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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.

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.

Teksavvy Vs Voltage: CIPPIC Files Educational Affidavits

The CIPPIC has filed what I would call more “educational briefs” last week to the court in the Teksavvy Vs. Voltage case, rather than a knock down blow to Voltage as some may have suggested.  One of the affidavits comes from tech expert Timothy Lethbridge who explains in detail to the court on what an IP address is.  This is something that any low level tech monkey from Teksavvy is capable of providing had Teksavvy opposed the motion to begin with.

The second affidavit is from Alexander Cooke a student working for the CIPPIC.  In Cooke’s affidavit he centers on Voltages conduct in the US, which anyone who knows how to use google and following the copyright debates, should be fairly easy to pull those records up as well, or even by way of connecting with the EFF.

Unless Teksavvy stands up directly in court and opposes this motion, I don’t see how the public interest has been served here at all.  Public interest can only be served in my point of view when a company fulfills its obligations under law to its customers.  This is how the system is supposed to work, and does work.

For those of you who may think the privacy issues are “moot”  in this case, may want to rethink that.  Those issues just became nuclear now with a real possibility Canadians could start to see jail time for copyright and trademark infringement with the ratification of ACTA. One thing commentators can agree on is that there’s a fight coming.  In my opinion that fight will be to ensure the “public interest” isn’t falsely represented by those who have “special” interests, and that our policy and regulatory system opens up to the general public, rather than to a selected few leading our law makers to believe they hold the public interest with their opinions.

Those that advocated for the notice to notice troll approach in the 2009 copyright consultations are just as guilty for bad public policy and law we are currently dealing with, as those who are trying to take advantage of it in this current legal case.  Karma falls on their back to correct this and start advocating for users of this technology (who represent the public interest here) until such time as they can speak for themselves in committees and to our regulatory system around copyright.  That responsibility falls on not just on those who took part in the 2009 copyright consultations, but also for private interests such as Teksavvy to hold up their weight as well.  Only than can the “public interest” truly be served in the current copyright troll cases.

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.

CIPPIC Set to Intervene in Teksavvy File Sharing Case

December 15, 2012 Leave a comment

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.

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