CIPPIC wins full intervenor status in Voltage-TekSavvy case

troll-crossing***

(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.”)

cippic-privacy

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.

2 -Marc Gaudrault vindicated. Any minute now, I’m going to retire from the business of arguing that Marc did right by TekSavvy’s customers when he chose in December to push out notices rather than object to the Voltage motion. As I noted in my previous post, this decision created a deep split among pundits and commenters on discussion forums like DSLReports. Two months have gone by and CIPPIC is now officially a friend of the court in this matter. I think it’s high time we all stopped second-guessing Marc so we can focus our attention on what’s shaping up next.

3 – Milestone case. The court has made it eminently clear that this is an important case deserving of the best possible information. In his written reasons for the January 14 adjournment (issued January 31 – pdf), Judge Mandamin reiterated forcefully the points he made in his original oral comments. He notes this case is breaking new ground, with the ink barely dry on the Copyright Modernization Act. A proper airing of the issues means that the court “needs to be as informed as it can be.” His remarks sound to me as though CIPPIC is going to be given a lot of leeway in the arguments it presents.

4 – Customers protected. TekSavvy’s customers now get the benefit not only of the second adjournment, but also of the weapons CIPPIC will bring to bear on Voltage’s case. I spoke by phone today with David Fewer, CIPPIC’s lead counsel, who will be in court for the next round. He told me they will be addressing three major issues.

traffic-shaping-p2p-2One concerns the protection of anonymous speakers on the Internet, which Fewer said is inadequate in Canada as the law now stands. He noted this issue is not confined to file-sharing, indicating the adjudication of this case may have ramifications that extend well beyond copyright. Fewer’s second major issue is one we’ve heard discussed at length in the blogosphere: Voltage’s track record in the United States as a copyright troll, whose business model is based on intimidating defendants into “settlements” with no intention of bringing a bona fide case to trial.

Thirdly, Fewer will be taking a close look at the evidence gathered by Canipre, which has been putting a hard sell on its forensic services through its website. That hard sell was conspicuous by its absence in Voltage’s original motion, which says remarkably little about why the company’s technology should inspire awe. The court has already indicated it has many questions of its own about how the evidence should be treated. To cite a further passage from Mandamin’s adjournment order: “What is the link between IP numbers and the alleged copyright infringers? Is it direct or indirect? Is it a link to a device or to an individual?” 

distributel

That said, I can’t help but add a couple of observations about Michael Geist’s blog post last week on a similar and concurrent piracy case: Distributel Fights Back Against Motion to Disclose Subscriber Information in File Sharing Case. Although some are making Distributel out to be the hero of the day, it turns out Distributel had a change of heart after not objecting to the original motion to disclose, as Michael duly notes. Over at Cartt.ca, Greg O’Brien posted a detailed look at the case (here, behind paywall), which includes this comment:

According to Federal Court documents, back in November of 2012, Distributel was ordered by the court to disclose the names and addresses of customers associated with 27 different IP addresses. At that time, the company didn’t pay much attention to the motion and the subsequent court order (which are commonplace for ISPs) and provided four names associated with 11 of the IP addresses while letting the court know that the rest were unknown to them…

Both Michael and Greg provide a helpful analysis of Distributel’s reasoning in reaction to a further demand from plaintiff NGN for more customer information. Some of that reasoning overlaps what David Fewer outlined to me in our conversation today – especially the quality of the evidence and the troll’s approach to finding revenues. It’s no coincidence that here too the evidence has been provided by Canipre, which is now beginning to look like a major enabler of trolling opportunities in Canada (there are now two plaintiffs in the Distributel action: NGN Prima Productions Inc and Riding Films Inc).

One particular item in the latest Distributel motion (pdf uploaded here) echoes the concern aired in my previous post about the wider implications of this extortion racket for Canada’s smaller independent ISPs – our only hope for some consumer choice and pricing discipline in the residential broadband market. Distributel’s brief puts it thusly:

The Moving Parties’ choice to pursue independent ISP companies is unfair and adversely affects the highly-competitive market for residential Internet access services. If the public perceives their privacy rights to be diminished due to their purchase of services through a smaller company, then those customers may opt for larger companies. The perception that the subscriber may be more of a target and therefore more likely to have their privacy infringed may be enough to negatively affect consumer choice [para 72].

Amen. The US and UK are several years ahead of us in handling these en masse lawsuits, and we’ll be seeing plenty more of these in Canada before the dust settles. That’s one of the chief reasons why making TekSavvy – or any indie ISP – a whipping boy in the cause of privacy is a really bad idea.

That post of Michael’s from last week is also fascinating for the comments it attracted. What they show us first of all is how invidious comparisons made between small ISPs will prompt customers to defect. From Mary:

I think I’ll switch my ISP provider from Teksavvy to Distributel in the summer. At least Distributel is fighting for the rights of their subscribers. Teksavvy not at all. They made some deal with the trolls not to oppose their efforts to disclose subscriber information in return for a few weeks. If Teksavvy doesn’t fight back soon – they will lose a lot of customers [my emphasis].

Mary is not a policy wonk and, like most mainstreamers, isn’t going to dig into the legal subtleties before deciding to switch providers. I was relieved to see Devil’s Advocate step in with a well-grounded argument as to why Mary should be having second thoughts about defecting from TSI. Here’s a snippet:

I think you should have another look at how Teksavvy is actually handling the situation. They didn’t make any “deals” with the troll. They’ve got their customers completely in the loop, while working the court behind the scenes, with CIPPIC right there along with them, at the same time keeping their customers’ identities protected. The court, meanwhile, is not very receptive to the idea of granting Voltage the court order to release the identities of Teksavvy users. …

Discussion threads being what they are, this thread starts heading downhill pretty quickly – especially after DA recommends a blog post on the subject by one David Ellis. Cue a poster going by the handle “Eh.” This dude doesn’t mince words:

Contrary to what D.A. stated, yes, Mary, TSI *did* make a deal with the trolls to not oppose the motion in exchange for them to have time to inform their customers. They even stated this. So I don’t know what boat DA just came off of. There are a couple of ways to look it at. And I don’t at all agree with David Ellis’ rants. I’m more in tune with the way copyright lawyer, Howard Knopf, called it… A more balanced blog to read, instead of Ellis’, would be by Dwayne Winseck…

Ouch. I wonder what boat Eh just got off of (note, despite the very Canuck handle, Eh’s American dialectical usage in that double preposition: it couldn’t have been a very big boat). Apart from my hurt feelings, here’s something Eh might want to take note of. His preferred pundit is undoubtedly right about everything his pen touches. Nevertheless, you have to wonder what objective is being served by noting right in the title of a post this week about Distributel – “TekSavvy Take Notice.” Timely advice, if Marc Gaudrault had been in a coma recently.

global_usenet_traffic

Is file-sharing on the increase?

One thing has clearly changed in the battle between Big Content and the pirates. As the cases we’re seeing now in Canada indicate, individual studios and legal shops are taking up the battle just as the main industry lobbies seem to be backing off.

One thing has not changed, however, and that’s the exaggerated claims about the extent of file-sharing and the damage it causes. Take, for example, claims like “online file sharing is still growing steadily with more and more participants.” You’ll actually find that assertion right in the Wikipedia entry for the MPAA, updated this afternoon. As the editor’s “citation needed” indicates, the problem here is no supporting evidence of any kind is offered to back up this claim.

So, what gives?

Every year, Cisco updates its comprehensive survey of global IP traffic, known as the Visual Networking Index, or VNI. According to Cisco’s 2012 projections for global Internet traffic (released May 2012), file-sharing traffic is in fact growing at a projected CAGR of 26% from 2011 to 2016 (in petabytes per month; see Table 8). But in isolation, that figure is meaningless. Compare that to other traffic measures and file-sharing is slowing, not growing. Internet video traffic (all types except file-sharing) is growing at a CAGR of 34%. All other sub-segments (except VoIP) are also growing faster – including Web, email and data (35%), and online gaming (52%).

house-of-cards

While file-sharing is certainly not disappearing, there’s one big trend that cuts into the underlying motivation to share: having popular content available online at reasonable prices without unreasonable waiting periods. Apple’s iTunes Store, along with Amazon and other major Web distributors, have certainly gone a long way towards making illicit file-sharing too much of a bother for many people, now that they have decent alternatives.

We also have shit disturbers out there like Netflix that are standing video programming on its head. The Web’s most popular streaming service plonked down $100 million to buy the exclusive rights to 26 episodes of House of Cards, exec-produced by David Fincher and starring Kevin Spacey. The big news, of course, was the release of all 13 first-season episodes on February 1. There goes scheduling, lead-ins, counter-programming, appointment TV – all the staples that have kept the networks in control and making money for decades.

None of this means that legacy media are about to disappear. They will continue to fight off the disruptors as best they can, for as long as they can – or just buy them outright. But the trend we’ve started to see in Canada – mass infringement litigation that isn’t really litigation – has come from a corner of the industry that doesn’t fit any of the usual paradigms. Big Content may actually be more worried these days about Netflix than about the Pirate Bay, leaving an opening for Voltage, NGN and other small copyright trolls determined to carve out a special niche for themselves in the media landscape. How ironic Canadians are now confronted with this strange new creature, just as we’ve put the finishing touches on our “modernized” approach to copyright.

D.E.