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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 vs Voltage Going to Appeals

Teksavvy has filed an appeal on costs in the latest legal battle over file sharing in Canada involving Voltage pictures.  Copyright Lawyer Howard Knopf has written an excellent blog regarding the privacy implications of what has taken place to date, and has a different take on the privacy implications of the previous court decision than Micheal Geist. Knopf worte:

I must respectfully and explicitly disagree, which I rarely do, with Prof. Michael Geist; however, I must do so about this case. He has been very supportive of TekSavvy throughout. He had a blog the other day entitled “Defending Privacy Doesn’t Pay”.  In my view, it would be more accurate to say that defending privacy can and does pay if done vigorously and out of principle – both in terms of legal costs and subscriber good will. Moreover, full indemnity legal costs are very rarely recovered in Canadian litigation. Responsible ISPs should expect to incur some non-recoverable legal costs for defending their customers’ privacy as part of their “cost of doing business”. Indeed, speaking generally and not necessarily about this case, it’s arguable that ISPs have a positive duty to actually oppose ill-founded motions for disclosure and that failing to do so could expose them to liability – but that’s another topic for another day.

Knopf’s blog is a must read for those who are following the case regardless of the position you have taken.  Knopf also points to an article in which lead legal council for Voltage is implying that Voltage may seek “actual” costs when going after downloaders which I find extremely interesting:

Zibarras explained that plaintiffs in piracy cases can opt for statutory damages or actual damages. The former are awarded automatically once it’s been proven in court the defendant actually did download the movie. The latter, actual damages, take into account how much money the production company may have lost due to the downloading and subsequent distribution.

In 2013 the US’s first file sharing case involving Jamie Thomas-Rasset made it’s way up the appeals process to the supreme court.  Thomas-Rasset was sued $222,000 for sharing 24 songs, in which her lawyer found that amount to be rather excessive and punitive, and wanted the case to be closer to the “actual” damages that occurred.  The Obama administration filed an interesting defense under which it defended the $222,000 ruling stating essentially that if actual damages were sought, than it would leave copyright holders unable to enforce their rights under law, and the US Supreme Court should not hear the case.  The Obama admin stated in the briefing:

“The public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement,”

The US Supreme Court decided not to hear the case and sided with the Obama admin.  This is why those following this case need to be properly informed.  Both Teksavvy and Voltage have their own interests, all of which seem to be trying to manipulate the public view to their advantage, which does nothing to properly inform those Teksavvy customers affected.  It’s an unfortunate situation, one I hope stops in the appeals process, or at least the courts can rise above all of this.

Indie Telecom Lobbying Efforts Putting Users at Risk

January 13, 2015 Leave a comment

I recently wrote about how BMG/Rightscorp have been providing false and misleading notices for ISPs to hand over to users suspected of downloading.  While most are focusing on the Government, questions have arisen on what role these ISPs have in the new copyright legislation yet again.  Those questions became quite the discussion in the comments section of Micheal Geists latest blog.  One poster identifying himself as an ISP insider from an indie ISP came out stating that most agreed the legal risk to ISPs on withholding these notices was minimal:

I think that most people would agree, including I suspect most lawyers, that if it were tested in court that ISPs would probably be exonerated for not forwarding these notices.

So why the public fiasco?  Well turns out after a lengthy discussion on Geists blog, that indie ISPs seem to want a zero risk approach when dealing with consumer related issues.  They wanted complete clarification within law, so that there was no inherent risk to the ISP for not forwarding these notices.  Not even a 0.01% risk.  So they piped up, made the issue public in an effort to use public discourse to essentially lobby government for a zero risk approach to protect their own business interests, rather than assuming a small amount of risk in these copyright complaints.

Openmedia has come out with an interesting tool today supporting those lobby efforts, asking people to sign a petition to get Government to stop misleading copyright notices in law.  The government has already responded, by posting information on those notices to consumers.  There are also reports that most if not all ISPs are not forwarding off these misleading notices with the governments blessing.

The problem for this Openmedia petition though, is the government is in the process putting in laws which may allow for the sharing of your personal information by Industry Canada under bill S-4.  Presumably, those who write in concerned about misleading copyright notices would be those that would be affected by those notices (ie. peer to peer users).  Bill S-4 proposes:

an organization may disclose personal information without the knowledge or consent of the individual… if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Government could very well disclose the information you provide through this tool to rights holders to some day identify repeat offenders, or even breach of an Internet providers contract without your knowledge or consent.  This tool is an inherent risk to users privacy as a result, and not a very well thought out process by Openmedia who should be putting internet users above the lobby efforts of it’s telecom financial supporters.  Openmedia should be very well aware of inherent risks this tool poses with proposed legislation in the pipeline.  Openmedia should also be re-thinking it’s approach to supporting a telecom sector, which has no intentions of sticking their necks out for consumers as long as there is risk involved in doing so.  To continue support for this sector, contravenes the very values this organization is fighting for.

Governments Cyber-bullying Front Man Gets Taken To Task Online

January 10, 2015 Leave a comment

Glen Canning, the governments’ sales person on the controversial cyber-bullying bill has received a lot of flak recently from internet users over the past few days, for tweeting out a compromising picture on social media of an MSVU professor.  Those that have followed the cyber-bullying legislation through committee know that Canning was a stark defender of the cyber-bullying bill; often coming out strongly against those who had privacy concerns on the bill.

Canning’s daughter killed herself when compromising pictures of her were circulated online, and was aggressively cyber-bullied as a result of those pictures.  The Conservative Government had a hard time getting victims’ rights groups to fully support the controversial bill which enshrined into law lawful access provisions allowing the police warrant-less access to an internet users information.  Eventually they put Canning (a grieving father) front and center on the bill which polarized the debate around the bill.  Canning became a supporter of lawful access, and quickly became a polarizing figure in the debate surrounding the cyber-bulling bill as a result of his support for police access to information without judicial oversight.

Canning was recently approached by a female student at MSVU as a result of one of her professors trying to engage in sexual activity with her.  The professor sent her a nude photo of himself, in which landed in the hands of Canning, and was also sent to media outlets.  Canning (who I believe was well intentioned) tweeted out the photo prior to media reports on the story to try and gain public attention to this students’ case.  This lead to a lengthy discussion on reddit, social media, and blogs regarding Cannings’ actions since the cyber-bulling bill that was recently passed has a provision dealing with unauthorized sharing of intimate images.  Canning quickly removed the tweet, and continued to defend his actions.

Section 162.1 of the new cyber-bulling bill states:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

It’s important to note that the cyber-bullying bill has yet to come into effect, so questions and debate around this case would be purely speculation, and whether the Canning image tweet qualifies as enforceable under the act, is also entirely open for debate.  One thing is clear cut though.  From the back lash that Canning is getting surrounding this issue, it’s clear that many Canadians have been closely following developments surrounding the new cyber-bullying bill, and the take home from all of this should be that Canadians are very concerned about their rights regarding this bill.

What I don’t agree with; the Government using a grieving parent to play politics and sell a bill that attacks Canadians rights. Canning has become a polarizing figure in this debate around cyber-bullying that I believe was intentional by design regarding the politics of the situation.  It’s quite easy for Government to distance themselves from Canning now that the bill has been passed, and I would strongly suspect that this will happen as a result of the online debate around Cannings’ tweets that will most certainly continue into the halls of parliament.

While I’m not defending Cannings’ move in tweeting these photos’, it’s apparent that there are underlying political issues surrounding this bill, and the debate needs to be focused away from grieving parents, and on to a so called “responsible” government who’s used Canning in an attempt to deflect political attention away from the Conservative party on a controversial bill that the population is extremely concerned about.

I quite strongly disagree with Cannings’ views regarding internet privacy,  as a father myself I have a great amount of respect for this person.  If I had lost a child in the way Canning did, I couldn’t care less about privacy.  That would be fraternal instinct, and I would be acting in much the same way Canning has been throughout the debate.  The government knew this on the political side of things, which is why Canning became front and center on this bill.  The new cyber-bullying bill C-13 is a bill that’s been sold on emotion, not substance, and those that disagree with the bill should note we have an election in a few months’ time.  Rather than attacking a grieving parent, Canadians should be using their right to vote to signal their discontent.

Any politician that has used grieving parents in the way the government has done to sell C-13, in my opinion doesn’t have the moral authority to lead, nor should command our respect at the voting booth.

Copyright Notice Scheme Fails in 8 Days Due to Trolls

January 8, 2015 1 comment

Since January 1st 2015, Canadians that download off of bit-torrent started to get “copyright infringement” notices.  I’ve even questioned the amount of money Canadian Internet providers could make on the process.  The questions I raised ended up being used in court.  Today however, many Canadian Internet users are not getting notices of infringement from music publisher BMG. They are receiving legal threats through this system only eight days in.  As Micheal Geist (emphasis added) reports:

The notice falsely warns that the recipient could be liable for up to $150,000 per infringement when the reality is that Canadian law caps liability for non-commercial infringement at $5,000 for all infringements. The notice also warns that the user’s Internet service could be suspended, yet there is no such provision under Canadian law. Moreover, given the existence of the private copying system (which features levies on blank media such as CDs), personal music downloads may qualify as private copying and therefore be legal in Canada.

BMG is using a company called Rightscorp to track infringing users online.  Rightscorp is a well known name in the US for helping launch massive copyright lawsuits against internet users, and is on the brink of bankruptcy.

The notice sent by BMG/Rightscorp (which is viewable on Geist’s post) also threatens to cut off infringing users Internet access (which the law doesn’t permit) and falsely informs Canadian Internet users on the new law.   Users that receive these notices are also asked to pay a $20 fee to make these problems go away.  It’s important to note that if you have received this notice or any other through e-mail, your identity is not currently known.  Geist summarizes:

In a nutshell, Rightscorp and BMG are using the notice-and-notice system to require ISPs to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.

With Canadian Internet providers making a nice profit off of disclosing their customers information with a court order, will Canadian ISPs stand up to this abuse of the system, or as the case with US telecom, leave Internet users to their own devices and cash in on disclosing their users identities?

Users should not respond to these types of notices or attempt to settle.  It would provide information about you to copyright holders that they don’t currently have, which could include financial information, your address and phone number.

Self-Expressionism And The Hypocrisy of Politics

January 8, 2015 1 comment

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(Credit: Olive Bites Blog)

Yesterday like many across the world, I became glued to newscasts as events unfolded in France regarding the shooting of satire cartoonists, and journalists. These innocent lives were gunned down in a rampage because a newspaper decided to publish satire portraits of the prophet Mohammad. What followed was an immediate and swift condemnation of an attack on freedom of expression by these terrorists from most global leaders.

What is freedom of expression? Freedom of expression to me is the ability to express myself freely without the worry of being gunned down by terrorists, or jailed for expressing certain points of view. This goes hand in hand, in my opinion with freedom of speech. It’s essential to a democracy to be able to question the politics or ideology of any given topic. Democracy is about different views, and the ability to express those views no matter how distasteful some of those views can be without fear of persecution, or censorship.

Every religion has been guilty of suppressing self-expression. Leonardo Da Vinci had a love for the human anatomy, and often disagreed with the Christian pope at the time. To study what we consider science today in Da Vinci’s time was considered blasphemy by the church, and punishable by death. Think of where the world would be now if Da Vinci and others of that time period were able to freely express their scientific views without persecution. The advancement of human knowledge is also a benefit of self-expression.

As events unfolded in France, I began to start questioning the Canadian response. First the CBC’s editorial staff refused to show the cartoons in question, in an attempt to accommodate the Muslim faith. I wouldn’t have thought twice about it if it were not for yesterday’s events. Those cartoons after yesterday became an important part of a global news story. Journalists have a responsibility to cover the facts of the story, and report it in full without fear of retaliation. The CBC is a publicly funded organization and should hold democratic values of free expression, which sadly were not present yesterday during the initial reporting of the events. Here is an example of one of the cartoons:

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(French Translation: Love is stronger than hate)

Another troubling aspect is the fact that these terrorists were known to authorities. In an age of mass surveillance even people who are known to have terrorist backgrounds keep slipping through the cracks. This is now becoming a considerable theme across the globe since the Boston bombings a few years ago, and the frequency of these attacks in recent months strongly suggests that the policy of mass surveillance is inadequate to prevent any future attacks. In fact it looks to be doing quite the opposite. Too often than not, hard police work and targeted investigations are lacking even on known suspects.

After 9/11 the US gave birth to a state run security sector and public dollars flowed into private security firms. Today that security sector is huge and continues to grow with Canadian companies also benefiting. We’ve ended up giving away our right to privacy online as a result of events like yesterdays. We’re spending vast amounts of money beefing up our surveillance capabilities, and yet these known perpetrators who commit these horrible acts of terror are continuing to do so at an alarming rate. With today’s surveillance capabilities, shouldn’t we be seeing a significant decrease in these attacks?  With the capabilities we have in place today, there should be no excuse for this.

Yet every time society goes through these types of attacks, the private sector security lobby has no problems lining up at the door of public coffers. This lobby is now very strong and keeps stating we need to give up more of our constitutional rights, and enable more failed national security mass surveillance policies to prevent future attacks. Since our Conservative politicians are mainly twits (and could care less about civil liberties), rather than looking at the past decade and learning, they just throw money at the situation, and pass laws that undermine the importance of freedom of expression by attacking our privacy.

What does privacy have to do with freedom of expression you ask? Ask yourself this; if Da Vinci lived 10 years from now with no expectation of privacy, would he become the artist we know him today? A lot of Da Vinci’s most provocative works were hidden from those that would have certainly put him to death if they found them. Some of those works are still being unearthed and studied even today. If he didn’t have any private moments, what would we know of Da Vinci today? Will we end up even having our own private thoughts of self-expression in the future, or will give into those who claim to protect us and are financially benefiting from fear?

If politicians are serious about defending self-expression as so many did yesterday, why then are they attacking the very core of that expression by diminishing the very right to privacy (in the name of national security), where that democratic right of self-expression is birthed? If we can’t freely express ourselves in the privacy of our own homes, through private communications, or through the public without “fear” of prosecution or government listening in, than those that died yesterday, did so without purpose, or meaning and not in defense of core democratic values.

Following The Fallout of The Teksavvy vs Voltage Decision Pt 1

February 26, 2014 1 comment

I think it’s important that others with concerns now come forward within the legal community.  As the “sensationalist” media posts of all of this die down, and people have time to reflect, the conversation will shift from the PR talking points to what really matters in this situation as it pertains to privacy and online rights.  At least I’m hoping it will.  This decision will impact all Internet users in Canada regardless if you download or not.  I will continue to watch reaction, and continue to accumulate links and info to post on this blog.  For more immediate notification of info, please follow my twitter feed.

From an article on the decision on Torrentfreak:

CIPPIC adds that Teksavvy shouldn’t hand anything over to Voltage, as this will “infringe the privacy rights of the subscribers and may affect the scope of protection offered to anonymous online activity.” CIPPIC fears that any ruling in this case could have a detrimental effect on whistle-blowers and others who leak documents in the public interest.

A view also backed up by a poster on the blog for Comparative Law: Privacy and Data Protection course at Osgoode Hall Law School.  The commentator posted:

It makes me wonder whether people will argue that their privacy has been infringed upon due to the unauthorized identification, and whether this has the potential to flood the legal system with various cases.

For the legal savvy and from The Court which is an online publication of the Osgoode Hall Law School :

This decision does seem to establish an effective filter on Norwich order motions made with a view to copyright troll potential infringers. But in ordering the release of information about the identities of Teksavvy users, the FCC has given the green light to other companies following the same path as Voltage—gather IP information, establish a bona fide case, and aggregate enough potential claims to make the claims cost effective despite the statutory ceiling on individual damages.

In effect, this decision establishes a process for copyright holders to pursue claims against alleged infringers. Copyright trolls may be barred from compelling ISPs to release their customers’ information through Norwich orders, but copyright holders who are serious about commencing litigation now have an important precedent to use against alleged infringers.

More to come soon.

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