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 company previously launched a huge campaign in the United States targeting tens of thousands of alleged sharers of the movie The Hurt Locker, and is now targeting around 1,100 subscribers of Ontario ISP Teksavvy.

Back in December Teksavvy asked for an adjournment of the case so it could properly advise its customers they were being targeted by Voltage. That helpful request was granted by the court but the ISP has come in for criticism after it announced that it would not be contesting the actual motion for discovery.

That was left up to the Canadian Internet Policy and Public Interest Clinic (CIPPIC) which sent a letter to the court requesting a delay of the discovery hearing, arguing that there had been insufficient time for potential defendants to learn of the motion and instruct a lawyer, and insufficient time for CIPPIC to prepare an intervention.

Despite opposition from Voltage an adjournment was granted and yesterday the parties returned to court. Developments during the hearing mean that the movie studio still won’t be getting its hands on those Internet users’ identities just yet.

Federal Court judge Leonard Mandamin granted an adjournment Monday to allow the Canadian Internet Policy and Public Interest Clinic (CIPPIC) to prepare a motion to intervene in advance of the hearing to consider the motion for disclosure of the identities.

If CIPPIC is allowed to intervene the group says it will challenge Voltage’s evidence which was collected by Canadian anti-piracy outfit Canipre, a company that recently boasted that it holds monitoring data on thousands of local alleged BitTorrent users.

“It’s hearsay evidence,” says David Fewer, the director of CIPPIC. “There’s very little in that affidavit that they’ve filed in support that gives us confidence that they’ve met the legal burden.”

The complexities of the case aren’t lost on Judge Mandamin either, who has asked for clarification on technical issues in respect of the evidence.

As expected the adjournment to allow CIPPIC to prepare an intervention was opposed by Voltage, whose attorney suggested that there might be an attempt afoot to drag the case out. The company also said that the alleged infringers could still be sharing Voltage’s movies online and without their identities they could not issue them with an injunction to stop. In response Teksavvy offered to advise its customers to stop sharing copyrighted material, a gesture accepted by Voltage.

The case is proving an expensive one for Teksavvy. According to the Financial Post the ISP has already spent $190,000 dealing with the Voltage motion.

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

One of Canipre’s partners is Voltage Pictures, the company that launched a huge campaign in the United States targeting thousands of alleged sharers of the movie The Hurt Locker. Voltage’s settlement project has now spread to Canada and the first unlucky targets are customers of the ISP TekSavvy.

Voltage Pictures are claiming that around 2,000 TekSavvy users have been monitored sharing around two dozen of their titles including Tucker & Dale vs Evil. They asked the ISP to hand over their personal details so they can be approached for settlement, TekSavvy refused and the whole thing went to court in Toronto Monday.

However, while TekSavvy have gone out of their way to keep their customers informed (leading observers to believe that they would end up fighting Voltage Pictures to defend their customers’ privacy) yesterday’s proceedings weren’t to go that way at all.

TekSavvy CEO Marc Gaudrault said that after spending a considerable amount of time the company had come to a decision that it would not to oppose the motion for discovery filed by Voltage.

“Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case,” Gaudrault explained.

The TekSavvy CEO says the company’s primary responsibility is to ensure that customers being targeted by Voltage Pictures get “adequate notice” but added that the best way for people not to become involved in the case “is to simply not engage in such [illegal file-sharing] activities.”

After learning there would be no fight, there was a backlash among some users which prompted a response from Gaudrault.

“If there was more I could do to protect your privacy, I would do it. I just don’t have a hook,” he said. “Whatever behavior our customers engage in is not for us to scrutinize. If we wade into that, we are essentially going against Net Neutrality principles that we fought for.”

Gaudrault said that new Canadian copyright laws had tied his hands. He said that the Copyright Modernization Act shelters ISPs from liability from infringement based on the fact that they are mere intermediaries and nothing more. Getting further involved in the merits of the case could jeopardize that.

“The law is the law. I can’t defend against the law. The laws are there to defend against bad things. If we defend against laws, that makes us bad. We don’t do that. We’ve never done that,” he said.

But already the ISP’s decision is coming under scrutiny.

Writing on the Excess Copyright blog, lawyer Howard Knopf says that despite the ISP’s openness, questions will arise as to why TekSavvy isn’t opposing the motion as ISPs Shaw and Telus did (with success) in a music industry lawsuit dating back to 2004.

“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,” Knopf wrote.

One success that did come out of the hearing is that the judge apparently took notice of a letter filed by the Canadian Internet Policy and Public Interest Clinic which requested a delay in the court hearing Voltage’s motion for discovery.

CIPPIC argued that there had been insufficient time from the filing of the motion to yesterday’s hearing date for defendants to “learn of the motion, retain, be advised by and instruct legal counsel,” and insufficient time for “CIPPIC to prepare and file an application to intervene in the motion.”

Despite opposition from Voltage the hearing was adjourned until January 14, 2013. In the meantime TekSavvy could potentially change its mind on the decision not to oppose the motion but given Marc Gaudrault’s decisiveness since the weekend, that seems unlikely. Should that remain the case, any opposition will have to come from CIPPIC and the defendants.

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

As reported here in November, Canadian anti-piracy company Canipre has been working with righthsolders to monitor BitTorrent networks for alleged infringers. Together with NGN Prima Productions Inc., last month they filed their first lawsuit in the Federal Court in Montreal over the unauthorized sharing of the movie Recoil.

And now, just as promised, they are back again.

The latest case sees Canipre team up with Voltage Pictures, the company that brought misery to thousands in the United States with their anti-BitTorrent campaign targeting alleged sharers of the movie The Hurt Locker.

Last week Voltage sent a motion to the ISP TekSavvy for the personal details of customers associated with around 2,000 IP addresses allegedly logged by Canipre sharing two dozen Voltage titles including Tucker & Dale vs Evil.

TekSavvy did not hand over any information and will not do so without a court order, but Voltage have informed the ISP that they will be in a Toronto court next Monday 17 December seeking such an order which will force the ISP to comply.

The movie company says it will seek an injunction, statutory damages, “an accounting of all profits from the Defendants’ wrongful activities”, damages for “interference with economic relations and unjust enrichment”, “aggravated, exemplary and punitive damages in the amount of $10,000.00″, “special damages” (whatever they are) plus costs.

Unlike many ISPs who choose to leave their customers in the dark when they are targeted in this fashion, TekSavvy appear to be doing everything in their power to keep people informed. Yesterday the company sent out emails to the billing email addresses of those account holders likely to be affected by the action.

Additionally – and this is to be commended – TekSavvy have also produced a Copyright FAQ which should go a long way to explaining what the current action is all about.

In a statement TekSavvy CEO Marc Gaudrault says he is “puzzled” by the approach taken by Voltage.

“It seems contrary to the government’s intent with copyright reform, which was to discourage file sharing lawsuits against individuals, while still protecting copyright holders’ rights,” Gaudrault says.

“The manner and the timing of this action also seems unusual given that the government recently created a roadmap for addressing file sharing and copyright infringement within its legislation. Its starting point is a notification system to subscribers to discourage infringement without immediate threats of lawsuits or disclosure of their personal information. That system is not yet finalized though. In light of these factors, Voltage’s actions seem odd to us.”

While Gaudrault’s assessment is accurate, those familiar with Voltage’s actions in the United States will probably be less puzzled by this new action in Canada.

Voltage’s aim is simply. They want money – lots of it – and are hoping that their scary damages claims will terrify TekSavvy customers into quietly settling for a few thousand dollars instead of risking a very unlikely court appearance.

However, while statutory damages of US$150,000 help that process along nicely in the United States, the CAD$5,000 maximum in Canada should make people think twice before paying anything.

“From all that I’ve read, non-commercial infringement carries a damage award as low as $100 and as high as $5000 for all infringements. It also appears that the intent is to keep damage awards low in such cases,” Gaudrault explains.

The TekSavvy CEO says that the scale of the Voltage case is unprecedented so as a result the company has retained legal counsel to advise them through the process.

“Know that TekSavvy is not taking this lightly as it affects us too and as always, we believe that making your voice heard is a key component to a healthy internet in Canada. I will be monitoring this situation very closely,” Gaudrault concludes.

This is not the first time that Voltage has targeted Canadian BitTorrent users.

In September 2011 the company applied for an order from the Federal Court in Montreal which would’ve forced three Canadian ISPs – Bell Canada, Cogeco Cable Inc. and Videotron GP – to hand over the personal details of subscribers said to have unlawfully shared The Hurt Locker. However, without explanation Voltage Pictures dropped that lawsuit in March 2012.

Concerned TekSavvy users can find the Copyright FAQ here and further information on recent changes in Canadian Copyright Law here.

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