Watching Voltage and TekSavvy duke it out in Federal Court

Among those who did not turn up at Federal Court Monday morning

Heading down to court Monday morning, I was concerned I might be late to get a seat for the Voltage hearing. I had my iPhone ready to record protestors and general ruckus. But Guy Fawkes was a no-show. I arrived to find the courtroom eerily quiet and half-empty.

What has TekSavvy been required to do for its customers up to now?

Short answer: absolutely nothing. As you read on, keep in mind this case is Voltage vs John Doe and Jane Doe – not vs TekSavvy.

One of the most striking things about this case concerns the complaints I’ve seen online about TekSavvy’s role. Probably the busiest place for this conversation is the forum on dslreports.com, which attracts a lot of hardcore geeks. On Saturday, Marc Gaudrault posted a lengthy comment headed “Why we are not opposing motion on Monday.” Marc was once again going out of his way to help his customers understand the murky legal aspects of an action that might ultimately cost some of his subs as much as $5,000 (the new limit on statutory damages under our recently modernized Copyright Act). Here’s part of Marc’s explanation:

“Everybody should know though that we have looked into all angles to determine what our position should be in this situation and after spending a significant amount of time and soliciting a considerable amount of advice from numerous respected sources, we found that we simply could not comment on the merits of the case. Our place is to ensure that we provide adequate notice and also to make known to others that these requests have occurred and that the best way to make sure to avoid being involved is to simply not engage in such activities.”

This effort prompted some surprisingly churlish comments from forum participants (not to say they were all like that). For example:

“Even though I wasn’t accused if [sic] this, this is still bull. You roll over for these guys? you’ll be getting attacked by every production company this side of the sun. Enjoy that. Seriously considering taking my business elsewhere. I want to know that my privacy is just that, PRIVATE.”

Good luck getting respect for your PRIVACY with Bell or Rogers.

The new legislation and its weird timetable

After many months of acrimonious debate, the Copyright Modernization Act received royal assent on June 29, though it did not come into force until publication on November 7 of the appropriate Order-in-Council in the Canada Gazette.

The statute isn’t in its final form, however, since the government needs more time to consider an appropriate set of regulations for handling the new “notice-and-notice” mechanism in the Act. If notified by a copyright owner that a subscriber is allegedly infringing, Canadian ISPs will be required to issue their own notice to the subscriber informing her of the alleged infringement. Thus, as of today, the “notice-and-notice” provisions are still not in force.

So unless my amateur legal analysis is wrong, TekSavvy has until now been under no statutory obligation whatsoever to notify its customers of any of Voltage’s shenanigans. Nevertheless, Marc and his colleagues have spent long hours over the last month consulting legal and other experts to determine what they should do to protect their customers’ privacy. Legal counsel must have told TSI that, since it’s not liable and not a defendant, the company should not intervene by opposing the Voltage motion, so as not to jeopardize its neutral carrier status (which is what frees them of any joint liability for the alleged infringements).

Then some stunning numbers turned up

After explaining to the court at Monday’s hearing how TSI has been acting in good faith by cooperating as best it can with Voltage, their counsel – Nicholas McHaffie of Stikeman Elliott - surprised the room by stating they could not continue to take their original position as a neutral party and let the motion go unopposed. The rationale for this dramatic change of heart lay in what McHattie saw as a serious compromise of the due process owed the 2,000-odd people Voltage intends to go after.

McHaffie then explained how the rushed timeline and other complications have produced serious errors in identifying and alerting the TSI subs at issue. For one thing, the TSI email receipt system had indicated only 10% of the customers sent notifications actually received them.

Early Monday morning, TSI received more detailed information about the errors that had cropped up. Thus, 92 customers reported they had never received any notice; and another 42 customers denied they had engaged in any form of infringement, despite being on the charge sheet prepared by TSI. McHaffie emphasized that this information had come to light mere hours before the hearing began. He suggested this was clear evidence the hasty timeline being pushed by Voltage had compromised the ability of both TSI and potential defendants to see that justice would be done. By the time Voltage served the final paperwork on TSI (December 11), the participants had exactly four business days to confirm charges, organize evidence, retain counsel and figure out how to respond to the extortion Voltage has visited upon thousands of other end-users in previous actions.

In a 180-degree reversal, McHaffie therefore asked the court to adjourn the hearing. In doing so they were echoing what CIPPIC (the Canadian Internet Policy & Public Interest Clinic) requested in its amicus brief, which Mr Justice O’Keefe had just been handed (a nice piece of public-interest lawyering, which will undoubtedly re-surface in January). McHaffie made it very clear the only grounds for opposing the motion was trying to ensure potential defendants got adequate time to be notified.

The world as we know it is coming to an end, producers are starving

Counsel for Voltage scoffed at this suggestion, as any delay is likely to undermine its cost-recovery model. He asserted four times (by my count) that TSI was only intervening as a “public relations” stunt, out of the fear they might otherwise lose customers – a cheap shot that fits nicely with the whole tenor of Voltage’s approach (not to mention it’s Voltage that should be worried about bad PR). Voltage counsel then got too clever by half when he argued that none of the numbers raised by TSI counsel was admissable, since they were not supported by an affidavit or other form of non-hearsay evidence. Unfortunately, said counsel was not clever enough to refrain from making his own far-fetched claims that possibly “tens of thousands” of Canadians are making Voltage titles available online “all over the world.” McHaffie shot back that Voltage didn’t have any affidavits of its own – and absolutely no hard evidence before the court that any TSI sub has actually engaged in infringing activity.

Just before Justice O’Keefe retired to chambers to consider the adjournment, the agent for CIPPIC asked if he could be heard. Although he was told no, not at this time, the judge noted he had read their brief and would take it under advisement. He was gone barely 15 minutes, then returned to announce he was granting the adjournment. He also dismissed the idea that McHaffie was out of bounds in putting forward information about errors in the TSI notices – which Voltage counsel claimed were strictly TSI’s problem. McHaffie, noted the judge, is an officer of the court and was therefore unlikely to be fabricating the numbers. It’s encouraging to see the court can be flexible enough to take one of its officers at his word, pending the production of real evidence at an actual trial – which btw might never take place if Voltage sticks to its extortion-style business model.

Monday’s hearing pitted an insistence on haste plus flimsy claims about harm to the plaintiff against the public interest in giving potential defendants a reasonable opportunity to fight back against their accusers. So, as of today:

  • The public interest – 1
  • The carpetbaggers – 0

D.E.

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