CIPPIC Set to Intervene in Teksavvy File Sharing Case
The Canadian Internet Policy and Public Interest Clinic (CIPPIC) has submitted to intervene in the recently reported court case where Hollywood film studio Voltage is going to court on Monday to force Canadian Independent ISP TekSavvy to hand over 2000 names and addresses so Voltage may pursue copyright damage claims. The CIPPIC is a Public-interest foundation examining Internet issues, and have often intervened in court cases even at the supreme court level on digital policy issues.
I will have comments on this submission and the entire case later on next week in an audio blog/podcast. As for the CIPPIC submission a few interesting details. First the CIPPIC widely expect Teksavvy not to oppose the motion which considering a very long thread on the matter by their customers, should have happened. The CIPPIC stated:
“It is our understanding that Teksavvy Solutions Inc., the third party whose subscriber information the applicant seeks, does not intend to oppose the motion”
The CIPPIC also brings up questions relating to the swift timing of any decision like this and it’s impacts on defendants in these mass lawsuits:
“We also regard it as unlikely that defendants will have had sufficient time to retain, be advised by and instruct counsel on opposition to this motion.”
Another very interesting tid bid of information relating to the submission is that copyright holders in the US have tried sending out mass litigation notices without the expectation of litigation. Basically the goal of this tactic was to threaten lawsuits so that defendants would pay up without any possibility of lawsuits ever making it to court. One US judge described the tactic:
“The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial.”
Thus companies that use this tactic are often referred to as copyright trolls. The CIPPIC had quite an interesting read on copyright trolling in their submission:
“As noted above, the applicant has in the past engaged in similar mass litigation in the United States. The applicant’s business model for such litigation has earned it the label of “copyright troll”. Trolls’ business model involves alleging that consumers are liable for copyright infringement, and demanding compensation under threat of litigation. The compensation demanded invariably grossly exceeds the damages a troll might expect if the troll were to actually litigate and obtain judgement and a damages award. However, such compensation does not typically exceed the cost to a defendant of defending the action. Enough defendants will choose to pay rather than defend to make the scheme profitable to the troll. The troll typically never litigates through to a judgement, since the costs of doing so would render the scheme as a whole less profitable. The troll’s business model, thus, is an arbitrage game, exploiting judicial resources to leverage defendants’ fear and the costs of defending into a revenue stream. And, of course, no part of these revenues finds its way back to the court to offset costs borne by the taxpayer as the judiciary plays its inadvertent role in this scheme. In CIPPIC’s view, such a purpose is improper and bars the applicant from establishing a bona fide claim.”
I’ll have more extensive coverage on more of the points raised by the CIPPIC in their submission on evidence and previous court cases later next week in my blog/podcast. We’ll also examine this issue with a special guest and telecom expert. But the point I was trying to get across here is why it took the CIPPIC to intervene in this case, when it was almost expected that these points should have been brought up by Teksavvy in defending its client base, and is not expected to oppose the motion when most of their customers demanded the opposite, leaving their customer base to fend for their own which is representative of not just this ISP, but most when it comes to the copyright debates? Considering Teksavvy’s approach to consumer issues in the past, not opposing this motion may prove damaging to them.