In TekSavvy-Voltage ruling, Federal Court champions privacy

voltage-productionsVoltage talent were so excited about Thursday’s decision they took their clothes off

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TekSavvy ordered to ID alleged movie downloaders: Voltage Pictures targets 2,000 customers of internet service provider — Canadian Press via cbc.ca, Feb 21, 2014

Court orders Canadian ISP to reveal customers who downloaded movies — Globe and Mail, Feb 21, 2014

Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits — Michael Geist blog post, Feb 20, 2014

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[Feb 27: a few minor edits and additions]

You may have noticed something uneven about the press coverage of this week’s Federal Court decision on Voltage’s motion to get the contact info of 2,000 TekSavvy subs. The headlines made it all about the order to disclose and the prospect of a lot of personal information being revealed.

That wasn’t and isn’t the story, for two notable reasons. One, the order was pretty much inevitable; two, the order was hedged with unprecedented safeguards directed at both copyright trolling and end-user privacy. Continue reading

Movie IP vs privacy: Voltage hands Federal Court big dilemma (3)

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(continues from previous post…)

Counsel for TekSavvy in a strong finish

After Zibarras was given time to address Fewer’s arguments with further dramatic rejoinders (opposing counsel’s views could make Canada a “haven for piracy”), the floor went to TekSavvy’s counsel, Nick McHaffie.

McHaffie had by this point received a number of nods from the bench as to his role that day. Several of the nods went to the fence posts, so by the time he rose, we had a pretty good idea of what was coming – especially given the awkward position TekSavvy found itself in as a “non-party.” Continue reading

Movie IP vs privacy: Voltage hands Federal Court big dilemma (2)

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In my previous post, I predicted that the presiding judge (Kevin Aalto, technically a prothonotary of the Federal Court) will ultimately grant the Voltage motion requesting that he issue a disclosure order to TekSavvy. Over at the HuffPost, that opinion was seen to be part of a larger body of current opinion:

TekSavvy File-Sharing Lawsuit: Voltage Pictures Will Likely Get Their Way In Court, Observers Predict

[…] The case is being closely watched by consumers’ advocates because it is one of the first of its kind in Canada and the very first since the federal government instituted a new copyright law last year […]. A “court order looks inevitable,” tech blogger and occasional HuffPost contributor David Ellis wrote on his blog.

scales-of-justiceWhile that prediction may very well come true, it’s important to understand two things about the way the case unfolded in the courtroom last week. First, Justice Aalto was clearly torn about the complex issues raised by the motion to disclose, and in no hurry to get to the next step. Second, Nick McHaffie, counsel for TekSavvy, made a surprisingly strong, even vehement case for attaching what he saw as crucial safeguards to any order – the  term of art for those safeguards being “fence posts.” (I was glad to see the HuffPost also cited Teresa Murphy’s views on the case, as she works tirelessly on cases like this to keep information flowing and people connected.) Continue reading

Movie IP vs privacy: Voltage hands Federal Court big dilemma (1)

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TekSavvy CEO Marc Gaudrault, COO Pierre Aubé and marketing director Tina Furlan talking to a reporter. The ISP’s counsel Nicholas McHaffie shed his robes after stealing the limelight in the last half hour of Tuesday’s hearing at the Federal Court of Canada.

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Correction (June 27) concerning BMG Canada Inc. v. John Doe. In my haste to get this post finished, I misrepresented the import of this well-known precedent for the Voltage case in the particular context of Tuesday’s hearing. My thanks to Nick McHaffie and Marc Gaudrault for bringing this inaccuracy to my attention. See revised passages below in the para starting “To no one’s surprise…” (section 2, Chicken/egg).

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<< Executive summary >>

Opening: “I’ve done my reading, but I’m not particularly tech savvy. […] It’s unlikely I will render a decision at the end of the hearing today.” —Justice Kevin Aalto.

“Copyright has been literally unenforced forever.” –Voltage counsel James Zibarras.

“We have a record of Voltage using speculative invoicing in the United States.” –David Fewer, counsel for intervenor CIPPIC.

“How can John Does come forward […] without thereby accepting guilt?” –TekSavvy counsel Nicholas McHaffie.

Closing: “It has been a very interesting day.” –Justice Aalto.

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Canada’s first mass piracy lawsuit is shaping up to be a mess.

aalto-2Court order looks inevitable. You heard it here first: I predict the presiding judge will accede to Voltage’s request to issue an order requiring TekSavvy to divulge the names and addresses of 1,000 or more subscribers who are suspected infringers. But the case is so fraught with issues – and a bizarre Catch-22 – he will feel obliged to erect a series of Draconion “fence posts” around the order to prevent the plaintiff from lapsing into one of its old defendant extortion schemes. (For anyone who fell behind in their reading, check out the posts I wrote starting in December – Infringement assault on TekSavvy: Voltage Trolls come north. The latest motions, affadavits, cross-examinations and other paperwork are posted over at the TekSavvy site.) Continue reading

CIPPIC posts 2 damning affidavits in Voltage “piracy” fight

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We used to call it “Voltage vs TekSavvy.”  As of now, let’s make that Voltage vs CIPPIC, in what’s shaping up to be the “piracy” battle of the year. (For the backstory, see my previous posts, here, here and here.)

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This case has racked up more than its fair share of ironies.

First, the plaintiff is a small US film studio that has brought its lawsuit in the guise of copyright infringement, against as many as 1,000 John and Jane Doe’s. For everyone else, the case has raised far more important questions about the right to online privacy and anonymity; the role of ISPs in defending these rights; and the appropriate disposition of mass lawsuits carried out by copyright trolls. In other words, if you’re going to call this stuff “piracy”… please use scare quotes. Continue reading

CIPPIC wins full intervenor status in Voltage-TekSavvy case

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(Updated Friday with some corrections and minor edits.)

Score another one for the public interest.

On Wednesday, Federal Court Prothonotary Mireille Tabib said yes to CIPPIC’s request to intervene in the Voltage “piracy” case. This order is very positive news in several respects.

(The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic describes its mission in part as working “to fill voids in public policy debates on technology law issues, ensure balance in policy and law-making processes, and provide legal assistance to under-represented organizations and individuals on matters involving the intersection of law and technology.”)

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1 – Full intervenor status. The Federal Court has put no restraints on CIPPIC’s participation – meaning they will be allowed to cross-examine the plaintiff’s witnesses, a big tactical advantage. The one issue tabled for the hearing judge’s future consideration concerns possible cost awards to CIPPIC. The order sets out the following five conditions for CIPPIC’s participation:

  • CIPPIC shall be permitted to produce affidavit evidence and to cross-examine the Plaintiff’s affiant.
  • CIPPIC shall be permitted to make arguments on points of law.
  • The rights of CIPPIC to seek or its liability to be made subject of any order for costs on the motion shall be determined by the Judge seized of the motion.
  • CIPPIC shall be served with all materials filed and to be filed by other parties, non-party respondents and Interveners, if any.
  • The schedule for proceeding on the Plaintiff’s motion pursuant to Rule 238 of the Federal Courts Rules shall be as set out in sub-paragraph 3 of the Order of January 18, 2013. Continue reading

Voltage vs TekSavvy: are we fighting the right battles?

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A version of this post was published yesterday at Cartt.ca.

Piracy is a lot like religion and politics. It tends to polarize opinion and get in the way of finding common ground for thoughtful discussion. That’s the pattern we’ve seen in Voltage Pictures’ demand for information from TekSavvy about putative pirating of their movies. Clashes between the studio and the ISP have touched off a rancorous debate that has divided even like-minded members of the pro-Internet community.

The single issue that has most divided the pundits concerns whether or not TekSavvy CEO Marc Gaudrault let down his customers and the public interest by not opposing the Voltage motion from the get-go. Most of the arguments share one principal concern: that opposing the Voltage motion would have been the most effective and maybe only way to protect customer privacy, as well as to ward off future suits of this kind.

A lot of ink has now been spilt on this point, especially in light of the fact that Marc and his lawyers arrived at their decision after considering factors that remain confidential. Nevertheless, some further comment seems to be in order.

privacy-iconPutting privacy in perspective

First of all, I’m no longer convinced that the biggest public interest issue in this case is privacy, a sentiment I know will not win much sympathy. For one thing, I believe Marc did his best to protect his customers’ privacy by giving everyone, especially those on the charge list, advance notice despite it not being a legal requirement. TekSavvy has also spent a great deal of time and money weeding out numeric IPs that didn’t match an account, in an attempt to protect otherwise innocent customers. Continue reading

TekSavvy customers win big in Federal Court today

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For anyone who hasn’t had time to read through my lengthy Friday post, our rich-media associate Devin has recorded an easy-listening audio version, which is available at the press of a button right here… [haiku url=”post-voltage-jan15r.mp3″]

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Correction appended.

Score another win for TekSavvy – and its customers. Especially its customers.

After weeks of getting bashed in the blogosphere, TekSavvy emerged from the hearing today in the Federal Court with a big bright check-mark against the privacy problem, CIPPIC’s involvement, the mapping of IPs against human beings, and the what-have-you-done-for-us-lately problem. Continue reading