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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.

The Copyright Modernization Act (C-11), Digital Locks and turning ISPs into Gatekeepers One Step at a Time

For the fourth time in six years, new copyright legislation was introduced last month and debated in Parliament this week.  The proposed new Copyright Modernization Act (Bill C-11) is a word-for-word rendition of the last bill that died when the election was called, except for a few important tweaks (see below).

The bill, in fact, has much to commend it. It holds the line steady on the length of copyright protection at the lifetime of the author plus fifty years, rather than wildly extending it for up to 150 years, as in the United States.

It also recognizes new user rights, including the ability to swap content we already own across the devices we use, such as smartphones, tv screens, computers, tablets, and so on. So, yes, according to C – 11, take the music or episode of The Wire you bought online and burn a copy to watch on your telly. People can also copy legally-owned content for their own personal, non-commercial use, and for safe-keeping (section 29).

The most cutting-edge innovation is the nod given to the do-it-yourself culture of mass expression. People will be able to rip, mix and burn snippets of media content in order to create their own non-commercial parodies, satire, mash-ups, and Youtube clips.

The biggest problem is that these new rights are trumped by the sanctity given to digital locks in Bill C-11. Sure, do all of the things the new law permits until your heart’s content, but only if you do “not circumvent . . . a technological protection measure”. TPMs are inviolate, as the entirety of section 42 makes painstakingly clear.

This is the triumph of technology and contracts over human will and communication rights. Critics are right to single it out. It is hard to imagine the bill being salvageable without this ordering of things being seriously revamped.

That the Conservatives have consulted closely, and secretively, with Washington to design this bill is also problematic (see here and here). The book-burning clause requiring students to destroy copyright-protected, online components of course they take thirty days after receiving their final grade is plain dumb (section 30(5)).

Yet, there is another feature that needs higher billing than it has so far received: Notice and Notice rules that will require all ISPs to pass on notices from copyright holders to subscribers alleged to be illicitly downloading and sharing copyright protected content online. ISPs will also be required to retain records for six months that allow the identity of the subscriber to be established and disclosed if things end up in court (sec. 41.26b).

The requirement to retain subscriber information is new. The notice and notice regime, however, is not. Telus, for instance, already forwards 75,000 notices every month on behalf of copyright claimants on average.

In fact, all major Canadian ISPs – Bell, Shaw, Rogers, Quebercor (QMI), Telus and Cogeco – voluntarily agreed with the recorded music industry a decade ago to perform such a function — for free. Such a role is hidden in plain sight in each of their Terms of Service agreements (see here and here).

The publishing, software and movie industries have been the most frequent users of the voluntary notice-and-notice regime in recent years, while the recorded music industries have moved on to pursue a more ambitions agenda since 2008: new laws that require digital intermediaries – ISPs, search companies (Google), data centres — to block access to blacklisted URLs and, for ISPs to take the drastic step of cutting off the Internet connections of repeat infringers.

These approaches are known as the “graduated response” and “three-strikes” regimes. The Recording Industry Association of America (RIAA) and International Federation of Phonographic Industries (IFPI), working in tandem with their local offshoots, have been remarkably successful in having them translated into real-world laws in one country after another: Australia, Britain, France, Ireland, New Zealand and Taiwan, amongst others.

This agenda has not yet succeeded in the United States, however, although the push to make it so is relentless.  The terrain is not terra nulles, however, and all of the biggest U.S. ISPs – Comcast, Verizon, AT&T, Time Warner, Cablevision, etc. – signed a deal last summer with the big four music companies (EMI, Sony, Universal, Warner Bros.) and Hollywood studios (Disney, Viacom, Time Warner, News Corp., Universal, Sony) that will see them take on the notice and notice procedures and possibly some additional measures voluntarily.

The agreement is colloquially known as the “six-strikes-and-we’ll-see” approach because the higher level deterrents are seldomly used. Nonetheless, some worry that the push will be to steadily ratchet the levels of control enacted by ISPs to ever-higher levels.

The notice and notice regime contemplated by the Copyright Modernization Act is stricter than the approach arrived at in the United States. However, it is far less punitive than the “three strikes” and “graduated response” measures adopted by France, the UK, New Zealand and Ireland, among others, in recent years.

The Conservative Government’s decision to reject the three-strikes approach delivers a clear set-back to the recorded music industries’ policy agenda. More importantly, however, it comports well with a recent UN Internet & Human Rights report that emphatically states that “cutting-off users from Internet access . . . on the grounds of violating intellectual property rights law . . . is disproportionate and . . .a violation of . . . the International Covenant on Civil and Political Rights (p. 21).

Nonetheless, C-11 is problematic insofar that it takes a voluntary deal cooperatively arrived at among Canada’s incumbent telecom and cable companies and applies it to the rest of the 400-500 smaller ISPs that exist in the nooks and crannies of the Canadian ISP market. The new law will force small ISPs to assume roles that most have rejected, and which some oppose on privacy, information rights, and freedom of expression grounds.

Second, the new bill mandates that all ISPs retain data for six months and to disclose the identity of Internet subscribers under court order. This is a new element introduced by the legislation over and above the current voluntary arrangements. For those who believe that the goal should be to minimize, rather to increase, the collection and retention of subscriber data, this is problematic.

Third, as the Chilling Effects Clearinghouse and the Electronic Frontier Foundation’s Take-Down Hall of Shame in the U.S. illustrate, copyright claimants frequently launch claims based on broader assertions than the law permits. Removing the hurdle of a court order essentially permits copyright claimants to take a shotgun approach that captures far more than what it legally required. The chilling effect on free expression is considerable since many people stop whatever they were doing when sent a notice of alleged copyright infringement rather than wander on to uncertain terrain.

Because copyright holders groups strongly oppose the suite of user rights outlined above – to make back-up copies, create User Generated Content (UGC), swap content across devices, etc. –  they will work very hard to have these rights defined as narrowly as possible. A legally mandated notice and notice regime will serve them well.

C-11 will not turn ISPs and other digital intermediaries into gatekeepers on its own. Translating the voluntary agreements that Canada’s biggest vertically-integrated telecom-media-Internet conglomerates — Bell, Shaw, Rogers, QMI, Cogeco — have made with the music industries into the law of the land, however, will only tilt the bias further yet toward a more net-centric model of control. Extending these methods — plus new data retention and disclosure mechanisms — to all ISPs will compound the problem.

The dominant  telecom-media-Internet players have already demonstrated their capacity to discriminate in favour of their own content and services. In addition, their use of DPI (deep-packet inspection) technologies is already very high relative to global standards (see here). I see no reason to give either them or the copyright holders groups yet even more incentives that will only bolster their pursuit of network-centric models of control and perpetual copyright.

Seen in this context, digital locks are important but the possibility that notice and notice will become the law of the land deserves far more scrutiny than it has thus far seen.

(Un)Lawful Access: Wiring Canada’s Networks for Control

The Conservative Government is off and running. A majority in hand, it is already driving through on its legislative agenda. An already in just the last week, we have seen several items of critical importance to the network media in Canada:

1.The Copyright Modernization Act (Bill C-11) was introduced Thursday last week, a copy of the bill that died when the election was called. The new bill was the third on list of items introduced by the government this session. Digital locks and new rules requiring ISPs to formally block certain websites under court order and to routinely take on ‘intermediary roles’ on behalf of copyright industry claimants are its irredeemable Achilles heal, despite the fact that there are some good measures on it.

I have had my say on this before, and you can see my views here. Michael Geist has a good sum of the implications of the new Copyright Modernization Act here. On ISP website blocking and intermediary roles, the Government’s explanation of the measures is clear enough and can be seen here.

2. Konrad von Finckenstein won’t be coming back to the CRTC after January 2012. The government wants to appoint someone more compliant. It will not have any problem in that regard, with a gaggle of the underserved far worse than KvF standing in line (i.e. the I-don’t-know-jack-about-media Harper appointee, T. Pentefountes; the wireless industry’s kingpin and ex-Conservative Premier of New Brunswick, Bernard Lord; Quebecor Media Inc’s (QMI) front man Luc Benoit; and former Minister of Foreign Affairs, Lawrence Cannon).

Just what we need, more political hacks overseeing the development of the network media in Canada at such a critical time. I called it crony capitalism a while back, and it looks like it’s about to get worse. An independent and network free press depends on autonomy from Government, not for supplicants from one government after another to be spread throughout the media system.

3. A third item has not yet appeared, to some people’s surprise, given that it was supposed to be a prominent piece of the Government’s omnibus crime bill: so-called “lawful access” legislation. While held back from the omnibus crime bill, you can rest assured that it will be coming back.

A cornerstone of this push last Parliament was the Investigative Powers for the 21st Century Act (Bill C-51), a bill which would make it mandatory for telecoms providers, ISPs and search engines to disclose subscriber information, including name, address, IP address, and email address, to law enforcement officials without court oversight. It would also require costly upgrades to these networks to enable new surveillance capabilities. The post I wrote on the topic can be seen here.

I have said for some time that ISPs and other network, search and social media providers should not be turned into gatekeepers acting on the behalf of either commerce or the state. Lawrence Lessig said the same thing ago in his classic, Code and other laws of cyberspace. This is a principle and one that should not be thrown under the bus. Creating an open network media system requires that the collection, retention and disclosure of subscribers’ personal information be minimized, not maximized.

Coupled together with the new requirements for ISPs to block websites and take on intermediary roles in the Copyright Modernization Act, the requirements included in the Government’s surveillance and lawful access legislative proposals to date cut intensive gatekeeper functions. Don’t look for a smokin gun, but a serious tilt slowly biasing the evolution of Canada’s telecom-media-Internet infrastructure in the favour of greater control and away from a transparent and open model of the open Internet.

We reach certain points in time, what the critical media scholar Robert McChesney calls “critical junctures”, or which the sociologist and media historian Paul Starr calls “constitutive moments”. We are in one such moment at present, I believe, and choices and decisions made now will tilt the evolution of the network media away toward a much more closed, surveilled and centralized regime than the open and distributed one, with the latter being the ideal because it strives to put as much of any networks’ capabilities at the ends of the networks and into as many people’s hands as possible. It is called maximizing the diversity of voices and it is a principle essential to any free press — digital, networked, or otherwise — and to the role of communications media in a democracy.

I think we need to push back against the tide. As part of my efforts to do so, over the past several months I joined with a number of groups and academics to produce a short video on the Conservative Governments proposed lawful access legislation. The efforts involved the Digitally Mediated Surveillance (DMS) research project (http://www.digitallymediatedsurveillance.ca/), the New Transparency project (http://www.sscqueens.org/projects/the-new-transparency/about), and features renowned Canadian academics discussing why cyber-surveillance and this lawful access legislation in particular is problematic for the future of privacy, democracy, civil liberties and the open internet.

The video is also part of a national campaign led by a coalition of academics and civil society groups, notably OpenMedia.ca, to on lawful access and cybersurveillance. One goal of that campaign was to have such legislations separated out from the Conservative’s Omnibus crime bill, and ensure the legislation receives full parliamentary debate (http://www.stopspying.ca/). That goal has been achieved. Now, it’s the tough part: the debate that will help determine whether networks will be designed and operated to minimize or maximize the collection and disclosure of personal information.

The full video, Unlawful Access: Canadian Experts on the State of Cyber-Surveillance, can be seen here:

An extended video interview with yours truly is available here:

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