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.