting Teksavvy to actually make representations that go well beyond simply “not opposing” the motion.

Once again to be completely clear, an ISP respondent to a Rule 238 disclosure motion is fully entitled to test the adequacy of the evidence and the other factors related to privacy and PIPEDA as laid down by the Federal Court of Appeal in BMG v. Doe more than seven years ago. This includes the right to cross-examine and, if advisable, and to file its own affidavit evidence, which in turn is subject to cross-examination. Arguably, if the material is problematic, the ISP should test it and, if necessary, should oppose it. In opposing it on the BMG v. Doe grounds, there is absolutely no implication that this entails any “comment on the merits of the case” or “making a case against the merit” with respect to copyright infringement.

Hopefully, the above will restore some clarity to the public’s understanding of this potentially very important proceeding.

HPK