These questions and more have been under consideration in the Federal Court in Toronto as part of a case involving US-based movie studio and known copyright troll Voltage Pictures (“The Hurt Locker”) versus 2,000 currently anonymous Internet subscribers of local ISP TekSavvy.

Voltage say that via local anti-piracy company Canipre they tracked the Teksavvy customers downloading and sharing their movies online without permission and as a result want Teksavvy to hand over the alleged pirates names and addresses.

CIPPIC – protecting subscribers

The case has been dragging on for some time with third parties such as the Canadian Internet Policy and Public Interest Clinic (CIPPIC) getting involved in order to protect the subscribers’ rights. CIPPIC believes Voltage are nothing more than “copyright trolls” sending settlement letters to alleged pirates in order to extract hard cash from them.

Voltage’s previous actions in this area are well-known, with court documents showing that the movie company has filed 22 similar lawsuits in the United States, each with the same pattern. Various flaws exist in the company’s modus operandi, CIPPIC say, not least that an IP address in isolation does not identify an individual.

CIPPIC adds that Teksavvy shouldn’t hand anything over to Voltage, as this will “infringe the privacy rights of the subscribers and may affect the scope of protection offered to anonymous online activity.” CIPPIC fears that any ruling in this case could have a detrimental effect on whistle-blowers and others who leak documents in the public interest.

Voltage’s stance

For their part, Voltage believe that since they have a case under the Copyright Act, Teksavvy should be ordered to hand over the subscribers’ personal details.

Relying on a ruling in BMG Canada Inc. v Doe, 2005, Voltage says it has met all conditions therein (such as having a bona fide case, being reliant on the court/Teksavvy for information to proceed, and promising to reimburse Teksavvy for costs incurred), while adding that it “fully intends to pursue claims against the subscribers.”

The balancing act

So, should the court issue an order which compels Teksavvy to hand over the information to Voltage and, if so, what kind of protections could be baked into the order to minimize invasion of privacy for the Internet users involved?

“Privacy considerations should not be a shield for wrongdoing and must yield to an injured party’s request for information from non-parties. This should be the case irrespective of the type of right the claimant holds,” the Court writes in its ruling.

“Copyright is a valuable asset which should not be easily defeated by infringers. The difficulty in this case is that it is not clear that the protection of copyright is the sole motivating factor supporting Voltage’s claim in this Court. [Evidence] suggests but does not prove that Voltage may have ulterior motives in commencing this action and may be a copyright troll.”

Despite its concerns, the Court notes that Voltage has established a bona fide claim and as a copyright holder its rights outweigh the privacy rights of alleged infringers. However, it also notes that it would be taking steps to “ensure that privacy rights are invaded in the most minimal way possible.”

Privacy concerns and the trolling threat

For its part, Voltage previously argued that the alleged infringers had already made their IP addresses public when they joined BitTorrent swarms and therefore should not be able to remain anonymous in legal action.

The court accepted that stance to a degree but noted that the “specter raised of the copyright troll” and the “very real specter of flooding the Court with an enormous number of cases involving the subscribers, many of whom may have perfectly good defenses to the alleged infringement” had to be considered.

Interestingly, the Court pointed out that damage provisions are limited by the Copyright Act and may prove to be “minuscule” when compared to the cost, time and effort expended when pursuing any claim against an alleged infringer. Here, the Court seems to have an eye on whether this exercise can be a profitable one for Voltage, and whether it should or not.

Also of interest is the Court’s examination of other ‘trolling’ cases in the United States and UK, particularly those involving ACS:Law and adult movie company GoldenEye. Alongside privacy issues, the Court looked at how the involvement of a consumer group in the latter case had influenced the letters of claim eventually sent out by GoldenEye.

Conclusion: Voltage get the green light, but must proceed with caution

The Federal Court notes that evidence exists to show that Voltage is a troll-like operation but the evidence was not compelling enough to put the brakes on the exercise. Voltage has a right to the subscriber information held by Teksavvy following the issue of a relevant order, the Court said.

However, in line with recent cases in the UK, the Federal Court says it intends to maintain control over the process by appointing a Case Management Judge to monitor “the conduct of Voltage in its dealings with the alleged infringers.”

Furthermore, the settlement letters sent out by Voltage will have to be approved by the Court and CIPPIC, and must include a copy of the court order and a clear statement that no court has yet found any recipient liable for infringement or liable to pay damages. This addresses concerns from past cases in the UK where letters implied that a court had already found guilt.

Other restrictions involve Teksavvy, who must be fully reimbursed for their costs incurred when handing over information, which will be restricted to names and addresses only. This data may not be handed to any other entity, including to the public or media.

Significant restrictions to protect subscribers

Describing the above safeguards as “significant”, Canadian lawyer Michael Geist says that the restrictions could affect the financial viability of troll-type activity.

“Given the cap on liability and the increased legal costs the court involvement will create (not to mention paying legal fees for the ISP), it calls into question whether copyright trolling litigation is economically viable in Canada. The federal court was clearly anxious to discourage such tactics and its safeguards certainly make such actions less likely,” Geist concludes.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The U.S Copyright Group, for example, ripped off the website of a competitor. They copied the design and code of the Copyright Enforcement Group and passed it off as their own. Only when we called them out on it did they remove all “infringing” content.

In Canada a similar situation is unfolding at the moment. Anti-piracy group Canipre, who work with the makers of the Hurt Locker as did the U.S Copyright Group, have been busted ripping-off the work of independent photographers.

Their dark themed website features images that originate from several photographers, but they all have one thing in common – they are being used without permission. A classic mistake, but one that should have never been made by a company that takes the moral high ground when it comes to piracy.

Just a few days ago Canipre’s boss defended their plan to sue thousands of BitTorrent pirates by claiming that they want to change people’s attitudes. In addition, they proudly use the ironic slogan “they all know it’s wrong and they ‘re still doing it.”

Since Vice Canada broke the news a few hours ago nearly all the photos have been removed. However, there are still screenshots that should be good for an interesting court battle, or perhaps more appropriately, a settlement of a few thousand dollars.

Steve Houk, who took the self portrait pictured above, contacted Canipre about the blatant infringement, looking for compensation.

“I sent them an e-mail via their website. I identified the image, told them that it is my creative property under copyright and requested that they either remove the image from their site or compensate me for its use.”

“I also told them that it was disheartening to see a company that champions intellectual property rights to pirate someone else’s creative work,” Houk notes.

Canipre quickly took on the role of “innocent” infringer and blamed their web design firm for obtaining the photos. The design firm allegedly took content from an image bank, but that would have to be a rogue outfit as Houk never sold away his rights.

In any case, Canipre is of course ultimately responsible for the content that appears on their company website, just like they hold an Internet subscriber responsible for the infringing behavior of their neighbors.

In addition to Houk, Vice also got in touch with photographers Sascha Pohflepp and Brian Moore. Both confirmed that their work was used on Canipre’s website without permission.

“That’s amazing. No, I did not give them permission as far as I know. Go get ‘em,” Moore responded.

So there we have it once again. An outfit that targets copyright infringers is actively infringing copyright themselves.

They are so incompetent and probably blinded by the dollar signs in their eyes, that they can’t even put a website together without breaking the law themselves – the same copyright law they use to go after movie pirates.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.