Infringement assault on TekSavvy: Voltage Trolls come north

Mandatory mittens for men on casual Fridays has been shown to reduce sexual harrassment at Voltage*

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Some updates and changes (Thursday, December 13)

Monday’s court hearing. Voltage has managed to schedule a hearing at the Federal Court for Monday, December 17, which leaves little time for targeted TekSavvy subscribers to organize their defence. TekSavvy couldn’t notify these customers until it had churned through a huge pile of logs, in order to correlate subscribers with the thousands of numeric IP addresses Voltage dumped on them. And it wasn’t until December 7 that TekSavvy was served with the final Notice of Motion, the document that compels TekSavvy to attend at court where, Voltage hopes, it will be ordered to turn over all relevant customer information so the bullying can proceed.

Many people I’ve talked to seem to have missed the crucial point that TekSavvy itself is not a defendant in this case as it is not liable for any putative infringing activity on its network. In Canada, when a customer requests a file from, say, The Pirate Bay, and the customer’s ISP simply provides the platform over which to have the file delivered, that ISP is deemed to be acting as a mere carrier. The ISP is not deemed to be a “user” nor considered to be “authorizing” the download. Hence TekSavvy is not a defendant in the Voltage claim. I raise this point simply so that interested parties, especially possible defendants, are clear on TekSavvy’s legal standing in this action.

Here’s a key passage from an email TekSavvy sent out today to all its subscribers. It addresses the concern of some customers that they may have missed the notification letter sent out to potential defendants:

“We have set up a notification system in the customer portal to let our customers know if they were on the list. Please visit My World on the TekSavvy website to verify this information. If your IP address is on the list, please email support@teksavvy.com for a copy of your email, with full details. To see the communication that was sent visit [this page].”

Logistics. Contrary to what I had heard, the hearing is apparently scheduled this Monday for 9:30 am, not 10 am. The Federal Court is located at 180 Queen Street West in Toronto. I’m planning to attend to see how the court handles our “modernized” copyright legislation. As TekSavvy is not in a position to provide legal advice, it is recommending to anyone who is a potential defendant to seek independent counsel. In those shoes, I would certainly try to attend Monday’s hearing (though coming from me that’s not legal advice).

DPI and Canipre. I talked yesterday with Tina Furlan, TSI’s Director of Marketing & Communications. She reminded me of something you may have read about on the company site: “TekSavvy does not monitor our customers’ use of the Internet and has no involvement in collecting the IPs presented in this request by Voltage.” Tina put this into sharper focus: unlike all the incumbent ISPs, TSI does not make use of deep packet inspection technology, which has given us not only abusive throttling by Bell and Rogers, but also allowed them to invade the privacy of its customers by peering inside their data packets.

You may have also read that the firm responsible for gathering all the “intelligence” on TSI’s subs on behalf of Voltage is Montreal-based Canipre. See that screen grab just above? That’s from the Canipre splash page (the name is a contraction of “Canadian intellectual property rights enforcement”). We, the audience for entertainment, which would cover just about everybody, apparently aren’t “rational.” No wonder the Content Cartel is having such a tough time fighting us. That epithet makes “pirate” and “bandwidth hog” look like effusive praise. Maybe Canipre is trying to tell us something… how about a good infringement defence would be temporary insanity? From elsewhere on the site:

Better ride us hard and put us away wet before Anonymous launches its DDoS attack.

[*Intended as parody only, without prejudice to any party in the domain of discourse]

Boycott launched against Voltage*

Since this story broke Monday, the hostility expressed toward the Voltage Trolls has been surpassed only by the sheer confusion about what the fuck is going on. Posters are scratching their heads over why Voltage is doing this, what to do if a “settlement” letter arrives, how much our courts may allow in damages, what personal information could get compromised, what tools are available to anonymize numeric IPs, etc.

At DSLReports, one positive development was unfolding. The man caught in the middle – TekSavvy CEO Marc Gaudrault – has been there in the trenches trying to shed light on the news. Marc was also promising, as he had on his blog, that he would stand by his customers unless and until the court obliges TekSavvy to give up their personal information.

Voltage is behaving just like the MPAA and RIAA have done over the last several years: waged a scorched-earth bullying war on customers instead of making serious attempts to accommodate new marketplace realities, while evincing a sense of self-importance about their precious content that takes the breath away. Last January, at the height of the outrage over SOPA, MPAA chief Chris Dodd took the bullying to new levels when he threatened to cut off Hollywood contributions to politicians who didn’t stand up for that universally reviled piece of legislation – which even knuckle-dragging Republicans abandoned in droves. [*Sorry, more parody.]

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Some resources and commentary

1 – Even Harper won’t like it. Michael Geist posted a primer on Canada’s new copyright régime a couple of weeks before this action became public: Why Liability Is Limited: A Primer on New Copyright Damages as File Sharing Lawsuits Head To Canada. As Michael points out, Voltage’s action flies in the face of what the Harper government has said about its own copyright legislation. From the mouth of Minister Paradis:

“While our government knows that the overwhelming majority of Canadians are law-abiding, we are concerned about the threat of major penalties that hang over Canadians who infringe copyright for non-commercial purposes(emphasis added).

2 – Court calls it extortion. Pete Nowak’s post today is Bring on the Hollywood extortion… ahem, lawsuits. Pete raises another crucial point about what Judge Otis D. Wright, from the Central District of California, wrote previously about the Voltage Trolls:

“The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial” (emphasis added).

3 – Why are you still with Bell? TekSavvy has posted a set of Copyright FAQs here. The first question says a lot about the TekSavvy culture: What is TekSavvy doing to protect its customers’ personal information? How about the incumbents? What did Bell, Cogeco and Vidéotron do when they heard Voltage knocking at their door a year ago?

With respect to the court order, Geist questioned whether the three affected ISPs did enough to ensure the interests of their subscribers. He said during recording industry lawsuits in the past, ISPs raised the concerns of their subscribers. “These three seemingly did nothing at all,” he said, adding that they could have at least notified subscribers and given the opportunity to get advice from a lawyer” (emphasis added).

4 – Exploiting the poor and ignorant. Karl Bode has posted a comment entitled Copyright Troll Voltage Pictures Takes Aim at TekSavvy: Brings Copyright Protection Racket Circus to Canada. As Bode explains, part of what makes this extortion racket work is victimizing end-users who lack the resources to defend themselves:

“Voltage has been widely criticized for operating what’s essentially a protection racket (pay up and you won’t get hurt) that targets users they know can’t afford to adequately defend themselves.

I’ve no doubt that’s true, although I believe the Voltage Trolls are exploiting something much more widespread: the public’s inability to understand even the most basic elements of copyright law in general and ours in particular (of course added on to universal ignorance about the tech side). No wonder. Take, for example, the Canadian copyright collective known as SOCAN, which collects and distributes music royalties. But for composers, songwriters and publishers, not performers – even though it does so for the “public performance” of music, which includes places that aren’t actually public, as well as for music distributed via “communication by telecommunication,” which covers broadcasting and the Internet, but not recordings. And so on.

And talk about the wheels of justice turning slowly. I was involved in writing the first Statement of Fact for Tariff 22, aka the “Internet tariff.” That was 1995, with the Web just about to take off. It then took another nine years before issuance of the 2004 Supreme Court decision on an important technicality concerning whether ISPs could be held liable along with other parties for infringing activities (the Supremes said “no”). One thing I learned in my encounters with this stuff is a little knowledge is a dangerous thing: so caveat lector.

 5 – Free legal help. Bode has a useful tip for anyone needing legal help. You can get 30 minutes of free advice from the Law Society of Upper Canada. Yes, you read that right – “free” and “law” in the same sentence. Though I’ll bet you’d have second thoughts if it was called the Law Society of Ontario. NB: Provision of this link should not be construed in any way as constituting legal advice… Okay, okay, the lawyer jokes are over.

6 – Becoming anonymous online. Two years ago, the Pew Internet Project published the results of its global survey of experts on the future of the Internet, which on that round included a question about online anonymity. I blogged my answer on this issue in January of 2010 (as a participant, I’ve written numerous posts on these surveys: search under the “Pew” category). Here’s part of what I said:

“The battle over online anonymity is much like the tug-of-war between large copyright holders and online “pirates.” It’ll never end. Several kinds of people feel they have too much at stake to let other people hide online: besides movie studios and record labels, that would include law enforcement officials, national security agencies and marketers of all descriptions. […] As soon as one side builds a better mousetrap, the other side hacks it and the cycle starts again.”

Many of us have reasons for wanting to protect our online chatter from the many assholes who want to know what we’re up to – reasons that have nothing to do with putatively illicit file-sharing. A widely admired anonymity resource that’s been in development for the last decade or so is the Tor project. Tor is a special platform running on the public Internet that protects your transmissions using several layers of encryption. “Tor” was originally “TOR,” an acronym for “the onion router” because the layering technology used here is reminiscent of said root vegetable, no pun intended.

Self-styled Big Brothers, like the studios, have done a great job of demonizing the technologies used to do things they can’t control – which naturally includes BitTorrent. So keep in mind the Tor Project has enjoyed the support of the EFF, the US Naval Research Lab, the US State Dept and the National Science Foundation (which in the late 1980s financed the then-sole Internet backbone). In its Statement of Claim (pdf uploaded here), Voltage makes sure BitTorrent and P2P are made to look by implication like “piracy” tools:

“The Defendants are members of peer-to-peer (“P2P”) internet networks that have used the BitTorrent Protocol to copy and distribute the Works without authorization. The BitTorrent Protocol is a P2P file sharing protocol that facilitates the distribution of large amounts of data over the internet through networks” (paras 4,5).

What the studios don’t want you to know is that these tools are coming into common use in medicine, education and government services, to name a few.

7 – If you’d like to support Voltage. The would-be moguls at Voltage are claiming their thousands of non-paying fans are driving them out of business. Here’s an especially juicy passage (from para 16):

“As a direct and proximate result of their wrongful acts, the Defendants have been unjustly enriched and Voltage has suffered, and will continue to suffer, loss of revenues, proceeds and profits. The exact amount of unjust profits realized by the Defendants and profits lost by Voltage are presently unknown and cannot be readily ascertained without an accounting.”

Sorry, but the downloading of a movie without permission constitutes a “loss” to the rights holder if and only if there is a suitable opportunity cost: i.e. the downloader in question would otherwise have paid for a copy of said movie. Profits realized by Defendants? There are profits if and only if a downloader resells their unauthorized copy for a given sum and pockets said sum.

But let’s show these carpetbaggers some good old Canadian hospitality and save them some airfare. You can shore up Voltage’s sagging revenue stream by buying one of their films. Here’s a handy-dandy list of titles to add to your holiday purchases:

  • Generation Um … (2012)
  • Tucker & Dale vs Evil (2010)
  • The Whistleblower (2010)
  • True Justice: Brotherhood (2010)
  • The Third Act aka The Magic of Belle Isle (2012)
  • Breathless (2012)
  • Peace Love & Misunderstanding (2011)
  • Conviction (2010)
  • The Good Doctor (2011)
  • Faces in the Crowd (2011)
  • Rosewood Lane (2011)
  • Puncture (2011)
  • Another Happy Day aka Reasonable Bunch (2011)
  • The Barrens (2012)
  • True Justice: Lethal Justice (2010)
  • True Justice: Blood Alley (2010)
  • Killer Joe (2011)
  • Maximum Conviction (2012)
  • Fire with Fire (2012)
  • Rites of Passage (2012)
  • True Justice: Urban Warfare (2010)
  • True Justice: Deadly Crossing (2010)
  • Rites of Passage AKA Party Killers (2012)
  • Balls to the Wall (2011)
  • Sacrifice (2011)
  • Escapee (2011)

D.E.