(Wikipedia) (Wired.com)
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.
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 ...
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.
HPK
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.