It may be noted that the upper end of statutory damages is now $5,000 for any non-commercial infringement covered by the law that was proclaimed in force on November 7, 2012 - as any lawyer should know. No lawyer should ever suggest otherwise.
Here is Distributel’s Motion record which shows a clear and concerted intent to resist the NGN motion. Distributel has filed two affidavits of its own from two of its employees (apparently, no expensive third party experts were considered necessary). These affidavits potentially seriously undermine the reliability of the affidavit evidence provided by Barry Logan of Canpire, who is also the deponent in the Voltage/Teksavvy matter.
Distributel had earlier chosen to “rely on the Court” to
protect the privacy rights of individuals. It claims to have changed its position based upon becoming aware of NGN’s representation to a customer of a potential liability
of up to $20,000 and a lack of key evidence to support NGN’s claims. Even if
belatedly, Distributel is now stepping smartly, competently and confidently up
to the plate to do what Teksavvy has controversially failed to do to date.
Teksavvy’s position on why it “does not oppose” the Voltage disclosure
motion has been unconvincing. Yet, it claims to have somehow spent at last
report at least $190,000 to not
oppose and to seek two adjournments with the apparent goal of buying
time to let a law school clinic try to get what could be at best limited status
as an intervener. Teksavvy would of course have had full rights to bring
evidence of its own, as did Distributel, and to cross examine Barry Logan of
Canpire, if it chose to do so. Ironically,
it might have been much less expensive for Teksavvy to have simply engaged
decisively at the outset than to have persisted in its apparent strategy to vigorously
“not oppose” Voltage’s motion. Teksavvy
is not exactly impecunious. It is understood that it has between one and two
hundred thousand subscribers. If its average revenue per subscribers is $50 per
month, that’s cash flow of between $5 and $10 million per month. Teksavvy
doesn’t need to rely, however indirectly, upon a law school clinic to take care
of its customers, its business model and the public interest.
While I don’t often disagree with my friend Michael Geist, I
respectfully cannot agree with his characterization
that “TekSavvy has fought for the right to notify its customers and to allow
CIPPIC to intervene in a case involving thousands of subscriber names”.
First of all, Teksavvy always had the “right to notify its customers”. There
was nothing to fight for here, except perhaps a brief delay – which would have inevitably
taken place in any event and would have likely been far from brief if Teksavvy
had only actually opposed the motion, and especially if it had filed evidence
and/or cross-examined on Voltage’s
evidence. In any event, what exactly were Teksavvy’s customers supposed to do
with this information? If they knew that they had downloaded some of Voltages’
films listed in the publicly available documentation, they might have guessed
that their alleged IP address might have been on the Voltage’s hit list. What
were they to do if their alleged IP address was alleged to be implicated? Hire
a lawyer? Hardly.
The economics of troll litigation and the requirements of
the Federal Court Rules make it completely unfeasible for an individual to
retain counsel when the upper limit of what’s at stake is realistically only
$5,000 per individual – however disproportionate an award of that magnitude
might be. That’s why the economics of mass litigation threats attract copyright
trolls and why ISPs need to be vigilant and diligent to defend their customer’s
privacy.
It is an ISP’s role – and arguably its legal responsibility
– to positively defend its customers’ privacy in the face of a motion for a
court order that is arguably inadequate or fails to meet the “bona fide” test. This
need not be an expensive exercise. Distributel is relying on evidence from its
own employees. It is using only one law firm and not several sources of counsel.
After BMG, this is all well known territory
with detailed maps, guidelines and guideposts. Nothing about the new
legislation or subsequent case law has made anything more complicated in any
material respect. For whatever reason, Teksavvy
may end up spending far more money not opposing the disclosure motion rather than
actually opposing it, which reliable
news reports indicate is indeed the wish of the Court.
As for CIPPIC’s role, CIPPIC itself says that it “represents
consumer and other public interests in such areas as intellectual property,
consumer protection in e-commerce, domain name governance, personal information
protection and privacy”. It’s job is not to step in for business organizations
that can hire their own law firms. That puts
CIPPIC in a very difficult position because its mandate is not be a law firm
engaging in litigation that can and should be handled by the directly involved
parties and their law firms. CIPPIC
relies on generous public and charitable funding from such benefactors as the
Samuelson-Glushko Foundation. CIPPIC was never intended to substitute for commercial
law firms or to directly or indirectly provide legal services to parties that can well afford such law firms.
CIPPIC has already done
more than its duty in serving the public interest with respect to the mass
litigation issue – with its first and best known victory to date, namely as an
intervener in the BMG litigation in 2004
-2005. I had the honour of being CIPPIC’s lead counsel in that case aided by the indispensable
and very able help of Alex Cameron who handled the privacy issues with the clarity that proved to be so useful to the Court. There were very many important uncharted de novo public interest points to be made at that time and it was essential
that CIPPIC be there to make them. As a result of CIPPIC’s intervention and the
extremely competent opposition by Shaw and Telus, Canada has been immune from
mass and troll litigation up until now. With
the excellent decisions of the Federal Court and the Federal Court of Appeal, the
whole matter of disclosure motions in mass copyright litigation is now well
understood and well-travelled ground and the map can be followed by anyone. That
is exactly what Distributel seems to be doing and what Teksavvy won’t do, for
whatever reason.
It is not apparent at this point when the hearing on the NGN/Distributel
motion will take place and what may happen in the interim. Nor is it clear how Distributel’s
strong opposition may impact the apparently similar situation in the Voltage
matter, in which Canpire is also crucially involved.
So – Distributel has now decided to fight to win for its
customers' privacy rights. It is doing
what an ISP should do in these circumstances – which is to defend its
customers’ privacy in the face of a disclosure motion that it believes is
seriously inadequate. Several comments on Michael Geist’ blog suggest that this
is not only the right thing to do but the smart thing to do from a business
standpoint, since some readers are openly musing about switching from Teksavvy
to Distributel. Maybe Bell and Rogers
will stand up and fight to win if and when their time comes around again and
material is inadequate, as Shaw and Telus did earlier in 2004 and 2005. That is
how the system should work and now seems, at last, to be working.
HPK
PS - Here is a copy of Judge Mandamin's Reasons for Order dated January 31, 2013 in the Voltage/Teksavvy confirming that "The Court is better served in coming to a proper decision having heard from differing sides." The other statements from the Court are also very important.
PS - Here is a copy of Judge Mandamin's Reasons for Order dated January 31, 2013 in the Voltage/Teksavvy confirming that "The Court is better served in coming to a proper decision having heard from differing sides." The other statements from the Court are also very important.
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