If TekSavvy Won't Oppose Copyright Trolls Who Want Customer Info, Who Will?
from the privacy-before-piracy dept
We recently covered the latest attempt by Voltage Pictures to identify alleged Canadian filesharers in order to launch one of their infamous copyright shakedown schemes. Rather than target one of the big ISPs, they made a list of thousands of IP addresses from TekSavvy, an independent service provider, and sought a court order forcing them to identify the users behind the addresses. TekSavvy has been admirably transparent and communicative about the issue, and was clear from the start that it would not release any information without a court order. On Monday, the court granted TekSavvy's request to adjourn until January so it could notify its customers and give them a chance to oppose the motion that would reveal their identities. However, TekSavvy has also been very clear about one thing: it won't be opposing the motion itself, and it's left a lot of customers and commentators wondering why.
Nobody would expect TekSavvy to personally defend each customer against accusations of infringement, and the company's statements so far seem to hinge on that idea as the reason it's not going to oppose Voltage's request in court. On the surface that might seem reasonable, but in fact it sidesteps the real issue: TekSavvy may not be responsible for its users' defence against infringement lawsuits, but it is responsible for protecting its users' privacy—and there are plenty of serious privacy issues with Voltage's motion that need to be addressed long before we get to the point of determining the actual guilt or innocence of individual users.
This isn't hypothetical. Howard Knopf explains the key legal comparison in this case—a 2004 attempt by BMG to get information on a mere 29 users from much larger ISPs. Not only did the ISPs oppose the motion, they won, and established important precedents in doing so.
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.
...
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.
A key intervener in that case was the Canadian Internet Policy & Public Interest Clinic, which fought hard for the privacy of the Doe defendants. CIPPIC also sent a letter to the court regarding this recent Voltage motion, requesting the adjournment that was granted Monday. That letter focused heavily on the factors established in the BMG case, and when you run through those factors, you begin to see why this is a privacy issue before it's an infringement issue. The court's disclosure test was designed to ensure that customer info isn't released without a solid reason—and perhaps the most important requirement is that there be a bona fide claim, further clarified as a true intent to pursue further action based on the disclosure, and no ulterior motive. When it comes to a shakedown operation like Voltage's, everyone knows that the exact opposite is true, and CIPPIC's letter (pdf) cites the company's past (while explaining precisely what a "copyright troll" is) to make this point:
On the question of bona fides, the plaintiff has identified literally thousands of John Does and Jane Does. BMG v. Doe involved only 29 potential defendants. It is worth asking the plaintiff if it holds a bond fide intent to bring 2000 actions for copyright infringement. As will be noted below, 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. In CIPPIC’s view, this scheme does not meet the requirements of the need to show a bona fide claim, but instead is evidence of another purpose.
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the applicant has in the past engaged in similar mass litigation in the United States. The applicant’s business model for such litigation has earned it the label of “copyright troll”. Trolls’ business model involves alleging that consumers are liable for copyright infringement, and demanding compensation under threat of litigation. The compensation demanded invariably grossly exceeds the damages a troll might expect if the troll were to actually litigate and obtain judgement and a damages award. However, such compensation does not typically exceed the cost to a defendant of defending the action. Enough defendants will choose to pay rather than defend to make the scheme profitable to the troll. The troll typically never litigates through to a judgement, since the costs of doing so would render the scheme as a whole less profitable. The troll’s business model, thus, is an arbitrage game, exploiting judicial resources to leverage defendants’ fear and the costs of defending into a revenue stream. And, of course, no part of these revenues finds its way back to the court to offset costs borne by the taxpayer as the judiciary plays its inadvertent role in this scheme. In CIPPIC’s view, such a purpose is improper and bars the applicant from establishing a bona fide claim.
Not only that, as the letter notes, Voltage's motion accuses the users of commercial infringement—a much higher bar carrying much higher potential fines. This accusation seems completely unsupported by the evidence (which amounts to little more than "these IP addresses were connected to BitTorrent swarms") and even less likely to qualify as a bona fide claim.
Since we've been seeing lots and lots and lots of US judges slamming copyright trolling operations and dumping their cases, there's clearly an opportunity here for Canadian courts to smack down this practice before it gets off the ground—or re-assert their earlier smackdown, anyway. But the only way that can happen is if someone actually opposes Voltage's request (CIPPIC's letter was just supporting a delay). TekSavvy is still insisting it won't be them; CIPPIC might seem the logical candidate, and I'm sure they'll do what they can, but it's unclear how much they will be allowed to intervene if none of the directly-involved parties put up a fight. The only other option is the customers themselves, once TekSavvy notifies them—but, of course, the whole point of this scheme in the first place is that most people can't afford to take on a complex legal battle.
So will Voltage waltz right past the clearly-established test for the disclosure of private information? If TekSavvy doesn't do anything, they just might.
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Filed Under: canada, copyright trolls, isps, privacy
Companies: teksavvy, voltage
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Canadian privacy laws
People went ballistic about Google "accidently" recording info from unsecured wifi. Now some company wants to sue people for downloading a movie they could go rent for $1.50, and all of our privacy laws go out the window?
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Public Image
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Re: Public Image
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Re: Re: Public Image
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How many ISPs silently rolled over?
I don't see anyone getting a notice letter from Rogers for using bittorrent.
--dave
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Copyright the worst idea?
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Why is it up to teksavvy to protect us?
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Re: Why is it up to teksavvy to protect us?
No, we want our ISP to fight for our right to privacy since our governments won't.
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Re: Why is it up to teksavvy to protect us?
Actually we want the ISP to hold to their privacy policies that they showed us when we signed up for our service. Not to roll over and die because someone claims they have proof but can't show us right now...so Trust them.
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Re: Re: Why is it up to teksavvy to protect us?
I don't get why people seem to think Teksavvy should they pick up the bill to defend their customers from the suit?
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Re: Re: Re: Why is it up to teksavvy to protect us?
It's about TekSavvy standing up and saying "we know how you operate, and that you just want to launch a shakedown operation and intimidate a bunch of our customers with threat letters, and we're not going to let you do that"
I agree they don't have to, but they could (as other ISPs have in the past) and I think there's plenty of reason to argue that they should
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Re: Re: Re: Re: Why is it up to teksavvy to protect us?
http://www.dslreports.com/forum/r27824891-Why-we-are-not-opposing-motion-on-Monday.~st art=440
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Re: Re: Re: Re: Re: Why is it up to teksavvy to protect us?
Marc is saying that he doesn't think there are any grounds on which to oppose the motion -- he even cites the test from the BMG case that I discuss above. But as the CIPPIC letter and other commenters assert, there is serious question as to whether this passes the bona fide criteria. CIPPIC also brings up the hearsay issue, which was central to BMG -- though I'm less clear on the legal details there.
I'm not sure why TS is taking it as granted that neither of those things applies here...
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Re: Re: Re: Re: Re: Re: Why is it up to teksavvy to protect us?
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Re: Re: Re: Why is it up to teksavvy to protect us?
Frankly I think that the ISPs have every incentive to undermine these heavy consumers that just push up their bandwidth costs and expose them to law enforcement pressure.
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Re: Re: Re: Re: Why is it up to teksavvy to protect us?
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Re: Why is it up to teksavvy to protect us?
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Re: Why is it up to teksavvy to protect us?
Because ISP is the one who gives you the possibility to surf the internet.Teksavvy taking our money and only they should give the answers.If they don't like it,they should filter all forbidden content to their users.If Teksavvy giving me the permission to enter the web so they are the one responsible for the results.I didn't kill anyone in the web ,I just use the available web content in front of me.If you don't like it disable it .As simple as it is.
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Re: Why is it up to teksavvy to protect us?
Because ISP is the one who gives you the possibility to surf the internet.Teksavvy taking our money and only they should give the answers.If they don't like it,they should filter all forbidden content to their users.If Teksavvy giving me the permission to enter the web so they are the one responsible for the results.I didn't kill anyone in the web ,I just use the available web content in front of me.If you don't like it disable it .As simple as it is.
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Re: Re: Why is it up to teksavvy to protect us?
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Re: Re: Why is it up to teksavvy to protect us?
Imagine if Bell Telephone was responsible for everything you did vial the telephone? They'd have to monitor every call, and cut off anything that sounded like it might break the law. If they didn't, they'd be an accessory to the crime.
If you wanted to discuss a peaceful protest against, for example, gang rape in India, you would have to convince the Bell censor that you wouldn't be likely to do anything illegal in a fit of emotion. If you couldn't, the censor would have to cut you off and report you to the police as possibly proposing to break a law.
--dave
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They did NOT fight the order in any manner whatsoever, and will now be seeing settlement letters in their near future.
http://copyrightenforcement.ca/wp-content/uploads/2012/11/NGN-Order-Montreal.pdf
I think its good on Teksavvy that they gave customers time to get their own lawyers anonymously so as to dispute being named in one of these suits.
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Re:
I wouldn't go quite that far... As a commenter above notes, they have done more than some others in their shoes. And we don't know what legal advice they've been given.
I do think they have reason, opportunity and at least some responsibility to fight this -- and I question whether they've gone far enough. But they deserve credit for being very open about the whole thing.
Now, what I do believe is the counterpoint to yours: if they do take this opportunity to stand up against copyright trolls and defend their users from a shakedown operation, they deserve to gain so many customers that they become one of the biggest ISPs in the country.
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Re: Re:
And as others have said, they never promised to defend the customers and it's not clear they even could do so. They don't monitor the traffic and they're not responsible for what their customers choose to do with the connection. Why would they put their head in the guillotine?
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Re: Re: Re:
You assume people are guilty?
What about the extra load from monitoring a $0.99 rental?
People like you make me want to start my own "pending" list.
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Infringing???
This brings up an odd situation that happens quite frequently. If I have a Netflix or LoveFilm account and I "pirate" a copy of a film that is available on those services, am I infringing?
I've already paid for the service, so in theory, the content creators have been compensated. But one day I was too lazy to look through Netflix and just downloaded the movie. Why should I be targeted by a troll if I've already paid?
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Re: Infringing???
If you paid for it, you should not be lectured or forced to watch ads. Simple as that!
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Re: Re: Infringing???
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Re: Infringing???
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Check your facts, please...
... and the judge ended up granting an adjournment.
Source:
http://www.davidellis.ca/watching-voltage-and-teksavvy-duke-it-out-in-fed eral-court/
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Re: Check your facts, please...
McHaffie made it very clear the only grounds for opposing the motion was trying to ensure potential defendants got adequate time to be notified.
SO they only opposed it to let their customers have more time, not on privacy or any other grounds. So I believe Leigh's original analysis is accurate.
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Re: Check your facts, please...
They opposed the motion in terms of requesting an adjournment, but that's all. They won't be actually opposing handing over the info -- they just wanted time to inform their customers so the customers could individually oppose it if they wanted. As your link notes a few lines later:
"McHaffie made it very clear the only grounds for opposing the motion was trying to ensure potential defendants got adequate time to be notified."
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Enough is enough. You guys, fightcopyrighttrolls and others are preoccupied by "not stooping on their level" while these shitheads continue raping students and seniors. I'm not as picky as you and want trolls to test their own medicine, to inconvenience their lives as much as I can. My immediate target is "my" troll Lipscum and a sweet pair from Malibu (who celebrate their wedding anniversary tomorrow).
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Face it-- file sharers are bad customers
Why would anyone want a file sharer as a customer? Why would anyone want a customer devoted to a philosophy of not pulling their own weight and freeloading off of other people?
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Re: Face it-- file sharers are bad customers
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Re: Re: Re: Face it-- file sharers are bad customers
TekSavvy offers three plans with different bandwidth levels -- only the most expensive is Unlimited. Don't make stuff up, bob.
Again, if you don't see the people with the highest demand for your product as good customers, then there is something wrong with your business. To assert otherwise is idiotic (and I am fairly sure TekSavvy would NOT take your stance that they don't care about high-bandwidth customers)
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Re: Re: Re: Face it-- file sharers are bad customers
I'm on an "unlimited" plan myself, and would definitely have quite high usage. Downloading games on Steam and Xbox, watching Movies and TV on Apple TV - these both are high bandwidth applications (unless it's not available, I only purchase movies and TV in HD and stream, I don't run an iTunes server).
There are plenty of perfectly legal uses for an "unlimited" plan. If my provider turned around tomorrow and told me that when they sold it to me as "unlimited", they didn't really mean it, can I please stop downloading so much, I'd be considerably displeased...
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Re: Face it-- file sharers are bad customers
If by "parse" you mean "take the overt and obvious claim seriously," then you're right. Why would you think it's wrong to object to not getting what you were promised when you bought it?
And yet again, you are ignoring the fact that filesharers are not necessarily pirates, and that not only filesharers are affected by this stuff anyway.
You seem to think that the only real opposition to the abuse of copyright law is from pirates. Most pirates, pretty much by definition, don't care about the abuse of copyright law.
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Re: Re: Face it-- file sharers are bad customers
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Re: Re: Re: Face it-- file sharers are bad customers
BTW, those two things aren't linked. I detest metering, but don't use more than the average amount of bandwidth.
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Re: Face it-- file sharers are bad customers
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Re: Face it-- file sharers are bad customers
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Re: Face it-- file sharers are bad customers
Customer *uses lots of bandwidth, keeping an eye on the word unlimited in his CONTRACT*
Bob "HEY! You're using a lot of bandwidth! Stop that, you greedy bastard! You're not allowed do that!
Customer "Wtf?"
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Re: Face it-- file sharers are bad customers
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Re: Re: Face it-- file sharers are bad customers
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Re: Re: Face it-- file sharers are bad customers
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Re: Face it-- file sharers are bad customers
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Re: Face it-- file sharers are bad customers
The use of the word unlimited in a contract does mean endless bandwidth according to the service provider.
Again, someone intends to attack file-sharing and ends up attacking the idea of expecting a contract to be honored.
Less people would file-share if trolls and shills could somehow, someway figure out away to argue against file-sharing without also arguing against the most basic of consumer rights. Bob, you're encouraging piracy of the worst kind. Content creators beg you to stop.
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Re: Re: Face it-- file sharers are bad customers
The average ISP owner I know says that they're forced to offer "unlimited" because that's what the customer expects. So they try other passive aggressive techniques to limit hefty consumption. Bandwidth is too expensive to offer truly unlimited service.
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ISP Custodian of Private Info
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I love the smell of buring trolls in the morning.
Lima echo alpha victor echo - Charlie alpha november alpha delta alpha - November alpha oscar.
Alpha november delta - Tango alpha kilo echo - Yankee oscar uniform romeo - Echo x-ray tango oscar romeo tango india oscar november - Sierra charlie hotel echo mike echo - Whiskey india tango hotel - Yankee oscar uniform. Tango Yankee Victor Mike.
The only good troll is a fireballed voltage-troll!
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These people aren't even guilty
And now I may have to try to prove this in court, because there are roving extortionists in the world and TekSavvy refuses to stand up to them?? Excuse me THIS BLOWS and this'll be the absolute end for me and TekSavvy if they do not eventually step up here and do the right thing for their customers.
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Re: These people aren't even guilty
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Re: Re: These people aren't even guilty
I hope you are not on the list either but even if you are, you still are probably innocent and don't deserve to be exposed, IMO.
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Re: These people aren't even guilty
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Re: Re: These people aren't even guilty
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Re: Re: Re: These people aren't even guilty
Thanks for clearing that up Laroquod!
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Re: Re: Re: Re: These people aren't even guilty
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In the interest of full disclosure I worked as an intern at CIPPIC for two semesters in 2010-2011. It was an amazing experience.
Keep it up David and Tamir!
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File Share users are not thiefs
1) Nothing has actually been stolen
Example if you went to a hardware store measured and analyzed a tool right down to the metal content then using your own resources you made an exact copy for your own personal use (not for sale) is that stealing.
There is not a single hardware company that could get a judge to do more then laugh if they tried to sue the person for even the cost of the tool let alone charging several thousand time more for it.
2) Instead of these movie companies changing the way they sell their product to protect their right to make a profit they go after people maliciously. But they still spend millions on movies knowing full well people will share it because they dont want the hassle of an oversized CD/DVD taking up precious room in their house.
How much room would several thousand movies in DVD format take up and how long before they get scratched and are useless.
The movie companies have choosen to stick with outdated technology and sales tactics. But it doenst mean we should be stuck with their stupidity.
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