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.

Moreover, the Globe and Mail pronouncement that the ruling “has all sides claiming victory” is just unhelpful sensationalism. Voltage was victorious because it got the order it’s been seeking for over a year. TekSavvy was also victorious because it got everything it wanted and more: court measures to hedge in Voltage so it wouldn’t abuse innocent subscribers or the court process, as well as payment of its costs, with a stipulation that Voltage must pay those costs before it starts firing off letters to alleged infringers. Based on public discussions last year, those costs are probably well north of the $200,000 mark and are going to keep climbing as TSI accedes to the order and talks to its legal team. (I’ve uploaded the decision in pdf here.)

Friend and fellow wonk Teresa Murphy pointed me to an even more incompetent story that ran in the Vancouver Sun under the headline: “Illegal downloaders in federal court’s crosshairs.” Nice touch, the sniper rifle, except the crosshairs were trained on Voltage, not subscribers yet to be proven guilty of anything. Teresa wrote in a biting comment, which starts off: “Multiple factual inaccuracies in this story, as well as conveniently leaving information out which would skew the entire tone of the article away from being pro-Canipre/pro-Voltage.

TekSavvy’s Tina Furlan finds the ruling “very positive”

Tina-2I spoke on Friday to Tina Furlan, TSI’s Director of Marketing and Communications (who happens to figure in my previous post on the ISP’s foray into onliner research). Tina agreed that the sensible way to look at the ruling was (as Geist put it) a “split” decision. Or to paraphrase, one that works very hard to address all the important public policy issues, with an end-result that’s a remarkable feat of balance given how polarized opinions are on so-called piracy, privacy and the issues related thereto.

Tina made no bones about how positive the ruling is, and how proud she and her colleagues feel that they took the difficult but ultimately ethical high road as a non-party to the case. You may recall TekSavvy elected not to object to the original Voltage motion, a position that got them slammed by a lot of commenters in the blogosphere and discussion threads. The gamble, to the extent there was one, has paid off handsomely for everyone concerned about the damage Voltage’s win might do. Thanks to the terms of the ruling, the Court has ensured that:

  1. copyright trolling and the “speculative billing” business model, for which Voltage and other producers have been harshly criticized in US courts, will now be much less attractive in Canada;
  2. end-user privacy will be the subject of elaborate safeguards, not only in this case but as a matter of precedent in future cases of this kind;
  3. Voltage will be prevented from indulging in deception or extortion as the whole proceeding will henceforth be supervised by a case management judge;
  4. and the plaintiff will have to pay costs before it can even collect the disputed TSI subscriber information.

Tina reminded me that their counsel, Nick McHaffie, addressed the Court at length on the subject of how the ISP’s customers were going to be protected from unwarranted invasions of privacy. Protecting its customers was always a major goal, perhaps the major goal, in this proceeding for TSI. And even though CIPPIC’s counsel, David Fewer, was acting not on behalf of TSI but as a friend of the court in his intervention (hence the term “amicus” brief), almost everything he said and wrote was designed to keep Voltage in check. And the ruling makes it clear CIPPIC was heard (its arguments are referenced on at least 16 pages).

In the circumstances, it’s understandable that Tina and her colleagues were a little disappointed by the initial reactions to the ruling on Friday. Except, of course, that not many people will have read the ruling itself, let alone have the background to size it up fairly. Nevertheless, to get a sense of what the Court’s priorities were, you only had to get as far as the cover page of the 59-page document, where you read this highlighted quotation:

“. . . the rise of so-called ‘copyright trolls’ — plaintiffs who file multitudes of lawsuits solely to extort quick settlements — requires courts to ensure that the litigation process and their scarce resources are not being abused.”

ISPs as the inevitable bad guys

bellcanadalogo-2Like Tina, I’ve been puzzled by how this story has landed, though I have a theory as to why. For anyone unfamiliar with the background, including the jurisprudence surrounding the BMG case, TekSavvy is easy to cast by default as either the messenger with disappointing news, or the ISP that just didn’t fight hard enough to make the motion for an order go away. (In BMG Canada Inc. v Doe, decided in 2005, the Court ruled that the plaintiff had only to show it had a bona fide case, rather than having to prove a prima facie case, since this higher standard would have effectively deprived the plaintiff of a remedy. In other words, by asking the plaintiff to adduce evidence it could only get by obliging the ISP to disclose it, before so obliging the ISP, the Court would have thrown the plaintiff into an absurd Catch-22. That is the reasoning the Federal Court used here in deciding to order TekSavvy to disclose.)

Worse still, TekSavvy is an ISP and to the uninitiated is tarred with the same brush as the incumbents: they don’t care about their customers, so if personal information gets handed over, then it’s somehow TekSavvy’s fault. Of course, it also goes without saying that any of the big press organs that happen to be owned in whole or in part by, say, BCE, are very unlikely to play down the infringement angle in favor of the trolling angle.

I was reminded of this in my local Starbucks yesterday, when I struck up a conversation with one of the baristas about the case. Without any hesitation, she blurted out “Am I ever glad I’m not one of TekSavvy’s customers!” My defensive reaction cut no ice. As with so many such stories, the devil’s in the details and the details are much too arcane to influence the headline-oriented judgments. And yet, the ruling is at pains in several passages to explain two things. First, for all that privacy is important, it’s not important enough to deprive owners of IP of relief when that IP is infringed. Second, the Court is bound by precedent, and in this instance the famous BMG ruling couldn’t simply be set aside.

But that’s precisely why this ruling is such a well-crafted piece of public policy. It reviews at great length similar cases not only in Canada but in the US and the UK as well, and one of the main findings is the extent to which plaintiffs in these cases have abused the court’s resources; abused due process; tried to make suspected infringers think they were already considered guilty; or demanded egregiously unreasonable sums in compensation for their suspected infringement.

The order itself says it all

At the end of the day, just look at the order itself to get a sense of why this is a very positive decision. It comprises 13 provisions. Of those 13, all but the 2nd are devoted to safeguarding due process, the privacy rights of the alleged infringers and the integrity of the court process. Thus:

  • the entire action and any proceedings arising from it are to be case-managed by a specially appointed judge of the Federal Court;
  • all participants will have the right to consult the case management judge, including any of the alleged infringers;
  • TekSavvy’s costs are to be paid by Voltage before Voltage is provided with any of the disputed subscriber information (defined as “all reasonable legal costs, administrative costs and disbursements“);
  • any correspondence sent to alleged infringers must be approved by the Court beforehand, and any such correspondence “shall clearly state in bold type that no Court has yet made a determination that such Subscriber has infringed or is liable in any way for payment of damages;”
  • the subscriber information disclosed to Voltage must contain only names and mailing addresses, and not include phone numbers or email information, and any information thus disclosed must remain strictly confidential and out of the public domain.

Despite what you hear every day, privacy does not seem to be dead in this country. But there’s another angle the pro-Internet community should be very happy about.

As we’ve discussed, the Court along with many other right-thinking individuals has been deeply concerned about the issue of copyright trolling, especially as it has developed in various US jurisdictions. In addition to privacy safeguards for end-users and costs for TekSavvy, the ruling also has something to make other ISPs breath easier. That is the likelihood that low statutory penalties, along with the award of costs and elaborate privacy safeguards, will make the troll business much less attractive in Canada. No plaintiff will be allowed by the courts in the future to simply fire off extortion letters with impunity, in the hopes of embarrassing some of the intended targets into paying up (a technique that has worked well for pornographers, who assume alleged infringers will pay rather than be exposed for their unseemly viewing habits).

Furthermore, there seems to be some prospect that Voltage may find what it nets from statutory penalties to be a losing proposition, after paying TekSavvy’s costs and their own legal fees. In other words, this split victory could still turn out entirely in favor of TekSavvy and its customers, with the questions about the extent of infringement, if any, left unresolved for now.

The backstory in my 10 previous posts on Voltage

If having read this far you’re still curious about the full story, which goes back over a year, to December 2012, then I invite you to look at my extensive previous coverage of the Voltage suit. It begins with the two posts I wrote on December 12 and 17, 2012 (Infringement assault on TekSavvy: Voltage Trolls come north, and Watching Voltage and TekSavvy duke it out in Federal Court).

And it stretches all the way to last summer, in a trio of posts that went up on June 26, July 2 and July 3. The title I gave those three posts – Movie IP vs privacy: Voltage hands Federal Court big dilemma – says a lot about the outcome. This week’s ruling was essentially about the Court’s attempt to strike the right balance in the ongoing conflict between the rights of IP owners and the privacy rights of end-users. Maybe we should be thanking Voltage for helping to foster such a salutary and progressive legal precedent.

D.E.