Thursday, May 30, 2013

Update on Voltage, Teksavvy, Trolls, and Mass Litigation in Canada and Abroad



(Wikipedia)                                                                                      (

Trolling has many metaphorical connotations, but two that can apply to mass copyright litigation are suggested above.

It looks like the controversial Voltage litigation is about to heat up once again in Canada, as Voltage (purveyor of several films including Hurt Locker and countless titles of lesser merit and fame) pursue potentially thousands of Canadian John and Jane Does. The next major step will unfold in the Federal Court on June 25, 2013 as Voltage continues to seek the disclosure of the names and addresses of thousands of customers of Teksavvy, an indie ISP that has vigorously taken the position that it takes no position in this matter and has spent at least $190,000 to do so. That was as of several months ago. That presumably included the cost of sending two senior counsel from Ottawa to Toronto at least twice just to ask for an adjournment.

Teksavvy’s efforts to date seem to have been directed towards buying time for the intervention by CIPPIC, the University of Ottawa law school clinic. Teksavvy has an estimated cash flow of between $5 and $10 million per month. 

I was pleased to have been CIPPIC’s lead counsel in its first and probably most significant intervention to date, namely the first mass litigation attempt by the US based recording industry that resulted in stopping mass litigation at the time unless the record companies were able and willing to provide adequate non-hearsay evidence and could show a good faith intention of actually commencing litigation. Apparently, the record industry folks were unable or unwilling to meet these modest requirements. For whatever reason, they never returned to the Court in that case. That was the BMG case.

In any event, flash forward to the present in which disclosure of allegedly infringing ISP customers’ identities is now being sought by Voltage Pictures. Involved in this litigation is a company called Canipre. Canipre’s Barry Logan has provided the evidence in this case upon which Voltage relies to identify the IP addresses of the alleged infringers. Canipre is hardly a disinterested expert investigator. In its own recent words on its website, it says:
Canipre provides internet based anti-piracy solutions to the domestic and international entertainment markets.
Our programs utilize advanced technologies and investigative techniques to mitigate piracy loss resulting from the illegal distribution of digitized content.
Canipre incorporates the same media technologies that distribute digitized content through P2P and File Sharing Networks. With our constant involvement in the piracy wars since the litigation of Napster we are pioneers at the forefront of the internet anti-piracy initiative.

We run our technology hard
and the bad guys know us well ...
We invest continually to ensure technologies that are adaptable, robust and finely tuned. This has been demonstrated time and again. More importantly, our technology gets attention and once we've got it, we maintain it.

The bad guys pick up the phone when we call.

And it gets results.
In the last five years, Canipre has interdicted an estimated 40,000,000 files and issued more than 3,500,000 take-down notices with a compliance rate of 100%. Sometimes its [sic] a phone call; our black book is deep. And if that doesn't get it done, Canipre staff is extremely adept at manipulating file-sharing technology; the same technologies that are used to perpetuate piracy are used to effectively [sic]  quarantine piracy.

There has been lots of other interesting stuff on Canipre’s website, including reportedly infringing graphic material.  The role and motivations of Canipre could raise interesting questions in the court case, if the Court is sufficiently apprised of the readily available evidence concerning the circumstances of Canipre’s involvement in this litigation and what may turn up in any cross-examination. As an intervener, CIPPIC has very unusually been granted right the right to cross-examine and to adduce its own evidence by way of affidavit.  The reasons why CIPPIC was given this unusual scope are set forth in the Court’s order allowing the intervention and basically stem from Judge Mandamin’s earlier explicit call assistance and the presentation of opposing views in this very unusual circumstances and the fact that Teksavvy was unwilling to fulfill this role. Cross-examinations are to be completed no later than June 10, 2013.

This will be all the more interesting in light of Mr. Logan’s recent media statements about Canipre’s apparently financially driven motivation and clearly aggressive, determined and partisan view of downloading and file sharing, which may be of relevance in the eyes of the Court. Some of the potentially useful evidence in this case could presumably have been easily provided by Teksavvy staff, as Distributel is apparently able and willing to do. However, Teksavvy apparently won’t provide such evidence. 

The problem with evidence in these types of cases is that copyright trolling, like trolling for tuna, often catches many unintended victims such as warm, cuddly and defenceless dolphins. There are all kinds of frailties in these largely automated detection methodologies. In the USA, they have hooked dead grandmothers, 12 year old children, and countless truly “innocent” victims – either through outright mistake, stale records, or loose use of a Wi-Fi router by persons unknown, such as neighbours, children, friends of teenage children or whatever.

If Voltage gets its way, its troubles may only be beginning. Voltage may have to start hundreds or thousands of individual law suits, which the Court won’t want and Voltage won’t likely want to do. If Voltage thinks is can sue thousands of John and Jane does in one singles lawsuit, it is likely going to be disappointed, given that each case could present different facts and different defences.  Hundreds or thousands of separate law suits can’t possibly be cost efficient for Voltage. There would likely be standard form defence and motion templates circulating online and the lawsuits could quickly grind to a halt.  Or, more likely, Voltage would send out thousands of “demand” letters trying to obtain “settlement” – which may get ignored unless Voltage actually follows up with a lawsuit – which may be unlikely other than in perhaps a few token cases. While that may be enough to provoke fear amongst recipients and some “settlements” in the hundreds or low few thousands of dollars, it could also suggest the inference that the failure to actually sue each intended victim may not comport with the “bona fide” requirement to commence litigation laid down in 2005 in BMG by the Federal Court of Appeal.
...It is sufficient if they show a bona fide claim, i.e.
that they really do intend to bring an action for infringement
of copyright based upon the information
they obtain, and that there is no other improper purpose
for seeking the identity of these persons.

It would be a test of Canadian tradition, if not Canadian law, to use the mere threat of litigation to force disclosure of private information of thousands of persons simply for the purpose of extracting so-called “settlements”, if there is no “bona fide” intention to “bring an action for infringement” in any more than a few token cases at most. One would be surprised if the Court knowingly allows itself to be used in this way.

And there are other possibilities that could make Voltage’s mass litigation very problematic, if it gets that far. As has often been said on this blog, “be careful what you wish for…”

Anyone following American copyright law will be aware that trolling litigation has recently been dealt severe blows in the USA.  The lawyers behind the Prenda law firm face disbarment and other severe sanctions for the troll tactics involving porno websites. See this devastating ruling from a US District Court invoking The Wrath of Khan but deadly serious in all respects and almost certainly career ending for the troll lawyers involved. The Righthaven litigation, which is not porno based but also involves very aggressive lawyering and artificial attempts to assert standing, appears to be finally dead. Troll litigation in England appears to be at and end, along with the careers of some of the lawyers behind it.

Nobody has suggested any problematic behaviour by any counsel in any of the mass litigation efforts to date in Canada. Indeed, this being Canada, one can be hopeful and, indeed, confident that the issues will be dealt with on the merits and that counsel do not themselves become victims in the copyright troll wars, as has somehow happened in the USA and UK.

All eyes are now on CIPPIC to see if it will do what needs to be done to keep Canada safe from mass troll litigation – a goal clearly intended by the Government in Bill C-11 based upon, inter alia, its $5,000 cap on statutory minimum damages for non-commercial activity. However, this depends in large measure on the vigilance of ISPs and others who structurally-speaking should step up the plate to defend the public interest – if for no other reason than that they make a lot of money from the public. And, we also have a law in the form of PIPEDA that arguably requires such vigilance and, indeed, active defence of customers where warranted.

CIPPIC, with its limited resources, is to be commended for stepping up to the plate here where Teksavvy would not. This is really an unfair burden for CIPPIC to have to carry. Canadian public policy regarding copyright and internet matters should not fall to be defended only by an overworked and taxpayer subsidized law school clinic, however capable it may be. But it now falls to CIPPIC and possibly other ISPs, such as Distributel in another pending case, to do what Shaw and Telus did in earlier days, which is to pay heed to PIPEDA and to stand up for customers’ privacy rights. Arguably, this wouldn’t only be the right thing to do but is the required thing to do, since we also have a law in the form of PIPEDA that arguably requires such a defence in instances such this appears to be.


Tuesday, May 28, 2013

Access Copyright v. York University - York's Statement of Defence Delayed

All eyes are on still on York University to see how it responds to Access Copyright's controversial lawsuit
However, behind the scenes discussions between lawyers and other procedural steps may result in a lengthy wait before we see what York will actually do, and in particular how it will respond to AC's apparent "mandatory tariff" theory, to which many copyright experts do not subscribe. It is important to note that this is not a copyright infringement action as such. It is also worth remembering that AUCC did not seek judicial review (in layman's terms an "appeal") of the Copyright Board's controversial interim tariff upon which the York lawsuit is based. Had such review been sought and had it succeeded, which was a good possibility when it was still  timely in early 2011, this lawsuit as such would not have happened.

Further delays in filing York's statement of defence will require a court order, although such orders are routine if based upon consent.


Warman & National Post v. Fournier – the Interveners Have Started Their Engines - updated

In the Warman v. Fournier copyright litigation, we saw as of March 14, 2013  that that such important copyright questions as:
·         what is substantial,
·         how does fair dealing apply in the context of news reporting, blogs, and critical comment,
·          when the limitation period begins to run for material posted online, and
·         whether there can be copyright in a headline
have been left  by fate to be decided in a case based upon rather strange facts, controversial parties and on what has been up until now a very lopsided playing field.  Leaving aside Richard Warman, the main plaintiff who is no stranger to the instigation of controversial litigation, we saw Mr. and Mrs. Fournier (who for their part are also not your typical non-represented litigants) representing themselves against Warman, who had legal representation, and the National Post, which for whatever incomprehensible and unexplained reason was a necessary party below but was supposedly not even aware of or involved in the earlier proceedings until after the final judgement was rendered.

Nonetheless, the National Post now appears in full regalia on the appeal with prominent copyright counsel eager to establish, inter alia, that it has enforceable copyright in short headlines.  Whether or not one has any sympathy for either Warman or the Fournier’s or both or neither, there is a lot at stake here from a public interest standpoint. It was quite clear on March 14, 2013 when I posted my blog that the National Post with its very experienced copyright counsel would more than adequately represent big corporate copyright. But the public interest representation was quite another matter.

So, I said on March 14, 2013, “Interveners, start your engines.”  And, whether by causation or coincidence, I am pleased to note that is precisely what has now happened.

First, the now ubiquitous CIPPIC sought leave to intervene. CIPPIC is a law school clinic, for which I acted as lead counsel on its first and probably most influential case to date, which involved an intervention in the first attempt at mass copyright litigation in Canada – namely the BMG v. Does case in 2004-2005. CIPPIC played a key role both behind the scenes and on the record in facilitating a positive public interest result in that case. The National Post wants to limit CIPPIC’s scope of intervention. CIPPIC has responded in this way.

Now enter the U.S. based Computer and Communications Industry Association (“CCIA”) which counts, among its membership, Google and Microsoft. It has filed an application for leave to intervene in the Warman case that raises some useful points that are potentially helpful to the public interest point of view. The National Post has opposed this application to intervene in strenuous terms, or alternatively to allow it with limits. Interestingly, one of the grounds for objection to the intervention by the National Post is that CCIA has raised what the National Post considers to be the new, irrelevant and unnecessary issue of the application of a certain provision in the Berne Convention specifically regarding quoatations from newspaper articles.  Ironically, the same counsel now acting for the National Post, when he was acting for CMRRA as an intervener in the Supreme Court of Canada,  strenuously urged the Court in the K-12 Province of Alberta case to consider the very general “three-step” test as set forth in the Berne Convention, which would have been a new issue at the Supreme Court level. Prof. Ariel Katz and I argued that the three-step test as found in international law was an irrelevant “red herring” in the that case – and the Supreme Court apparently agreed with us because there was not a word about it in the judgment.

There may still be some important issues that are not yet be on the table or which could use further focus. Although it is getting late in the day, it is possible that other would-be interveners on both sides may emerge, given that this is now clearly a high stakes case and the playing field has been largely levelled. This could be interesting because there are probably some interests watching this case that don’t really want to see a level playing field and may have hoped that this appeal could have served to at least partially undo what they hubristically and mistakenly regard as the  misguided rulings of the Supreme Court of Canada and the regrettable results, from their point of view, of parliamentary democracy in the form of Bill C-11.

At any rate, at least two very credible potential interveners have indeed started their engines. The countdown is progressing.

There will likely be some to and fro on these intervention applications, but it would frankly be surprising if they were not allowed in these circumstances.

I will keep readers posted on important developments.


PS - here's CCIA's reply to National Post's attempt to deny its leave to intervene application.

Tuesday, May 21, 2013

Access Copyright v. York University - Next Step Due on Thursday, May 23, 2013

All eyes are on York University to see how it responds to Access Copyright's controversial lawsuit. 

York was given a routine 15 day consent extension of time to file its Statement of Defence.

By my calculation, we should see something filed on or before May 23, 2013.

If this case somehow does not go well for York, there could be an enormous negative potential for the entire educational establishment in Canada.

Therefore, given the public importance of this matter, I will likely have something to say about York's response in due course.


Friday, May 17, 2013

The Future of Legal Education in Canada - Wine and Cheese with Bruce Feldthusen - Ottawa Couchiching Roundtable - May 27, 2013

The Future of Legal Education in Canada

With Dean Bruce Feldthusen
Dean Bruce Feldthusen of the University of Ottawa Faculty of Law (Common Law) will speak about “The Future of Legal Education in Canada”. This comes at crucial time, when enrolments in American law schools are sharply down due to decreased demand for graduates. Opportunities for new graduates in Canada are decreasing, and many competent graduates cannot even find articling positions. Yet, we are seeing the creation of new law schools in Canada. There are many challenges and opportunities ahead for legal education in Canada. Dean Feldthusen has kindly agreed to talk about these issues, as he retires from the deanship of one of Canada’s leading law schools.

About Dean Bruce Feldthusen

Dean Bruce Feldthusen of the University of Ottawa Faculty of Law, has served as Dean of the Common Law Section since 2000, with a brief interruption to serve as Vice-President, University Relations in 2007 – 2008.
Dean Feldthusen was the research director for the Ontario Law Reform Commission’s 1989 study on Exemplary Damages, which has been cited with approval and adopted in many common law jurisdictions in Canada and abroad. He has also written in the area of equality theory, and human rights law. His article "Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It" won the 2006-08 Canadian Journal of Law and Society Article Prize.

Time & Location

Monday May 27, 2013 7:00–9:00 p.m
Gowling Lafleur Henderson LLP Board Room
2600–160 Elgin Street
Ottawa, ON K1P 1C3
(get directions) 

Fee & Registration

$35 + HST, $20 + HST for students. Wine and hors d’œuvres will be served.
Registration space is limited, and will be processed on a first-come, first-served basis. Prepayment required.
Register at:  or call 1-866-647-6374.
If you're not on our mailing list already, get on it! Call us at 416-642-6374, 866-647-6374, or email We promise never to give your address out to anyone nor will we send you mailings unrelated to the Couchiching Institute on Public Affairs.

Friday, May 03, 2013

CBC Fails to Obtain Security for Costs Order Midway Through Leuthold’s Appeal

On November 18, 2012 I wrote about the curious case of Ms. Catherine Leuthold, an American gardener and photographer, who believes that she is entitled to about $21.5 million in damages because the CBC inadvertently reused, without adequate clearance, some of her still photos from 9/11. At trial, she was awarded $19,200. However, she is on the hook for an enormous amount of costs because she turned down an offer for a higher amount than the trial Court finally awarded. She is appealing both the trial judgment and the costs ruling. Her theory of damages is apparently predicated upon the proposition that CBC’s transmissions from each of the its 800 or so participating affiliated stations and Broadcasting Distribution Undertakings [BDUs] gave rise to a separate act of infringement.

I also noted that the CBC - which is subsidized by taxpayers to the tune of more than $1.1 billion per year – had not asked the Court for an order for security of costs. Ms. Leuthold is not resident in Canada and such security for costs orders are quite normal in the case of non-residents. A plaintiff can avoid such an order if impecuniosity can be demonstrated and the Court is of the opinion that the case has merit. Without commenting on this particular case, such orders can be very effective at stopping speculative litigation brought by non-residents of Canada. I have not hesitated to use this tool when necessary. And it has worked. 

 So, the CBC eventually got around on December 21, 2012 – well into the appeal process and a month or so after I raised the issue on this blog - to asking for security for costs in the modest amount of $50,000. It did not cross-examine on Ms. Leuthold’s affidavit resisting this motion, which indicated that her average yearly taxable income is less than $15,000.00 US and her assets are of limited value. In the words of Noël, J.A.:

The appellant resides in the United States. She is self-employed as a gardener on a seasonal basis (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.1, paras. 4 and 5). She also occasionally licenses photographs which she takes (ibidem). Her average yearly taxable income is less than $15,000.00 US and her assets are of limited value (Affidavit of Catherine Leuthold, Appelant’s Motion Record, p.2, paras. 6 and 8; Exhibit CL-1, Appellant’s Motion Record, p.5; Exhibit CL-2, Appellant’s Motion Record, p.60).
 The Federal Court of Appeal has concluded that it is possible she might recover more than the original award of $19,200 and that ordering security for costs would result in discontinuance of her appeal. The Court refused to grant CBC’s motion for security, which is not surprising under all the circumstances and at this late date.  However, why CBC did not seek such an order at the beginning of this proceeding is not apparent. 

Interestingly, the Court makes a very pointed observation:
[7]   Amongst the questions in issue on appeal is whether a communication to the public for purposes of the Copyright Act, R.S.C. 1985, c. C-42 takes place when the photos are transmitted to the broadcasting distribution undertakings or on each occasion when the broadcasting distribution undertakings retransmit the photographs to the public (Amended Notice of Appeal, Appellant’s Motion Record, pp. 85 and 86, paras. II and III). The number of instances when the appellant’s copyright was infringed turns on this question (Motion Record, Reasons, p. 62, para. 105).
 [8]  While I do not believe that the appellant can seriously envisage obtaining an award of the magnitude which she claims, I am unable to conclude that the issue raised on appeal cannot lead to an award that is more favourable to the appellant. To that extent, I am satisfied that the appeal has been shown not to be without merit and I exercise my discretion so as to allow it to proceed.
(Emphasis added)
This is hardly a victory for Ms. Leuthold.  It simply means that she can continue to pursue her quest for a $21.5 million damage award based upon a very novel theory of liability. Clearly, the Federal Court of Appeal has already expressed some explicit skepticism in the above passage on the likelihood of success on this point. Whether the Federal Court of Appeal finds that there is substantively anything more to this case than an ‘honest mistake” and inadvertent failure by a large bureaucracy to pay for a few reuses remains to be seen. The trial Judge apparently did not seem to think so.

So – taxpayers will likely have to absorb all of CBC’s doubtlessly very high costs on this case, which has been going on for years, no matter what the outcome may be. It is difficult to see how the CBC could be able to collect its costs from someone living in the USA on a taxable annual income of less than $15,000. If the CBC had asked for security for costs early on, things might have been very different.

 In case anyone was not already aware, Canadian copyright litigation is not a lottery. One cannot necessarily expect to receive $21.5 million from the proceeds of a lawsuit against a public broadcaster involving a mistaken re-use – or even six such re-uses - of 18 seconds worth of still photographs in a feature length CBC documentary, when the original license was given for $2,500.
If this decision is to indeed have “significant effects in both Canadian copyright and broadcasting law” as her counsel suggests, I suspect that it will be to remind potentially aspiring litigants and their counsel that litigation is in Canada is not like a lottery and Canadian judges do not hand out gigantic jackpots like American juries sometimes do. One can normally expect that Canadian Courts will follow the maxim as stated by Justice Scott of the Federal Court in this case that: 
Fundamentally, the Court‘s discretion is broad but its assessment of damages must be based on common sense.


Thursday, May 02, 2013

Warman & National Post v. Fournier - CIPPIC Seeks Leave to Intervene

CIPPIC is now seeking leave to intervene in this Federal Court of 
Appeal case. CIPPIC's leave to intervene motion record is available here

It will be interesting to see if there will be other attempts to intervene. 

As I've suggeseted earlier, this is a case that calls out for intervention.