Archive for the ‘CIPPIC’ Category

Teksavvy vs Voltage File Sharing Case Back in Court This Week

November 9, 2015 Leave a comment

Teksavvy and Voltage were back in court today exclusively over costs.  As some of you may remember, movie studio Voltage is seeking the identity of ISP Teksavvy users who allegedly shared the movie “The Buyers Club” over peer to peer file sharing networks.  Voltage wants to sue the Teksavvy users over copyright infringement, and Teksavvy was ordered to provide the info of users identified by Voltage sharing their movie.

This case will set a precedent for the telecom industry in Canada on how copyright complaints will be dealt with in the future.  As many of you remember I’ve commented a great deal on this case.  A summery of the policy debate I was a part of regarding this case, and how Teksavvy should have done a lot more to protect it’s customers privacy is here.

In this latest development, it appears that no technical challenge (or any legal challenge) of the evidence is going to be argued by Teksavvy.  Instead “new evidence” is apparently being filed to justify Teksavvy’s costs to take no position in court on the case.  Costs that the court found were excessively high.  IP Lawyer Howard Knopf’s most recent blog on this, is again another must read if you are following the case.  In it Knopf not just criticizes Teksavvy’s legal position but also questions CIPPIC’s role in the case stating:

Although CIPPIC is no longer actively involved on the file, the appeal material was eventually posted here by CIPPIC  late last week and this will be helpful to the public discussion generally and to law students in particular.  It will be recalled that CIPPIC stepped in earlier as an intervener, after Teksavvy took the position that it took no position, and sought adjournments so that CIPPIC could enter the fray. CIPPIC’s role was never entirely clear. It explicitly disclaimed any role in acting for Teksavvy or for the John or Jane Does. It did conduct some cross- examination and referred to the “hearsay” issue – the giant elephant in the room – in its written material in the disclosure motion but did not do so explicitly even once in its oral submissions before Prothonotary Aalto as confirmed by the transcript Teksavvy is trying to file. This may somewhat explain why Prothonotary Aalto’s decision does not once mention the word “hearsay”.

Knopf also went on to say:

According to the transcript of the substantive hearing before Prothonotary Aalto, CIPPIC was apparently more concerned more with broad “public policy” issues than with the more practical question of whether, in light of the BMG decision, there was arguably insufficient substantial, admissible, non-hearsay, and reliable evidence to justify denial of the disclosure motion and thereby stopping the case from even moving forward.

Questions on both Teksavvy and now CIPPIC as to why this case has gone this far when it didn’t have to, and Teksavvy customers privacy assured.


Teksavvy Could be Liable for Infringing on Consumers Privacy Rights

July 3, 2013 1 comment

After a lot of personal thought on this subject, I’ve decided that there needs to be one last response on this blog on this issue.  I think I have an obligation here to my readers to respond.  I’ve read both former CIPPIC lead counsel in the last file sharing case against BMG Howard Knopf’s recent post and telecom academic David Ellis’s recent blog posts on last Tuesday’s hearings.  While Knopf’s blog focuses on the law of the issue at hand and consumers rights under that law, Ellis’s post is more suitable to a dramatic movie script with little substance explaining consumer rights.

A few months ago I started an online debate with respect to the privacy issues at play.  A lot of very big academics and legal guys entered that debate as a result of me asking a lot of questions on the privacy issues relating to this case.  What resulted, was those in support of Teksavvy’s move were arguing based on Teksavvy’s past reputation as being pro-consumer and that we should all wait for the end game to find out what they were up to.  Those opposed where arguing law.  We’re now at the end game.

These debates brought out some very important information. The oversight on our privacy system is very simple.  If the evidence you receive on requests for customer’s information sucks so bad as it does right now, and you provide your customer’s information without objecting, you become liable as a business to any false accusations that arise as a result.  So “guilty by accusation” only occurs when businesses do not up hold their legal responsibilities under current law.  The law does need to change however.  Specifically to throw businesses that do not act within accordance with the law under the bus, and kicked to the curb a few times, especially in this current climate where private interests are so strong on detailed user information ISPs keep on its customers.

The evidence within the Teksavvy vs Voltage provided is so bad (even Ellis agree’s there are substantial issues) that this could have been done and over with in November in 2012 had Teksavvy objected to the motion.  Even if they end up appealing this case if information is ordered released, questions need to be posed as to why the CIPPIC was even needed here when this could have been done and over with in November.  Why it’s taken so long to get here when the evidence is so bad?  Why is Teksavvy putting up smoke and mirrors with respect to consumer rights, when acting as though they are a pro-consumer company when this case is an extremely simple one of privacy law and responsibilities of oversight? Just want to be clear I applaud the CIPPIC’s efforts here, but there was no need for them to be involved had Teksavvy dealt with this case properly.  The CIPPIC did the best they could under these circumstances, it’s Teksavvy’s legal job to test the evidence before the courts on the requests not theirs.

Ellis paints a dramatic picture of Teksavvy’s legal counsel throwing in a last-ditch effort to ensure users privacy is respected if the judge throws an order to release that information.  The fact is Teksavvy can be held liable if ANY information is handed out due to the evidence that’s in question in this case in accordance with the law, regardless of how Voltage tried to frame this with the evidence in Federal Court rules.  A lot of innocent people could be targeted as a result of any future orders to release information.  Considering Teksavvy’s legal advisers are not stupid, they should know all of this, and questions need to arise as to after all of this, Teksavvy is still not following through with its legal obligation to its customers.

The interesting part in all of this is Teksavvy’s decision not to oppose according it’s CEO was to bring online discussion on the matter.  Openmedia promoted that discussion online.  A lot of interested consumers and bloggers know where their legal rights lie in this case going forward as a result, and it should now be expected that Teksavvy follows through with those legal commitments or may end up being punished for not doing so by the customers they claim to protect and advocate for.  I think their customers now are fully equipped to see past what seems to be dramatic movie scripts for a good  legal drama that should be handed to Voltage producers (god knows they can use a few good script writers) from Teksavvy supporters, and see this as a matter of law and their rights on this issue.  If that’s not the case here, than the door has just blown wide open, were all anyone has to do is accuse you of something to obtain your personal data from your ISP. That’s a lot of unnecessary risk to take to make a point at the very end.

Synopsis of CIPPIC Cross Examination of Canipre’s Barry Logan

June 24, 2013 2 comments

The CIPPIC has filed it’s cross-examination of Canipe’s evidence with the court.  The court case will resume tomorrow.  I will do a follow up blog when I have sometime this week.  I’ve got a super busy week ahead.  Here are a few interesting and amusing points from the cross examination of Barry Logan the CEO of Canipre by the CIPPIC’s counsel David Fewer in the Teksavvy vs Voltage file sharing case.

1) Pages 32 – 39 deal with what an IP address is.  The CIPPIC as expected are arguing that and Internet subscriber and Internet user are 2 very different things. Very interesting exchange between Logan, Fewer (asking the questions), Voltages counsel Zibarras, and Teksavvy’s legal reps as well.  All except Teksavvy’s reps who remained silent on the issue, admit that there’s no way of identifying the actual infringer.

2) Pages 42 – 46 deal with defining bittorrent clients, and how bittorrent works, and a bizarre statement from Logan suggesting that users know how bittorrent works because it’s described in the “help files”.  The avg user doesn’t know what an IP address is let alone deciphering highly technical help files that require an intermediate level of networking knowledge to understand, or even know where the help files are located in most software from my own professional experience in software development.

3) Pages 46 – 58 deal with how Canipre specifically obtained it’s evidence and how that was collected.  Canipre is using software offsite and admined by an outside company.  Maybe important.  Voltages council also implied that they wouldn’t release the software developer’s name in fear that the CIPPIC’s clients (the public interest) would hack it.   Logan goes into an explanation that the software Canipre uses does not share the entire file on the internet.  Basically the software extracts data packets, and inspects data packets.  Those packets are matched up to a downloaded version of the file.

4) Pages 79 – 86 deals with Logan’s comments in the media around “speculative invoicing” or copyright trolling.  It seemed that Logan didn’t know exactly what to say on that, but Voltages lawyers were quite blunt in stating that’s exactly what they are doing.

My thoughts:  A lot of what I’ve read in this cross examination leads me to believe that Barry Logan doesn’t seem to be qualified for the position he’s taken.  Data forensics is often a field of work that requires extensive University level study and field work.  I have a family member with a Yale degree in data forensics.  The testimony Logan provided here raises more questions I think as to why the CIPPIC is doing this cross-examination rather than qualified techs from Teksavvy, who for all purposes could put this guy in the closet.  Teksavvy techs are more than qualified as working on the beginnings of the networks to put way more questions on Logan surrounding the technical aspects of data collection by Canipre.

I also think a closer inspection of the collection software Canipre is using is a must.  I think those following me know just how buggy data packet inspection software can be through ISP’s use of throttling.  Knowing people who work in the data forensics field I’m not satisfied with Logan’s response regarding what’s being collected on Canadians by Canipre. Most data forensics involves following your tracks online, and this information may be able to be used for targeting letters to users that push the right buttons to get users to pay up.

On the privacy side, I think we’ve seen over the past few weeks what a fire warrentless data collection has lit over Edward Snowden.  Warrentless data collection over telecommunications should be something the CRTC and the Privacy Commissioner may want to set guidelines for since our Conservative government doesn’t seem to be moving at all on their digital files.

Question still remains.  Will Teksavvy fulfill it’s legal obligations directly in court tomorrow?  From this cross examination on technical details (although I’m not a lawyer), I have very strong concerns as to why we are seeing the CIPPIC doing this considering the level of technical expertise of Canipre’s senior staff, obvious holes in Logan’s testimony, and Voltage reps on the record as being extremely uncooperative, and secretive at a time when the public is demanding answers by their own Government on data collection, let alone some half nut with a fake tech diploma saber rattling Canadians.  Hopefully tomorrow we’ll get answers.

*Just to add one more note, when you think of the data forensics field in which Barry Logan is suggesting Canipre is a part of, think more along the lines of a criminal forensics lab. This field of work is to gather digital evidence without prejudice, judgement or tampering following strict protocols.  Several times in this cross-examination the CIPPIC brought up prejudice against file sharers and media comments about locking them up by Logan.  You would never see that from a criminal forensics lab. Closer examination of the data capture software in which Voltages lawyers refused should be ordered by the court.

CIPPIC Hero of the Day Not Teksavvy

February 15, 2013 1 comment

Yesterday the CIPPIC has been given full intervenor status in the Teksavvy vs Voltage case.  That is indeed great news for Teksavvy customers who seem to have been left high and dry by their own ISP.

I have to point to yet again, another post by David Ellis on this subject. Ellis seems to be the “Charlie Brown” in all of this.  On one end Ellis seems to be really getting the user end, on the other very much supporting the telecom industry.   As a result, I think although welcomed, his opinion does not represent that of actual “life on the broadband internet”, and what we are seeing as users who have “boots on the ground” , and also what innovators have to deal with.  This is my main objection with academics and politicians in all of this.  You can post as many “theories” as you want,  but not fully understanding the situation on both the tech side, and user side complicates matters, misdirects and most importantly misinforms. As a new media innovator, most importantly as a Systems Analyst I’m trained to bridge that gap.

Howard Knopf is a practicing lawyer with years of experience in putting consumers interests forward within law. Micheal Geist is not a practicing lawyer and is the head of research in “e-business” and faculty of law at U of O.   Big difference with respect to how the TSI Vs. Voltage case is concerned in commentary on this case. Knopf is focused on Excess Copyright, and has stood side by side with Canadian creators against suing individuals, while Geist was a strong supporter of trolling (notice to notice provisions) in e-business during the copyright consultations.

To be honest and blunt, from my experience, college and university professors are often failures within industry. Teaching often is a “comp out” job of those who have failed to succeed in their respected disciplines.  Youth unemployment is over 14% in this country, and more than half of that blame needs to be going towards those in education providing obsolete training, and not preparing our work force for future jobs that come with innovation.   Those that have succeeded in industry often sit on the boards of the respected disciplines within post secondary, directing those instructing, my father at one point being one of them with respect to telecom, communications and now network security.  We need more successful people training our work force, rather than people with old ideologies and have for the most part failed in industry. In today’s world a degree might land you your first job, however it’s your experience and values that drive your success.

Looking in from the outside does not often provide you with the knowledge you need to make theoretical assumptions, especially when it comes to business models currently in play as a result of disruptive tech.  Academics have an important part of this debate with respect to bringing important information forward, however often fail with providing that information within context around adoptive and innovative business models within industry itself. Users are the driving force of change not academics and lawyers. That must be understood to present balance and a true “Fair Copyright For Canada”.

That being said, from a users perspective, we are emerging into Web 3.0 where your personal information is basically like the new gold or oil of the digital world from a business perspective. Because of the value of this information, it can also be subjected to abuse.  That’s part of my main concern with respect to privacy on the broadband internet.

The way our accountability and oversight system is built around personal information seems to be failing in large part because private interests will not step up to the plate with their legislated and legal responsibilities.  What consumers should take home from the privacy debates around Teksavvy vs Voltage is that if a motion to obtain account information remains unopposed, than courts usually grant the court order for that information no matter how spotty the evidence to obtain that information is. This opens up the door to potentially Orwell’s vision of 1984. If anyone can obtain your personal information, that could be subjected to false accusations, or even extortion specifically built on profiling of an individual’s personal information, tastes, likes, dislikes etc.  The same information is being used to market products to broadband users can be potentially used against them as well.

Ellis posts that he spoke with David Fewer of the CIPPIC, who seemed to be worried about the effects this will have in our democratic system, and the CIPPIC plans on bringing up some important, but yet primary points on this subject:

One concerns the protection of anonymous speakers on the Internet, which Fewer said is inadequate in Canada as the law now stands. He noted this issue is not confined to file-sharing, indicating the adjudication of this case may have ramifications that extend well beyond copyright

I’ve written about that on this blog as well. Ellis also stated:

Marc Gaudrault vindicated. Any minute now, I’m going to retire from the business of arguing that Marc did right by TekSavvy’s customers when he chose in December to push out notices rather than object to the Voltage motion. As I’ve noted previously, this decision created a deep split among pundits and commenters on discussion forums like DSLReports. Two months have gone by and CIPPIC is now officially a friend of the court in this matter. I think it’s high time we all stopped second-guessing Marc so we can focus our attention on what’s shaping up next.

Gaudrault is far from vindicated! In fact the position he’s put Teksavvy in as a result of their current actions, plays against what’s actually happening on the ground with respect to current life on the broadband internet, and what users are currently faced with.  Marc is a new and untested CEO.  For that I do give him some benefit of doubt, however this can go one of two ways if Gaudrault fails with oversight; either the market corrects his mistakes and wins over Teksavvy’s customers as a result (such as what Distrubtel has done) or possibly in the near future if the market doesn’t act on oversight with user data, government could bring in heavy regulations on the telecom market ensuring oversight on users information,  as what the EU is planning on doing in the near future, and also will be forcing on international corporations as well. Gaudrault has an important business decision to make, that will shape his businesses future.

Gaudrault cannot hide behind the CIPPIC. His vindication will only come when or if he decides to grow some balls and stand up directly for his customers and the principles us net citizens stand for!  Only then can Gaudrault be worthy of wielding the name Teksavvy and carrying on his brothers legacy

One thing I will give Ellis credit for is at least a tiny bit of understanding on what the media industry is going through:

Is file-sharing on the increase?

One thing has clearly changed in the battle between Big Content and the pirates. As the cases we’re seeing now in Canada indicate, individual studios and legal shops are taking up the battle just as the main industry lobbies seem to be backing off.

One thing has not changed, however, and that’s the exaggerated claims about the extent of file-sharing and the damage it causes. Take, for example, claims like “online file sharing is still growing steadily with more and more participants.” You’ll actually find that assertion right in the Wikipedia entry for the MPAA, updated this afternoon. The problem, as the editor’s note “citation needed” indicates, is there’s no supporting evidence offered to back up this claim.

So, what gives?

Every year, Cisco updates its comprehensive survey of global IP traffic, known as the Visual Networking Index, or VNI. According to Cisco’s 2012 projections for global Internet traffic (released May 2012), file-sharing traffic is actually growing at a projected CAGR of 26% from 2011 to 2016 (in petabytes per month; see Table 8). But in isolation, that figure is meaningless. Compare that to other traffic measures and file-sharing is slowing, not growing. Internet video traffic (all types except file-sharing) is growing at a CAGR of 34%. All other sub-segments (except VoIP) are also growing faster – including Web, email and data (35%), and online gaming (52%).

Ellis Concludes:

None of this means that legacy media are about to disappear. They will continue to fight off the disruptors as best they can, for as long as they can – or just buy them outright. But the trend we’ve started to see in Canada – mass litigation over infringement that isn’t really litigation – has come from a corner of the industry that doesn’t fit into any of the usual paradigms. Big Content may actually be more worried these days about Netflix than about the Pirate Bay, leaving an opening for Voltage, NGN and other small copyright trolls determined to carve out a special niche for themselves in the media landscape. How ironic Canadians are now confronted with this strange new creature, having just put the finishing touches on our “modernized” approach to copyright.

The focus needs to be on protecting innovators from hostile takeovers by incumbents on threat of copyright lawsuits. Process has trumped outcome.  Everyone is focused on compliance rather than how to drive change for a more profitable future within industry.  The dilemma around copyright is at the forefront of that change.  It’s too bad the US and Canada have opted out of that argument when it comes to the entertainment industry’s future. We have a lot of smart young people in politics, however trumped by a lot of older dumb cattle who are way too set in their ways! A large portion of the economy is reliant on bringing in change and innovation within the digital revolution.  One would hope those who have retirement plans in the near future take a long hard look at the economic future they are responsible in bringing in.  Their lifestyle will depend on it, and so will Ellis’s.

Teksavvy Appears to Have Failed to Address Privacy Responsibilities In Today’s Hearing

January 14, 2013 Leave a comment

While watching 3 twitter feeds today it appeared as though Teksavvy did directly challenge some of Voltages evidence, or signaled it’s intention to do so.  I even tweeted with respect to that.  Todays media reports paint a completely different picture. While I was not in the court room, it seems the calls that Teksavvy has come out from hiding behind rocks and sticking up for customers may be a bit premature.  I don’t think in today’s hearing they have completely satisfied their responsibility in that regard.  The CIPPIC has been granted intervention status, but that should not absolve Teksavvy’s legal responsibilities to its customers under privacy law, and in order for anything that’s done by the CIPPIC moving forward to stick in other cases, Teksavvy must get involved in directly challenging the evidence.  If a precedent is set by the CIPPIC, and ISPs are still hiding under rocks, it’s not going to be used going forward. I’ll explain in my forthcoming comments.

I’m going to be taking a few days off on blogging on this to watch, read and learn.  I’ve sparked off a bit of national debate on the subject, due to the legal arguments being used and my issues with them.  Clear information going forward is what consumers are entitled too.  There’s a lot to digest including some very important points for the future of digital policy going forward.

I’m also currently editing my podcast due up on Wednesday on a completely different and fun topic, last weeks Consumer Electronic Show. Once that’s done I’ll have some time to write a bit more on this, and by then I’ll have a clearer picture on what transpired in the court room today.

Validation of Legal Privacy Concerns with Teksavvy Vs. Voltage

Howard Knopf has an excellent post validating a lot of the privacy concerns I have raised with respect to Teksavvy Vs Voltage. While I’m not a lawyer, it seems that one of the top copyright lawyers in the country tends to agree with a lot of the concerns I’ve raised around privacy and the legal role of the ISPs around copyright law. The first is with respect to ISP’s taking a “neutrality” status. I stated:

Me: “Teksavvy went as far as to say they can’t get involved in defending due process because the new copyright laws say they have to remain neutral. In fact nowhere in the new copyright legislation does it mention ISPs, service providers, neutral or safe harbor. It was however supported in the copyright consultations that, ISPs should be exempt from copyright infringement liability simply because they act as intermediaries. Basically under notice to notice, this would mean all they had to do was to pass the information from a plaintiff off to their consumers to be exempt from copyright damages.”

Knopf backs up this claim stating:

Knopf: “There is no reason to believe that the taking of active, reasonable and responsible steps by an ISP to safeguard and preserve its customers’ privacy would in any way jeopardise the ISPs cherished “neutrality” status. There is nothing in existing Canadian law or the still un-proclaimed provisions of Bill C-11 that would point to the contrary. What is apparent, however, is that ISPs are subject to PIPEDA privacy law and cannot divulge customer’s private information in a mass copyright litigation case without the customers’ consent or a court order. In the BMG decision in 2005, the Federal Court of Appeal (“FCA”) made it clear that:
“Pursuant to PIPEDA, ISPs are not entitled to “voluntarily” disclose personal information such as the identities requested except with the customer’s consent or pursuant to a court order.”

Defending privacy is in no way whatsoever tantamount to encouraging or even tolerating piracy.”

Another quote from my post with respect to how privacy is handled in court:

Me: “To explain further; It’s businesses that assume any and all legal risk when it comes to their consumers privacy. If a motion to obtain account information is not opposed in court, it sends the message to the judge that the business agrees with the legal merits of the request. Judge’s very rarely look at the merits of the request unless the businesses oppose that requests, because businesses assume the legal risk if that request is found to be without merit at a later date.”

Three points Knopf brings to the table in his latest post I wanted to bring to my readers attention. The first:

Knopf: “Indeed, it is conceivable that in some cases there may be a real risk in not challenging the adequacy of the disclosure order material, both in terms of a business and even, conceivably, a legal sense.”


Knopf: “Flash forward from 2005 to 2011 when Voltage Pictures sought disclosure of customers’ private information from certain Quebec-based ISPS, one of which, Vidéotron, was actively on side with BMG in 2004. In any event, the ISPs simply took no position and did not oppose the order or even appear at the hearing of the motion. The Federal Court was apparently satisfied with the paper work that was presented and left unchallenged. The proper parties had been served. Understandably, the court granted the order. It is not the court’s role nor is the court equipped to conduct its own investigation, which might even require cross-examination, into the adequacy of such material.”


Knopf: “Our judicial process is based upon the “adversarial system”. If nobody steps up to the plate to oppose a proceeding, and the paperwork is in order, the Court cannot be expected to conduct its own inquiry as to the adequacy of the paper work. A non-profit organization such as CIPPIC cannot be expected to intervene in every instance of inadequately framed mass litigation disclosure motions simply because others who could or should do so are unwilling or don’t care. In any event, it cannot be assumed that an intervener such as CIPPIC would be given the right to cross-examine on an apparently problematic affidavit, if this were in fact the situation.”

One of the things this tells me is that my line of questioning around the privacy issues surrounding the Teksavvy case is correct. A lot of my arguments with respect to the law surrounding the privacy concerns are correct. Teksavvy has been front and center on consumer issues. Marc Gaudrault the CEO of Teksavvy is a super nice guy and well liked. I have nothing against Marc or Teksavvy other than how this all came down. Right from the get go, I’ve been hammering these privacy issues and rightfully so.  Consumers need to be made aware of what’s actually happening here.

It’s important that those affected by this do have the right line of questioning with respect to independent legal advice as well, to make sure that their rights are being adequately protected by their ISPs. If that turns out not to be the case, than consumers need to take note of this. This could have profound impacts on not just copyright, but by not challenging the legal merits of requests, opens the system up for mass abuse. That in itself should not be acceptable, and questions as to why Teksavvy (of all ISPs) is not questioning this and opening the door to such abuses by the legal arguments they made around “neutrality” is extremely concerning, not just for consumers, but also the business community as well and their respected ISPs.

Knopf’s entire post is excellent and a must read on where current copyright law is right now, and the law surrounding ISPs role in all of this.

Massive Stakes for Online Privacy in Teksavvy Vs Voltage Court Case

December 21, 2012 1 comment

Over the past several weeks I’ve been aware of the debate surrounding ISPs handing out costumer account info on copyright infringement.  Media reports are full of “illegal downloaders” “you will get sued if you download” “ISPs ordered by courts to provide information on file shares.” Canadians are concerned and for the most part even those not effected by the copyright trolls or who don’t download feel violated. I know several businesses and consumers are writing to their ISPs on privacy concerns through this, and some ISPs have responded vowing to take their customers privacy seriously.  This post explains some interesting developments I think everyone needs to be aware of.

The privacy implications currently being debated in court on the Teksavvy Vs Voltage case will have a tremendous impact on everyone’s online privacy rights, not just Teksavvy customers, and not just on downloaders, but businesses, consumers, politicians, everyone will be affected by this in one form or another.  I can see why the CIPPIC involvement here is essential, but so is how we got here.  That’s going to take some explaining.

So let’s try to unravel the pandora’s box so it makes some sense.  For that lets start with what the actual law,  the new copyright law states:

“38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,

(a) in a sum of not less than $500 and not more than $20,000 that the court considers just, with respect to all infringements involved in the proceedings for each work or other subject-matter, if the infringements are for commercial purposes; and

(b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.”

There are 2 types of civil damages.  Punitive; which means pay because you broke the law, and statutory meaning you pay a set penalty the if the plaintiff can prove financial harm.  In Canada the judges are more likely to award damages more closer on what the actual harm has been to the plaintiff rather than award damages to punish people.  In the US however punitive damage awards are offered up more. As one of my American family members put it “We sue everyone and everything because if you have a dispute this is how we settle it.” In Canada we settle things usually over beer, or a peace pipe and leave the courts out of it for the most part.

Now for the interesting twist to all of this.  In copyright cases in the US, there has never been a case I am aware of, where actual economic harm has been determined.  In 2010 the US accountability office couldn’t even come up with numbers on how piracy and online piracy is effecting the US economy if at all.  In over a decade this has been studied and there is no conclusive evidence that economic harm has been created by a non-commercial infringement.  There’s an economic reason for that.  It’s called Creative Destruction, which is now widely excepted as fact when looking at the economic numbers from the media industry.  I will have a later post after the Q 4 profits are announced, that will bring up some independent economic research to everyone’s attention, and further explain what Creative Destruction is, but short answer, there’s like a 0.1% chance of being held liable for non-commercial infringement in Canada due to the requirement of proving economic harm to obtain those penalties. Yes there are some that will starkly disagree, because they hold the “ideology” that downloading is bad or stealing, rather than looking at the economic facts which strongly do not support that way of thinking.

During the copyright consolations the Canadian Association of Internet Providers  (CAIP) which represents several indie ISPs provided this statement on the importance of a notice to notice approach (it’s important to note Rogers, and Bell supported this approach as well) Jay Thomson from the CAIP stated this in the Toronto Round table in 2009:

“Notice-and-notice has always made more sense than any other proposed regime because it addresses the primary vehicle for on-line infringement, P-to-P file sharing. And it does so directly, efficiently, and proportionately while respecting due process. It does not take much to imagine how a parent will react when he or she receives a notice advising them that activity by a family member — dare I say a teenaged son or daughter — has exposed the family to possible and very expensive legal action.”

To an extent, the notice to notice approach would facilitate an ideological form of copyright trolling so it’s not surprising knowing this, that this would be exploited somehow by rights holders.  Now it’s worthy to note the notice to notice approach is not in place in law right now, however other than the legalization of non-commercial infringement, or the flip side getting your internet cut off for infringing, trolling is their only option under the new legislation and the balanced approach many experts fought for and was agreed upon by Government and your ISPs.

Now that we understand why we are in this position, as the pandora’s box opens even more, things are becoming much worse than some kid downloading a movie, or tune and that is that  ISPs are currently not challenging the court orders on subscriber information to ensure due process they fought on consumers behalf to get in the consultations.  This is creating an environment where your right to privacy is basically being thrown out the window on copyright infringement accusations.  And the reason why, because it costs ISPs money to ensure due process is respected.

Teksavvy went as far as to say they can’t get involved in defending due process because the new copyright laws say they have to remain neutral. In fact nowhere in the new copyright legislation does it mention ISPs, service providers, neutral or safe harbor.  It was however supported in the copyright consultations that, ISPs should be exempt from copyright infringement liability simply because they act as intermediaries. Basically under notice to notice, this would mean all they had to do was to pass the information from a plaintiff off to their consumers to be exempt from copyright damages. Safe Harbor was the term coined to that policy.  To my understanding, safe harbor provisions do not and would not exempt an ISP in ensuring due process prior to handing out requests for account information from plaintiffs assuming these provisions currently exist in the first place.

To explain further; It’s businesses that assume any and all legal risk when it comes to their consumers privacy. If a motion to obtain account information is not opposed in court, it sends the message to the judge that the business agrees with the legal merits of the request. Judge’s very rarely look at the merits of the request unless the businesses oppose that requests, because businesses assume the legal risk if that request is found to be without merit at a later date. All ISPs thus far over the past few weeks have not opposed the legal merits of the request coming from rights holders. This is how consumers information is being handed to the copyright owners. However one party has, which in my mind brought up questions and serious concerns as to why ISPs are not opposing the legal merits of these requests thus ensuring due process.

The CIPPIC has an excellent submission to the court on its intent to intervene calling into question the evidence submitted, the intent of the Hollywood studio to bring these cases to trial. Remember no economic evidence exists to prove economic harm to even be qualified for the statutory damages in the first place. I will have more on this in a later post.  The CIPPIC goes then into a description of copyright trolling. So why haven’t ISPs taken this stance in opposing motions for a court order for account information? Remember defending due process costs money, in this case it might be big money.  Here’s what’s at stake:

There are several rules that a court looks at when a motion for information is opposed.  One of them is Federal Court Rule 238.  Basically judges  weigh whats in the public interest, the case going forward or the right to privacy which is what Voltage is trying to get to happen.  Think of it as the scale of justice.  Whichever holds more weight, wins. And excellent discussion on this can be found here, and the differences between what happened in 2004 to what’s going on now. The last paragraph is concerning.  It states:

 “Even though these types of lawsuits started off on the wrong foot in 2004, there appears to be a current upswing in their popularity, both in the US and now in Canada.  The results of these preliminary cases will determine the legal landscape for equitable discovery of Internet infringement cases in the future.  Since it is almost certain that the goal is to obtain names and addresses of the individual infringers and then settle with them, the results of these very earlier cases will be absolutely determinative of individual privacy rights on the Internet.”

This has Supreme Court written all over it, with consumers screwed on both sides of this. Civil liberties, privacy and consumer advocates are now left to pick up the pieces because ISPs won’t.  The sad part is, this is all over an ideological argument that doesn’t even have enough evidence behind it to even have a successful day in court, and that those advocating for the notice to notice approach somehow want to social engineer Canadians into thinking it has? Non-commercial infringement should have been legalized, and I’m sorry ladies and gents, will be down the road and after these attempts of copyright trolling are dealt with, that might just happen.

But one thing I’m certain is going to happen, when the copyright lobby loses they always get a severe ass kicking on the way out.   SOPA is just one example.   They will lose here because we’ve already had the “individual privacy rights on the internet” debate on a national scale around lawful access exactly one year ago.  It is incomprehensible that Canadians would find it acceptable to give those rights up over a copyright infringement accusation, when we won’t even let government near that information.  The public interest is on internet privacy, it’s too bad ISPs don’t see this past their own self interests, and politicians can’t see past their own pocket books. Settle in folks, it’s going to be a while before this is dealt with.  In the mean time, know what your rights are and get ready to fight.

*Part 2 of this post can be found here

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