Home > Internet > Voltage’s TekSavvy Subscriber Shakedown, Part II: Big Win for TekSavvy or Room for More?

Voltage’s TekSavvy Subscriber Shakedown, Part II: Big Win for TekSavvy or Room for More?

Yesterday, a Federal Court in Toronto decided to postpone Voltage Picture’s motion to have TekSavvy divulge subscriber identities linked to 2000 IP addresses that Voltage claims have been used to share its movies illegally. Does the result vindicate TekSavvy’s refusal to oppose the motion and mark at least a partial victory for its subscribers, as some are suggesting? 

My friend and colleague David Ellis makes an excellent case for why the answer is yes. As David sees things, far from caving, TekSavvy “was in fact working against Voltage on several fronts”. I’ve talked with several people with good knowledge of the case, thought long and hard about it, and while I agree with many of David’s points, I’m not convinced TekSavvy got the wins he thinks it did.

Let’s start on the positive side of the ledger though, because there is much to appreciate in what TekSavvy has accomplished thus far, with potential for more to come.

Standing Up for Subscribers

First and foremost, TekSavvy has dedicated many hours and, according to statements made in court, already spent $190,000 in legal fees and other costs fighting to ensure that its subscribers’ interests are properly accounted for. Besides David’s kudos for TekSavvy, CIPPIC’s director David Fewer is emphatic that the indy ISP deserves much praise for fighting strongly for its subscribers to be notified and more time to put together a proper legal defense.

Standing up for CIPPIC and the Public Interest

Second, TekSavvy has pushed hard to open space for CIPPIC, the public interest internet law and policy clinic, to gain standing in the case (more on this below). While nothing has been decided on this point, comments by Judge Leonard Mandamin suggest that CIPPIC will gain standing, as David’s post and live tweets from the court room by Paul Andersen and National Post reporter Christine Dobby, indicate.

Voltage argued strenuously against Teksavvy advocating on behalf of a role for CIPPIC. Its lawyer, James Zibbaras, argued the move to defer a ruling was just a delaying tactic to mask the fact that TekSavvy had no case. Justice delayed, would be justice denied, he claimed, because as the courts fiddled, Voltage’s movies would be ripped and burned across the planet. The judge was having nothing of it, however, and the matter was put on hold.

Starting Over: Letter from Voltage – Dear Fans

Third, TekSavvy’s counsel, Nick McHaffie, succeeded in getting Voltage to walk its scorched earth strategy back several steps. Whereas Voltage went straight for the subscriber identities linked to the 2000 IP addresses it has identified, this bypassed the usual first step in such cases: asking ISPs to politely send cease and desist letters to those allegedly engaged in illegal file-sharing, while using this as an opportunity to convert pirates into paying fans.

Voltage did none of that. A late in the game bid by McHaffie, changed this. As a result, Zibarras agreed to do just that, with McHaffie making it “very clear”, according to Ellis, “he intends to put language into the draft order that will protect the privacy of potential defendants”.

Compared to Other Canadian ISPs, TekSavvy’s a Saint

Fourth, TekSavvy’s efforts, as Jean-Francois Mezei put it in a perceptive comment to my last post, distinguishes the indy-ISP from others who have rolled-over and shut-up in two similar cases. In the first, also brought by Voltage in 2011, Bell, Videotron and Cogeco not only did not oppose the motion to disclose the identities linked to fifty IP addresses alleged to have illegally shared the movie The Hurt Locker, they didn’t bother to even show up in court. Despite winning the case, Voltage abandoned its claims last March and things came to a halt (also see here).

In another case late last year, four ISPs – Distributel, Access Cooperative, ACN and 3 Web – faced a similar motion by Canadian motion picture company, NGN Productions. Once again, all ISPs were missing in action, leaving their subscribers hanging in the wind (also see here and here).

At this point, I also need to clarify and correct a point I made in my last post: in the precedent-setting BMG case, far from all of the incumbent ISPs lining up against the record labels, only Telus and Shaw took the lead, while Bell and Rogers selectively and reluctantly joined the fold; Quebecor (Videotron) actively sided with the record labels (see CIPPIC’s archived materials).

In short, relative to most ISPs, TekSavvy is a saint, and should be applauded for walking the extra mile on behalf of its subscribers.

A Glass Half Empty/Full: What Else is a Good ISP to Do?

While TekSavvy has gone well-beyond the norms that prevail among Canadian ISPs, its stance still falls short of what is possible, not just in some fantasized world but against what seems achievable through the legal resources available as well as relative to best practices adopted both in Canada and elsewhere.

Delays May Be Useful, But Are Not a Legal Victory

The first thing to note is that even after spending $190,000, TekSavvy has not won anything yet in terms of a legal ruling other than two delays that allow others more time to get their houses in order. More to the point, it is still not opposing Voltage’s motion.

Standing Up for Privacy is a Real Option, even if not an Obligation

While discussion with others has led me to accept that Canadian law, and PIPEDA specifically, does not compel ISPs to take a stance on behalf of their subscribers’ privacy, the latter does give them the opportunity to do so. TekSavvy should take it.

That it has not stands at odds with best practices set by Telus and Shaw in the BMG case. Even Rogers, which otherwise waffled in the face of the record labels’ case at the time, agreed that ISPs are “obliged to protect . . . the privacy of their customers . . . by virtue of the Personal Information Protection and Electronic Documents Act (2000)”(para 13). This appears to be a moral position rather than a legally compelled one, but so be it if it aids in gaining a big win for subscribers’ privacy. After all, human rights are but empty legal shells if not moral rights, too.

CIPPIC is Not a Proxy for TekSavvy

While TekSavvy’s intervention has opened space for CIPPIC, the decision to defer a ruling on the motion does not guarantee it will be permitted to intervene. Even if it is, CIPPIC is not a proxy for TekSavvy but, as its request for intervener status states, it “brings an important public interest perspective to the proceedings, different from the Plaintiff, the Defendants and the non-party Respondent” (emphasis added).

As CIPPIC director David Fewer told me, CIPPIC’s first role, if it is granted intervener status, will be to underscore the importance of the right to anonymous speech online, with judges functioning as the safety valve in determining when such rights must yield to more pressing public policy concerns such as hate speech, defamation and copyright (see dayna boyd for good discussion of the vexed issue of anonymous speech rights). If the Voltage motion is not just about privacy rights, but speech rights, the fundamental question is which test will be used to decide when the right to anonymous speech can be over-ridden?

The continuum of options stretches from the weak ‘good faith’ standard adopted in the BMG and other copyright cases versus stronger standards in expressive rights cases that require those pressing a claim to demonstrate they possess evidence that is of a high enough standard that they just might win. In other words, when property rights trump speech rights, there better be good policy reasons and strong evidence for doing so.

CIPPIC’s stance reflects the increasing awareness that copyright claims have enormous implications for freedom of expression. That might not be of interest to TekSavvy, but it is a public interest of the highest order. It is also why CIPPIC needs to be in the room.  

CIPPIC’s second concern is to raise questions about whether the courts are being used illegimately as part of copyright trolls’ business model, a model that depends on people, when faced with threat of litigation, making the rational choice to fold simply be settling rather than going through a costly court case. That Voltage went straight to a motion for disclosure versus taking the time to send cease and desist letters throws such concerns into sharp relief.

CIPPIC’s role, thus, is specifically not to intervene on behalf of any of the Jane or John Does that might stand forward in the Voltage motion or TekSavvy because the interests of each of these groups are not one and the same. ISPs must take a stand for themselves. And within a mountain of factors making it unlikely that the hundreds, if not thousands of Jane and John Does will be able to effectively participate, as Howard Knopf states, CIPPIC’s job is to suggest how the law should be applied, what tests should be used when property and speech rights clash, and to uphold the public interest.

TekSavvy, the Federal Court Wants (Needs) You

Towards the end of yesterday’s hearings, Judge Mandamin indicated that hearing a motion from only one side is risky. Two possible interpretations seem to flow from this: One, CIPPIC could play a more adversarial role, and perhaps it will. Or two, TekSavvy needs to step up to the plate more forcefully than it has.   

I think the judge had the latter option in mind, but it is likely that only he and others in the room will ever know for sure. Two things seem to support this interpretation. First, Mandamin was clear that the Copyright Modernization Act, which just came into effect last November, is new and untested, meaning it’s ripe for interpretation and essential to get things right. TekSavvy has an opportunity to help define the new law and should use it. This is a job for those on the front line, not CIPPIC or a rag-tag group of Jane and John Does who may or may not show up when needed.

Judge Mandamin also made it clear that there were difficult technical issues that had to be dealt with and that the court needs to be as informed as possible. TekSavvy is in a better position than any to test the quality of the technical evidence, and for this reason, too, it should go beyond its current stance to directly oppose the motion.

Not a Fantasy

In the end, it is not that TekSavvy is doing nothing. As I argue above, and as David Ellis shows, it has done much, especially relative to what other ISPs have done. For that, we should stand in support of Marc Gaudrault, rather than casting barbs from the sideline.

That said, however, there is scope to do more. My desire to see more does not stem from seeing TekSavvy as falling short of some other-worldly standard of privacy or anything else, but concrete possibilities within currently existing laws, as Telus and Shaw (and to a lesser extent Rogers and Bell) showed in the BMG case and, as I suggested, in my last post, by best practices adopted by Sonic.Net and Twitter in the U.S. and ISPs in Sweden.

They  have taken an active and assertive role in directly opposing motions by copyright claimants and/or the state to disclose their subscribers’ account-related data. In the case of Sonic.Net as well as the Swedish ISPs, they  embraced policies that minimize the collection, retention and disclosure of subscriber information, thereby making it harder to turn-over subscriber information to copyright trolls, and anyone else, because they simply do not have it.

Yes, as someone I respect very much told me, I should be careful what I wish for, because if this mini-campaign for minimalist data collection, retention and disclosure policies gains legs, it’s possible the Harper Government would step in to mandate a minimum data retention law, likely in the range of six months.

My response is two-fold. First, we’ll deal with it if it happens. It’s not possible to be shadow-boxing with ‘what-ifs’. Should ISPs and other internet companies adopt this pet-project of mine, and face such a reaction, as some smart minds contemplate, then let us resume the battle royale that such a move could trigger, similar to the public outcry to the government’s last lawful access bill (Bill C-30).

Second, if expressive rights are tied to concerns about control over our own personal information, then perhaps it would be possible to challenge any attempt to legislate a data retention requirement on grounds that such a measure is excessively broad and an affront to speech rights? A more tailored response seems to have been grasped in the new Copyright Modernization Act where the need to retain subscriber data for six months only kicks in after an ISP receives notice of IP addresses that have been linked to infringing behavior. Data retention seems to be a bit of a blackhole when it comes to the interests of property and the state in Canada, and the sooner we shed some light on it, the better. 

Last Words

David Ellis, J.F. Mezei, and others are right that TekSavvy has done more than most and won a few victories along the way. With all that TekSavvy has done over the years, it would be churlish to see it as selling out. 

However, there is more that it can and should do. At this early stage in the shaping of the new copyright law, carving out an even greater role for itself could fundamentally shape the legal landscape for the internet and digital media for years to come.

And it is for all these reasons that I hope it will rise to the occasion, while being mindful that it has done much already and itself not privy to an unlimited stash of cash. Perhaps this is grasping at straws, but how about a John and Jane Doe and TekSavvy Copyright Troll busting fund?

If that’s an option to be pondered, I’m in for $190 to start (1/1000 of what TekSavvy has on the table so far).

  1. Jean-Francois Mezei
    January 19, 2013 at 2:32 pm

    Remember that Teksavvy has done the “IP to customer ID” work 4 times in order to ensure they have eliminated possible errors because they did discover errors in performing those duties. Voltage revised the list once (from roughly 4000 down to 2300) and there is no telling if Teksavvy had begun work on the 4000 before it had to restart over again when a new list was presented.

    Teksavvy was brought into this despite having done nothing wrong, not being a suspect. But Voltage has forced Teksavvy to spend considerable amount of human resources to perform the work AND to deal with the legal aspects. And since they are not “fighting” this, why should they be forced to spend large sums of money ?

    They are an innocent by-stander who has been forced to spend lots of money and there isn’T any assurance that Voltage would even prosecute anyone of those customers.

    • January 19, 2013 at 4:01 pm

      Thanks for the comment again, JF. I understand and appreciate the very heavy burden that TekSavvy has incurred in this. This is a huge problem. My thought is that it needs to be established once and for all that ISPs can’t be turned into agents on behalf of copyright claimants such as Voltage. TekSavvy now stands in the best position having been forced into playing that role to oppose the enormous burden that this places on ISPs. It is also, again by dint of no desire of its own, to stick up for important values with respect to its subscribers’ anonymous speech and privacy rights. Until the likes of Voltage are successfully challenged, these pillars of a democratic communication space, which the Internet certainly is a crucial part of, will lay fallow, resting more on the rhetoric of internet freedom rather than a sturdy legal foundation or an economic one, for that matter, if even good (in the normative sense) ISPs like TS keep taking a financial beating. In short, I hope that the occasion can serve to effect an interpretation of the law that (a) minimizes to the absolute least amount possible the role of ISPs (and other intermediaries) as agents enrolled in the copyright enforcement machinery and (B) maximizing internet users speech and privacy rights.

  2. Facts
    January 16, 2013 at 12:26 pm

    The “$190,000” spent by teksavvy is not just legal fees… Please get your fact straight. The majority of that was spend tracing the ips of the accused by Voltage.

    • January 16, 2013 at 1:40 pm

      Dear Mr/Ms Facts. Perhaps you can put aside your surly tone and let me know where you get your wee tidbit of info from. Let me know, and I’ll check with the Source.

      • CheckThisOut
        January 17, 2013 at 11:04 am

        I’m assuming he means this:

        http://business.financialpost.com/2013/01/14/judge-grants-new-adjournment-in-teksavvy-illegal-file-sharing-case/

        Lawyer Nicholas McHaffie said Monday his client has also incurred about $190,000 in legal fees and other costs dealing with the motion for third-party disclosure brought by the California-based film studio Voltage.

        Note: “other costs” which I am assuming are the costs involving discovery of the IPs and the few review passes done.
        $190,000 in just legal fees alone for 2 court dates and consultation might be excessive. If it was the case then I should have been a lawyer instead than if that was the case! LOL

      • January 17, 2013 at 12:10 pm

        Thanks for this. I checked into it as well and agree that it’s important to include “and other costs” in this amount. I’ve adjusted the text accordingly. cheers DW

    • January 17, 2013 at 12:12 pm

      Dear Facts. You’re right about the need to include “other costs” at the point I refer to the $190,000. I’ve changed the text accordingly and stand corrected. Thanks for taking the time to comment. cheers DW

  3. Teresa Murphy
    January 15, 2013 at 8:48 pm

    Great post Dwayne.🙂

    As for donating, an indiegogo fund was started last month by someone who hasn’t received a notice, but wants to stop this once & for all:
    http://www.dslreports.com/forum/r27813189-Kickstarter-for-funds-VS-Voltage-Lawsuits-CAMPAIGN-LAUNCHED-

  4. FTW
    January 15, 2013 at 8:42 pm

    “…how about a John and Jane Doe and TekSavvy Copyright Troll busting fund?”

    There’s one on indiegogo for this: http://www.indiegogo.com/AgainstCopyrightBullying

    The Problem:

    Voltage Pictures LLC has started down a path that results in sending out hundreds or thousands of threatening letters to people. These letters will probably demand large cash settlements, with the underlying threat of being sued if you don’t pay up. Many of the recipients of these letters will be innocent people, but will be frightened into settling. I don’t like that kind of thing, and I think it’s something worth standing up for.

    The Solution:

    The solution is simple. Gather all those targetted by Voltage Pictures LLC, and pay for a proper legal defence for them. Show them we stand together, as Canadians against this sort of behavior from corporations.

    The $5000 goal is simply enough to get started. We are already talking with a lawyer who is interested in taking on this project. We are hopefull that we will be able to raise enough money to defend everyone. If we can’t afford that, we will attempt to write a legal manual on how these individuals can deal with the litigation themselves.
    The Impact:

    If this campaign is successful, we will change the way that copyright lawsuits are handled in Canada. Help us send a clear and strong message to these corporations. We know how to deal with bullies. We deal with them as a group – strong and united
    How You Can Help:

    You can help by spreading the word! Tell your friends! Post it on your wall! Tweet it! Blog it! Thousands of people have been unfairly targetted. Lets get thousands of people to stand up and make some noise about it!

    UPDATE:

    We are currently considering donating funds from the campaign to CIPPIC to help in there efforts to stop the disclosure motion. If previous donors dislike this idea, please let me know via a private comment. We feel it will be much more productive to stop the disclosure in the first place, than it is to fight potentially thousands of court cases.

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