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.
While 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.)
Last time, I tried to frame the discussion around three questions that formed as the proceeding unfolded: i) the conspicuous absence of any defendants or counsel for defendants; ii) the Catch-22 pitting the plaintiff’s right to demand evidence against the defendants’ right to privacy, not to mention the presumption of innocence; and iii) an apparent role reversal between counsel for the non-party (TSI) and counsel for court friend CIPPIC.
Zibarras chews up the scenery
Voltage counsel James Zibarras made no bones about his way of reaching a compromise: just grant the order already. In making his argument to the court, Zibarras explicitly foresaw as one outcome the issuance of demand letters to all the named defendants, rather than (or possibly in addition to) returning to court. He used several tactics to clear the path, including an attempt to argue away several possible defences, all of which he characterized as “pure speculation.” One of these was the big hot-button issue of privacy.
Zibarras argued for setting privacy concerns aside on at least four grounds: i) the act of “making available” on a P2P network renders the expectation of privacy unreasonable, since a defendant is essentially “inviting people into his or her computer;” ii) no great social stigma attaches to the revelation that a person has downloaded a movie, except perhaps when the movie in question is pornographic; iii) copyright “has been literally unenforced forever,” thereby producing a sense of self-entitlement in many people, who see free access to IP as a kind of online right; and iv) an order to an ISP requiring the surrender of personal information is not invasive but a reasonable part of the process of gathering evidence (in part because Canipre’s forensic software is allegedly not “invasive”).
Wrong on BitTorrent. Zibarras undermined his credibility during this part of the hearing thanks to the inaccurate way in which he described the BitTorrent protocol (an observation I confirmed with some others in attendance). If I heard correctly, he said that by initiating a download from a BitTorrent filesharing site, the sharer thereby triggers an automatic upload of the entire movie, thus leaving no question as to whether they are “making available.” That claim was important in Zibarras’s argument, since making a piece of IP available on demand is a new concept in the legislation that explicitly adds that action to the existing exclusive right of “communication to the public,” as provided in subsection 2.4(1.1).
Zibarras’s assertion is false. Most BitTorrent clients have a preference panel that allows the end-user to initiate a download, then immediately adjust the uplink to run at 0 bps, meaning nothing is uploaded. That action, known as leeching, is technically possible but not popular with regular users: if everyone on the network were to do that, there would be nothing to download.
(My concern about these technical niceties is that, by his own admission, Aalto is not equipped to understand them. It’s not easy to explain the Internet’s enabling technologies to a neophyte in a short time. Both TekSavvy and CIPPIC must also have concerns about the leeway this gives the plaintiff. Note that BitTorrent has a whole other life as a set of legitimate and valuable tools for content providers – see their site.)
Fewer for CIPPIC: court must be concerned with “wider public interest issues”
Before court began, I bumped into David Fewer on his way to the robing room and asked if he would sum up the big issues of the day. Boiling down a great deal of evidence, he said three issues were at the top of his mind:
- Anonymous speech. Any test for the disclosure of personal information must be robust enough to ensure fair treatment of a range of other anonymous users of the Internet, such as whistleblowers.
- Evidence. The quality of the factual evidence brought to bear by the plaintiff must withstand intense scrutiny.
- Exploitation. The court must be satisfied that the suit is not part of a business model that includes speculative invoicing and the exploitation of defendants by the issuance of demands for unreasonable settlements (as in a recent case in Oregon involving a settlement demand of $7,500).
If Zibarras used a range of blunt instruments in his attack on opposing counsel, Fewer used a much lighter touch, sometimes to a fault. Nonetheless, Aalto’s general view was at least consistent with Fewer’s. To the latter’s observation that the court has not previously excluded wider social issues in this context, Aalto allowed that “this is not a simple motion.”
To bolster CIPPIC’s case, Fewer was obliged to attack a strict application of the court’s Rule 238. That’s the provision which is the basis for a motion for disclosure. As the text puts it in s.1:
“A party to an action may bring a motion for leave to examine for discovery any person not a party to the action, other than an expert witness for a party, who might have information on an issue in the action.”
There are conditions (s.3). But to my reading, they seem mostly designed to support the aggrieved party, with the exception of the last sub-section: the court may accede, provided that “the questioning will not cause undue delay, inconvenience or expense to the person or to the other parties.” I’m assuming a world of social issues is lurking behind the concept of “inconvenience.”
Fewer was soon dancing around ambiguities and conceptual dilemmas every bit as much as his chief opponent. Aalto tried to address some of Fewer’s concerns by noting again that counsel for TekSavvy would be responsible for putting the “fence posts” around any order. Pointing to that compromise may have looked good from the bench, but, like Zibarras, Fewer couldn’t afford to sound too willing to compromise at this stage.
To no one’s surprise, he put the legal niceties aside to concentrate on something with more empirical bite – the public record of Voltage’s past behavior in American courts. Fewer reminded the court about Voltage’s dalliance with speculative invoicing, while noting that no claims have ever flowed from Voltage’s demands in other jurisdictions for subscriber information. He suggested a high threshold for the plaintiff to show good faith: no potential misuse of judicial resources; an idea of what the business plan was for recovering damages; and a look into the relationship between Voltage and Canipre to establish whether a “commission” or payoff was waiting for use of Canipre’s forensic data.
Aalto had frequent comments as Fewer spoke, though they gave little indication to the untrained ear as to his leanings. On some points, he went to fairly safe generalities: e.g. the putative infringements in this case were like “Friday nite at the movies with your friends” – i.e. they were not commercial in nature. On other points, he was clearly keeping Fewer on his toes: the court has “lots of smoke but no evidence of bad faith.”
(Please see next post for part 3, the last in this series.)