TorrentFreak can now reveal that the shutdown of TVAddons had nothing to do with the US action and everything to do with a separate lawsuit filed in Canada.
The complaint against TVAddons
Two months ago on June 2, a collection of Canadian telecoms giants including Bell Canada, Bell ExpressVu, Bell Media, Videotron, Groupe TVA, Rogers Communications and Rogers Media, filed a complaint in Federal Court against Montreal resident, Adam Lackman, the man behind TVAddons.
The 18-page complaint details the plaintiffs’ case against Lackman, claiming that he communicated copyrighted TV shows including Game of Thrones, Prison Break, The Big Bang Theory, America’s Got Talent, Keeping Up With The Kardashians and dozens more, to the public in breach of copyright.
The key claim is that Lackman achieved this by developing, hosting, distributing or promoting Kodi add-ons.
A total of 18 major add-ons are detailed in the complaint including 1Channel, Exodus, Phoenix, Stream All The Sources, SportsDevil, cCloudTV and Alluc, to name a few. Also under the spotlight is the ‘FreeTelly’ custom Kodi build distributed by TVAddons alongside its Kodi configuration tool, Indigo.
“[The defendant] has made the [TV shows] available to the public by telecommunication in a way that allows members of the public to have access to them from a place and at a time individually chosen by them…consequently infringing the Plaintiffs’ copyright…in contravention of sections 2.4(1.1), 3(1)(f) and 27(1) of the Copyright Act,” the complaint reads.
The complaint alleges that Lackman “induced and/or authorized users” of the FreeTelly and Indigo tools to carry out infringement by his handling and promotion of infringing add-ons, including through TVAddons.ag and Offshoregit.com, in contravention of sections 3(1)(f) and 27(1) of the Copyright Act.
“Approximately 40 million unique users located around the world are actively using Infringing Addons hosted by TVAddons every month, and approximately 900,000 Canadian households use Infringing Add-ons to access television content. The amount of users of Infringing add-ons hosted TVAddons is constantly increasing,” the complaint adds.
To limit the harm allegedly caused by TVAddons, the complaint asked for interim, interlocutory, and permanent injunctions restraining Lackman and associates from developing, promoting or distributing any of the allegedly infringing add-ons or software. On top, the plaintiffs requested punitive and exemplary damages, plus costs.
The interim injunction and Anton Piller Order
Following the filing of the complaint, on June 9 the Federal Court handed down a time-limited interim injunction against Lackman which restrained him from various activities in respect of TVAddons. The process took place ex parte, meaning in secret, without Lackman being able to mount a defense.
The Court also authorized a bailiff and computer forensics experts to take control of Internet domains including TVAddons.ag and Offshoregit.com plus social media and hosting provider accounts for a period of 14 days. These were transferred to Daniel Drapeau at DrapeauLex, an independent court-appointed supervising counsel.
The order also contained an Anton Piller order, a civil search warrant that grants plaintiffs no-notice permission to enter a defendant’s premises in order to secure and copy evidence to support their case, before it can be destroyed or tampered with.
The order covered not only data related to the TVAddons platform, such as operating and financial details, revenues, and banking information, but everything in Lackman’s possession.
The Court ordered the telecoms companies to inform Lackman that the case against him is a civil proceeding and that he could deny entry to his property if he wished. However, that option would put him in breach of the order and would place him at risk of being fined or even imprisoned. Catch 22 springs to mind.
The Court did, however, put limits on the number of people that could be present during the execution of the Anton Piller order (ostensibly to avoid intimidation) and ordered the plaintiffs to deposit CAD$50,000 with the Court, in case the order was improperly executed. That decision would later prove an important one.
The search and interrogation of TVAddons’ operator
On June 12, the order was executed and Lackman’s premises were searched for more than 16 hours. For nine hours he was interrogated and effectively denied his right to remain silent since non-cooperation with an Anton Piller order amounts to contempt of court. The Court’s stated aim of not intimidating Lackman failed.
The TVAddons operator informs TorrentFreak that he heard a disturbance in the hallway outside and spotted several men hiding on the other side of the door. Fearing for his life, Lackman called the police and when they arrived he opened the door. At this point, the police were told by those in attendance to leave, despite Lackman’s protests.
Once inside, Lackman was told he had an hour to find a lawyer, but couldn’t use any electronic device to get one. Throughout the entire day, Lackman says he was reminded by the plaintiffs’ lawyer that he could be held in contempt of court and jailed, even though he was always cooperating.
“I had to sit there and not leave their sight. I was denied access to medication,” Lackman told TorrentFreak. “I had a doctor’s appointment I was forced to miss. I wasn’t even allowed to call and cancel.”
In papers later filed with the court by Lackman’s team, the Anton Piller order was described as a “bombe atomique” since TVAddons had never been served with so much as a copyright takedown notice in advance of this action.
The Anton Piller controversy
Anton Piller orders are only valid when passing a three-step test: when there is a strong prima facie case against the respondent, the damage – potential or actual – is serious for the applicant, and when there is a real possibility that evidence could be destroyed.
For Bell Canada, Bell ExpressVu, Bell Media, Videotron, Groupe TVA, Rogers Communications and Rogers Media, serious problems emerged on at least two of these points after the execution of the order.
For example, TVAddons carried more than 1,500 add-ons yet only 1% of those add-ons were considered to be infringing, a tiny number in the overall picture. Then there was the not insignificant problem with the exchange that took place during the hearing to obtain the order, during which Lackman was not present.
Clearly, the securing of existing evidence wasn’t the number one priority.
And the problems continued.
No right to remain silent, no right to consult a lawyer
The Anton Piller search should have been carried out between 8am and 8pm but actually carried on until midnight. As previously mentioned, Adam Lackman was effectively denied his right to remain silent and was forbidden from getting advice from his lawyer.
None of this sat well with the Honourable B. Richard Bell during a subsequent Federal Court hearing to consider the execution of the Anton Piller order.
“It is important to note that the Defendant was not permitted to refuse to answer questions under fear of contempt proceedings, and his counsel was not permitted to clarify the answers to questions. I conclude unhesitatingly that the Defendant was subjected to an examination for discovery without any of the protections normally afforded to litigants in such circumstances,” the Judge said.
“Here, I would add that the ‘questions’ were not really questions at all. They took the form of orders or directions. For example, the Defendant was told to ‘provide to the bailiff’ or ‘disclose to the Plaintiffs’ solicitors’.”
Evidence preservation? More like a fishing trip
But shockingly, the interrogation of Lackman went much, much further. TorrentFreak understands that the TVAddons operator was given a list of 30 names of people that might be operating sites or services similar to TVAddons. He was then ordered to provide all of the information he had on those individuals.
Of course, people tend to guard their online identities so it’s possible that the information provided by Lackman will be of limited use, but Judge Bell was not happy that the Anton Piller order was abused by the plaintiffs in this way.
“I conclude that those questions, posed by Plaintiffs’ counsel, were solely made in furtherance of their investigation and constituted a hunt for further evidence, as opposed to the preservation of then existing evidence,” he wrote in a June 29 order.
But he was only just getting started.
Plaintiffs unlawfully tried to destroy TVAddons before trial
The Judge went on to note that from their own mouths, the Anton Piller order was purposely designed by the plaintiffs to completely shut down TVAddons, despite the fact that only a tiny proportion of the add-ons available on the site were allegedly used to infringe copyright.
“I am of the view that [the order’s] true purpose was to destroy the livelihood of the Defendant, deny him the financial resources to finance a defense to the claim made against him, and to provide an opportunity for discovery of the Defendant in circumstances where none of the procedural safeguards of our civil justice system could be engaged,” Judge Bell wrote.
As noted, plaintiffs must also have a “strong prima facie case” to obtain an Anton Piller order but Judge Bell says he’s not convinced that one exists. Instead, he praised the “forthright manner” of Lackman, who successfully compared the ability of Kodi addons to find content in the same way as Google search can.
So why the big turn around?
Judge Bell said that while the prima facie case may have appeared strong before the judge who heard the matter ex parte (without Lackman being present to defend himself), the subsequent adversarial hearing undermined it, to the point that it no longer met the threshold.
As a result of these failings, Judge Bell declared the Anton Piller order unlawful. Things didn’t improve for the plaintiffs on the injunction front either.
The Judge said that he believes that Lackman has “an arguable case” that he is not violating the Copyright Act by merely providing addons and that TVAddons is his only source of income. So, if an injunction to close the site was granted, the litigation would effectively be over, since the plaintiffs already admitted that their aim was to neutralize the platform.
If the platform was neutralized, Lackman could no longer earn money from the site, which would harm his ability to mount a defense.
“In considering the balance of convenience, I also repeat that the plaintiffs admit that the vast majority of add-ons are non-infringing. Whether the remaining approximately 1% are infringing is very much up for debate. For these reasons, I find the balance of convenience favors the defendant, and no interlocutory injunction will be issued,” the Judge declared.
With the Anton Piller order declared unlawful and no interlocutory injunction (one effective until the final determination of the case) handed down, things were about to get worse for the telecoms companies.
They had paid CAD$50,000 to the court in security in case things went wrong with the Anton Piller order, so TVAddons was entitled to compensation from that amount. That would be helpful, since at this point TVAddons had already run up CAD$75,000 in legal expenses.
On top, the Judge told independent counsel to give everything seized during the Anton Piller search back to Lackman.
But things were far from over. Within days, the telecoms companies took the decision to the Court of Appeal, asking for a stay of execution (a delay in carrying out a court order) to retain possession of items seized, including physical property, domains, and social media accounts.
Mid-July the appeal was granted and certain confidentiality clauses affecting independent counsel (including Daniel Drapeau, who holds the TVAddons’ domains) were ordered to be continued. However, considering the problems with the execution of the Anton Piller order, Bell Canada, TVA, Videotron and Rogers et al, were ordered to submit an additional security bond of CAD$140,000, on top of the CAD$50,000 already deposited.
So the battle continues, and continue it will
Speaking with TorrentFreak, Adam Lackman says that he has no choice but to fight the telcoms companies since not doing so would result in a loss by default judgment. Interestingly, both he and one of the judges involved in the case thus far believe he has an arguable case.
Lackman says that his activities are protected under the Canadian Copyright Act, specifically subparagraph 2.4(1)(b) which states as follows:
A person whose only act in respect of the communication of a work or other subject-matter to the public consists of providing the means of telecommunication necessary for another person to so communicate the work or other subject-matter does not communicate that work or other subject-matter to the public;
Of course, finding out whether that’s indeed the case will be a costly endeavor.
“It all comes down to whether we will have the financial resources necessary to mount our defense and go to trial. We won’t have ad revenue coming in, since losing our domain names means that we’ll lose the majority of our traffic for quite some time into the future,” Lackman told TF in a statement.
“We’re hoping that others will be as concerned as us about big companies manipulating the law in order to shut down what they see as competition. We desperately need help in financially supporting our legal defense, we cannot do it alone.
“We’ve run up a legal bill of over $100,000 to date. We’re David, and they are four Goliaths with practically unlimited resources. If we lose, it will mean that new case law is made, case law that could mean increased censorship of the internet.”
Given TVAddons’ line of defense, the nature of both the platform and Kodi addons, and the fact that there has already been a serious abuse of process during evidence preservation, this is now one of the most interesting and potentially influential copyright cases underway anywhere today.