Home > Internet > Voltage’s Shakedown of TekSavvy, Part III: the Fight for a Competitive and Democratic Internet

Voltage’s Shakedown of TekSavvy, Part III: the Fight for a Competitive and Democratic Internet

Over the past few weeks debate has roiled over Voltage’s mass copyright litigation scheme directed at TekSavvy users. This has many wondering whether the indy ISP has done enough to thwart the disclosure of subscriber identification linked to about two thousand IP addresses that Voltage alleges have been used to illegally share films and tv programs the company owns the rights for.

Here I want to add a few more thoughts to my previous posts on the topic (see here and here). The main aim is to provide a crisp distillation of the ultimate issues at stake, the benefits of TekSavvy’s approach so far and why I still believe that TekSavvy ought to directly oppose Voltage’s motion.

First, it is unequivocal that relative to what other ISPs in Canada have done, TekSavvy is in a league of its own. Other than Telus and Shaw in the precedent setting BMG case of 2004, only TekSavvy has raised as many hurdles to companies such as Voltage who seek to have ISPs turn over subscribers’ identification linked to IP addresses that are accused of being used for illegal file sharing purposes (see Howard Knopf’s posts on this point here and here).

In BMG, only Shaw and Telus led the charge against using ISPs as a means of getting to subscribers behind the IP addresses being sought. Videotron actively sided with the recorded music industry, while Bell and Rogers waffled. Fast forward to 2011, when Voltage launched a similar case (The Hurt Locker case), only to face zero opposition from the three incumbent ISPs targeted for the 29 IP addresses being sought: Bell, Cogeco and Videotron. Indeed, the three ISPs agreed to not show up in court at all.

Last year, Canadian film and tv producer and distributer NGN productions targeted four smaller ISPs, with much the same results: Distributel, Access Cooperative, ACN and 3 Web. All caved, and we hardly heard a peep about these events. Thus, compared to its counterparts, TekSavvy shines.

TekSavvy’s stance also lines-up well with international best practices and obligations of ISPs and digital intermediaries when it comes to protecting subscribers’ speech and privacy rights, as can be seen when we look at the Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression prepared for the United Nations Human Rights Council by Frank La Rue in 2011. As LaRue’s Report states,

To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention; be transparent to the user involved about measures taken, and where applicable to the wider public; provide, if possible, forewarning to users before the implementation of restrictive measures; and minimize the impact of restrictions strictly to the content involved. Finally, there must be effective remedies for affected users, including the possibility of appeal through the procedures provided by the intermediary and by a competent judicial authority (para 76, page 20).

In short, TekSavvy’s actions not only shine relative to most of its Canadian counterparts, they appear to be in line with international norms regarding speech and privacy rights. Still, however, there are three points upon which we can still reasonably ask for more.

First, the LaRue report puts a lot of weight on proper legal proceedings taking place before any limits to speech and privacy are implemented. While TekSavvy has done much to make sure that such proceedings take place with a great deal of fanfare and plenty of time for the thousands of Jane and John Does implicated to be notified — all in line with what UN report has to say – we must ask whether or not the legal process that LaRue refers to would be better served if TekSavvy directly opposed Voltage’s motion?

That is what Telus and Shaw did when opposing the motion for disclosure in the BMG case and it is, as I’ve argued, what TekSavvy should do in the present case. Indeed, Judge Mandamin, who is overseeing last week’s proceeding in the Voltage motion, seemed to have exactly this in mind when he noted that hearing a motion from only one side is risky, and that complex technical issues required those with the best knowledge of such matters, i.e. TekSavvy, to step forward.

Second, we can look to elsewhere for cases where ISPs have actively opposed attempts to enroll them into the machinery of copyright enforcement.  Two of the largest ISPs in the UK, BT and TalkTalk fought tooth-and-nail, for example, against sections of the 2010 Digital Economy Act that did just this. While they lost, BT and Talk Talk’s opposition was part and parcel of a wave of opposition, including the influential Hargreave Report, that sent key planks of the Digital Economy Act back to the drawing board.

Another UK case – ACS Law – MediaCat (and here) – showed how important opposing copyright claimants’ bids to pursue mass litigation campaigns against alleged illegal file-sharers is to revealing the shoddy quality of the evidence that often stands behind such claims. Lastly, the Australian ISP, iiNet successfully fought back a push by a group of 34 movie studios, the Australian Federation Against Copyright Theft (AFACT), to have the ISP play an active role in enforcing their copyright interests. iiNet won the initial trial case in 2010, on appeal to the Federal Court in 2011 and again in the High Court last year. In short, ISPs actively and directly opposing motions by a variety of copyright claimants has beaten back the tide on many occasions (thanks to Australian lawyer, Leanne O’Donnell, for the tips regarding these cases).

Third, the standard for disclosing subscribers’ information set in the BMG case is weak. Indeed, the idea that the claims being made are done in good faith falls far short of the stronger standards associated with the requirement that those pushing such a motion make a compelling case that they have a good chance of winning in court.

If speech becomes one of the pivots upon which such things will turn, then the standard will become higher yet. CIPPIC plans to push these points if it gains intervener status, but I can see no reason why having both it and TekSavvy pushing at the oars in unison won’t strengthen the case for moving the weak standards of disclosure that have been in place since BMG, and arguably behind why many ISPs since then have simply folded in the face of motions for disclosure, to much higher standards, and especially standards that put speech rights in the front window.

Ultimately, 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. This is essential given that the ink on the new Copyright Modernization Act is not even dry yet, leaving it ripe for interpretation, as Judge Mandamin noted.

TekSavvy now stands in the best position to do this having been forced into playing that role to oppose the enormous burden that this places on ISPs. TekSavvy has a chance to stick up for important values with respect to its subscribers’ anonymous speech and privacy rights, and it should. Sure, CIPPIC could do this, but CIPPIC’s interests, as I noted in my last post, are distinct both from TekSavvy and its subscribers.

Until the likes of Voltage are successfully challenged, these pillars — speech and privacy rights — 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 economic one, for that matter, if even good (in the normative sense) ISPs like TekSavvy 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 that ISPs (and other digital intermediaries) are forced to play as agents in the copyright enforcement machinery and (B) maximizes internet users’ speech and privacy rights.

The fact that TekSavvy has broken ranks with past practices by incumbent ISPs and others, who have rolled over and disclosed subscriber info in pretty much every case after BMG (except Telus and Shaw, in that case), it would appear, also demonstrates the importance of having as much diversity and competition in internet access as possible. A more competitive and diverse supply of internet access means that subscribers will be less vulnerable to a handful of players being shaken down by copyright claimants for their personal information.

  1. Jean-Francois Mezei
    January 22, 2013 at 7:22 pm

    While the ISP must not disclose data without a court order, is it really their responsibility to challenge evidence ?

    If police get a court issued warrant, the ISP complies without challenge. Should this be different here ?

    Perhaps there should be an independent body which studies such evidence and folks like Voltage couldn’t go to court without that agency having approved the evidence first.

    ISPs should not be made responsible for serious legl challenges whenever a troll goes to court. They can’t afford the time and expense.

    • Sebastien
      January 22, 2013 at 8:06 pm

      I think you’re missing one of the points of the article – while it’s not necessarily the responsibility of the ISP to challenge it, it also doesn’t have to become a tool for the copyright trolls in the process.

    • January 22, 2013 at 8:56 pm

      JF Your points about costs are well-taken, but there’s more to this than that.

      First, in terms of costs, it would be nice to see CAIP stand forward to take a firm stand in these matters, and perhaps to pony up as a collective to oppose the Voltage motion, or to support TS’s opposition.

      Second, your reference to law enforcement is part of the problem in the background, which is that in such instances things are all-too-murky and we need to clarify the terms of engagement. As Geist has noted, even without lawful access/Bill C30, ISPs are already complying with 95% of such requests without a warrant. That is a problem. And as a general principle, yes, ISPs counsel should clear such requests and undertake a vigorous review of them lest ISPs be enrolled as passive tools in law enforcement and national securities — a problem at least as big as the copyright issue.

      Finally, TekSavvy is the beneficiary of an internet community pushing for policies supportive of openness, competition and a free and democratic internet. As the beneficiary of such public and policy commitments, it and the rest of the ISPs should sally up to pay their dues. A free and open internet ain’t free and so . . . . I wouldn’t be bothered writing at all if this was just about business as usual. It ain’t!

      • Jean-Francois Mezei
        January 22, 2013 at 11:37 pm

        Yes, it would be nice to see an industry association represent all ISPs and provide a full debate once and for all to set standards by which trolling for IP addresses can be acceptable. Once standards are set, then trolling companies such as Canipre would know exactly what burden f proof they need to present in order for their claims to be taken seriously.

        Fact is this isn’t happening. I am sure both CAIP and CNOC are watching, but they sure have no visible involvement.

        Ideally, the burden of proof when presenting IP addresses suspected of infringing copyright would be high ennough to dissuade trolling for individuals. Go after the commercial operations that distribute content illegally first.

        More importantly, the movie industry needs to understand that going after invividuals will not stop downloading of their movies from un-approved sites.

        They need to make their content legitimately and affordlay available from as many sources as possible, and without DRM so people can play on any player.That is the only way to battle piracy.

        In particular, exclusive deals are a major cause of priracy. When Universal signs an exclusive deal with HBO, people without HBO will not be able to get the content elsewhere except through illegal channels.

        When BellAstral gets exclusive rights in Canada for a USA movie and prevent it from being available on Netflix, Itunes, etc then people will get it from “other” sources.

        The downloaders are not THE problem, they are a symptom of the problem. The real problem lies in Hollywood’s business practices and they need to change the way they do business to foster the co-existance and transition to digital distribition instead of preventing it.

    • January 23, 2013 at 1:39 am

      I would absolutely agree to an independent body on this as well. There is also a real risk for the business community in all of how ISPs are handling things. Want to see what a competitor has been up to? Very easy if ISPs are not challenging court orders. All you have to do is hire a lawyer, grab your competitors IP logs from their respected ISPs. It’s not just the regular citizen that’s effected by all of this.

  2. January 22, 2013 at 3:41 pm

    Very interesting post. I too agree that ISP’s have a role to play in shaping our digital future, and those ISPs that have advocated in the past on such roles, do have a responsibility to step forward and do their part in this as well.

    There’s a whole situation right now with respect to Comcast in the US pretty much owning 70 – 75% of the ISP market share down there, and a brewing revolt against lawmakers to get involved and do something. Diversity and competition in the ISP market is I think fundamental to the future of the net, considering when you look at Bell, Shaw, and Rogers who are also distributors of creative content and have their own interests on how the future of digital content is shaped.

    • January 25, 2013 at 12:24 pm

      Thanks for the comment, Jason. Just to clarify an important point, however, Comcast accounts for nowhere near 70-75% of the total US internet access market. The number is closer to 20 percent nation-wide, as the latest data from the IMCR project shows. See here: https://docs.google.com/file/d/0B3WCF51KmyImSFloNG9ZWVV1cWc/edit). Perhaps it is in the 70-75% range in some of the cities in which it is present, which would put it in line with points that Susan Crawford makes.

      • January 26, 2013 at 10:42 pm

        Ahh okay. I read something about that a few weeks ago. That’s what I was pretty much basing my comment on. I guess I should have re-read the story. Thanks for the correction.

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