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News

Voltage Pictures Launches Canadian File Sharing Lawsuit With Reverse Class Action Strategy

Voltage Pictures, which previously engaged in a lengthy court battle to require Canadian ISPs to disclose the names of alleged file sharers, has adopted a new legal strategy. This week, the company filed an unusual application in federal court, seeking certification of a reverse class action against an unknown number of alleged uploaders of five movies using BitTorrent (The Cobbler, Pay the Ghost, Good Kill, Fathers and Daughters, and American Heist). The use of reverse class actions is very rare in Canada (only a few have been reported). There were attempts to use the mechanism in copyright claims in the U.S. several years ago without success.

The Voltage filing seeks certification of the class, a declaration that each member of the class has infringed its copyright, an injunction stopping further infringement, damages, and costs of the legal proceedings. Voltage names as its representative respondent John Doe (linked to a Rogers IP address). It admits that it does not know the names or identifies of any members of its proposed class, but seeks to group anyone in Canada who infringed the copyright on one of the five movies. Voltage does not say how many people it has identified as infringing its copyright. It urges the court to issue an order to stop the infringement and to assess damages to be paid by each person.

The case raises many questions, most notably whether a reverse class action can be used an effective technique to target copyright infringement. Class actions typically involve a representative plaintiff who represents many others who have suffered the same harms from the actions of the defendant. Reverse class actions feature a single plaintiff (Voltage) and multiple defendants (the alleged file sharers). The most comprehensive examination of reverse class actions in Canada I could find comes from Ian Leach, who notes that while the strategy has rarely been used, there have been a few such cases in Ontario (the federal court rules have similar provisions).

There are several barriers to starting a reverse class action. In 2013, an Oregon court dismissed a similar Voltage lawsuit, concluding that the company “was unfairly using the court’s subpoena power in a “reverse class-action suit” to save on legal expenses and possibly to intimidate defendants into paying thousands of dollars for viewing a movie that can be bought or rented for less than $10.” Another reverse class action was tossed in U.S. federal court in Illinois in 2011, with the judge expressing concern that the case was little more than a “fishing expedition.” A New York Law School Review note comprehensively canvasses the issue from a U.S. perspective, arguing that the cases cannot be certified under U.S. law and that they raise significant issues of fairness.

One of the biggest concerns involves questions of representation for the defendant class. Before certification, the court will want assurance that the interests of the defendants will be fairly represented. But who will represent those interests? Who will pay for the legal counsel?  Unlike a plaintiff-led class action, where lawyers are often willing to invest in the case, there is no payoff at the end of this case and finding someone to represent the class will be a challenge when the only named representative is John Doe #1. If the representation issue is addressed, there will be additional concerns related to commonality (there may be a common copyright claim, but the defences may differ) and identification of the scope of the class, which appears to be indefinite.

Beyond the certification challenges, one of the primary barriers to reverse class actions is that defendants have the option of opting out of the class. This suggests that even if certified, any and all defendants will have the right to opt-out. In other words, after going through the process of trying to meet the requirements for class proceedings, all the defendants will be permitted to simply walk away.

Opting-out will pose its own sets of challenges as defendants will presumably want to have their anonymity safeguarded if they choose to opt-out. Voltage may be counting on the possibility of self-identification as a deterrence against opting out, but the court could establish a mechanism to allow for full exercise of the right to opt-out without being forced to disclose personal identity. The privacy issue related to the identification of the individuals is a separate matter that has its own process under Canadian law.

Class action experts may be able to shed more light on the issues related to a reverse class action, but at first glance this Voltage lawsuit is a puzzling strategy that should face stiff opposition from courts concerned with procedural fairness and appropriate representation of the interests of all class members.

53 Comments

  1. Sounds like anyone in Canada is capable of being accused, and will be convicted if they fail to identify one another, band together, seek standing and then and only then defend themselves. It deosn’t sound like natural justice… or any indeed any kind of justice.

    • Devil's Advocate says:

      Indeed!
      It doesn’t even sound doable, let alone legal.

      The part I can’t wrap my brain around is the attempt to mass-charge multiple defendants in one suit. I didn’t think you could do that, but even if you can, what about the $5,000 cap on individual suits in Canada? Wouldn’t that take away the viability of doing this?

  2. Jeffrey Street says:

    My understanding is that in the US, appellate court decisions have all but ended the viability of mass copyright infringement actions, largely because of issues related to jurisdiction, venue, and joinder. How does that compare with the situation in Canada, and would those same issues be part of the discussion in a reverse class action suit such as this?

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  4. How am I supposed to know that I should opt-out of the reverse-class action lawsuit until they have identified me, and informed me, that I’m part of the group being sued?

    I’m pretty sure I’m not in that group. I don’t have copies of any of the movies mentioned and I haven’t been a customer of Rogers for over 10 years.

  5. Eeek said:
    “How am I supposed to know that I should opt-out of the reverse-class action lawsuit until they have identified me, and informed me, that I’m part of the group being sued?”

    Hmm, Obviously your ISP will be required to notify you of something.

    Q1. If one opts out does voltage get your name, addy, phone number etc? If so, will it be used for trolling or intimidation? Or is this some sort of court protected info?

    Q2. Will the ISP info email (which most will ignore as spam) inform you that you are part of some weird class action and you would need to opt out? Will most even understand this Email?

    Q3. Will they then go after individuals who opted out in a different manner?

  6. Former class action litigator here.

    I’ve answered a few commenters’ questions below, and I’m happy to take more. Just reply to this comment so I know I should come look at the thread.


    Mandatory lawyer words: None of this is legal advice. This is all just my opinion based on my experience in class actions practice. I’m not your lawyer, and you should get one if you think you’re involved in this case. With that out of the way…

    Re: the economics and the $5,000 cap on statutory damages: There is a $5,000 cap on statutory damages for non-commercial copyright infringement, but that’s per person. If there are 1,000 defendants that’s $5 million potential damages. That makes the case economically viable.

    Re: binding a large group of people: Right now the case is just Voltage against the one Doe. The first stage in the case will be certification, where the court decides whether this is an appropriate case for a class action. If the court certifies the case, it’s suddenly binding on everyone in the class.

    Re: notice: If the case is certified, part of the certification process is giving notice to class members. This step isn’t always done as well as it could be – like those notices in the back of the newspaper. Direct notice is more effective, and will be extra important in this case since it could create a new obligation on someone. I would not be surprised to see a request for ISPs to help give notice to their customers.

    Re: opting out: There is no defined process for opt outs. The court will define an opt out process after certification, although it’s not clear how that will work in a reverse class action. As Prof. Geist pointed out, there is not much reason for someone in the class to stay in the class.

    Right now my biggest concern is that there won’t be someone there representing the defendants. There aren’t many normal class actions in Federal Court, and there are hardly any reverse class actions anywhere. The judge will be very skeptical of the plaintiff in this situation and will ask lots of hard questions to make sure the interests of the defendants are looked after. But it would still be better to have sophisticated class actions counsel picking apart Voltage’s lawyers’ arguments.

    • CobraChamr says:

      Does the outstanding Voltage troll case with TSI have any bearing on this? Isn’t this Voltage looking to backdoor their way to avoid an unprofitable judgment?

      • Voltage is not going after the same infringement this time. If they did it would probably be struck as an abuse of process. Courts don’t like to waste their time hearing the same case twice. This new case is over new films that were released after the first case was launched. So it’s all new – new subject matter, new defendants, new strategy.

        Pro tip: You can get court docket listings on the Federal Court website, which will show you what documents have been filed, any orders from the judge, and what stage the proceeding is in. Sadly they don’t have the full text online yet.

        The docket for the new case is here: http://cas-cdc-www02.cas-satj.gc.ca/IndexingQueries/infp_RE_info_e.php?court_no=T-662-16&select_court=T

        The old case doesn’t seem to have moved at all this year. That’s not necessarily unusual. They could be waiting for court dates or doing prep work or settlement negotiations. The justice system is slow. But watch the docket to see what happens in the old case: http://cas-cdc-www02.cas-satj.gc.ca/IndexingQueries/infp_RE_info_e.php?court_no=T-2058-12&select_court=T

        • “Re: opting out: … As Prof. Geist pointed out, there is not much reason for someone in the class to stay in the class.”

          Sounds to me like Voltage is just trying to get at the personal identification of people that they can not get by going after the ISPs. After all, if every defendant involved drops out, then at best Voltage will get their IDs and at worst it will have been a process of waste for the courts.
          So its a fishing expedition, and should just be thrown out?

          • I don’t think this is just a fishing expedition. If all they wanted was the names and addresses, going for a similar order to what they got in the previous case would be a more efficient way to do it.

            I think this is trying something new. My guess is they want to get as close to a damages award against the class member as they can so when they send a demand letter it is not easy to ignore.

            From a law nerd perspective, the way the court handles the opt out process will be really interesting. There has to be an opt out right, but the process is different in each case. Sometimes it’s really easy, other times it’s really time consuming to fill in forms and collect documents, on a really tight timeline, or hard to understand. The court has to approve the process, but like with everything else in this case it would be better for the people in the class if they had lawyers defending them at the certification stage to make sure the opt out was as good for them as possible.

        • > They could be waiting for court dates or doing prep work or settlement negotiations.

          Nothing really to wait for, all they have to do is pay TSI’s costs and then they get the lists then they write their demand letters.

          I believe Voltage quit that case because the similar one in Australia had the judge call their demands surreal and told them they couldn’t threaten more than a few hundred dollars for out of court settlement.

          I suspect they suspected a Canadian judge would say the same thing.

          This “reverse” scheme seems to be more about short-circuiting the courts so they can make demands for thousands of dollars.

          And the new judge couldn’t take any of that into consideration? They couldn’t demand that Voltage carry through with the last judgment first? I get that it’s all new but not really, it’s them still trying to pull the same stunt.

    • OneEyedPirate says:

      It appears to me that Voltage intends to go after subscribers that span multiple ISP’s, do you think this is the case? I do not see anything that limits the subscribers to one particular ISP.

      If Voltage succeeds, then the accused will have plenty of reason to opt out, however, if opting out means exposing your true identity, then Voltage will send threatening letters to those who opt out AND also expect a payment from those who did not opt out.

      I’m not so sure how well this scheme will be received by the court. There’s still the Teksavvy case, which appears to have been abandoned, I think the judge should consider that Voltage should at least be seen following through since they argued to no end that they were not trolling for profits.

      In any event, let’s hope the courts shut down this US style of over excessive litigation pronto.

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  8. CobraChamr says:

    Trolls keep trying but you can’t blame Voltage, they can’t make money making movies maybe they can by copyright trolling?

    Not so far, they failed miserably in Australia, they gave up with Tek Savvy amd now trying this nonsense.

    Guess their lawyers rather bill hours than give their clients advice against tilting windmills.

    And in the end no Canadian judge is going to award anything more than the minimum for a .99 cent movie.

  9. Annie Buddy says:

    In 2005 Justice Konrad von Finckenstein ruled that downloading for personal use was not an infringement. In 2010 Ministers Clement and Moore introduced our new copyright law which they said would legalize “many of the everyday activities that Canadians are already engaging in online”. And now, in 2016, despite this approach having failed in the MPAA controlled US of A, we’re supposed to let them stick it to us right here in Canada, just like that, eh? Right.

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  12. This is a fantastic process, and I can’t wait to see how the courts treat it.

    I can imagine this being useful for someone that had their rights trampled by multiple levels of government (Police, Crown, Province) and had difficulty acquiring names, due to parties refusing to identify.

  13. A technical point…IP (internet protocol) addresses come in static and dynamic types. Commerical sites use static IP addresses. Home users usually have `dynamic’ IP addresses. The reason they are called `dynamic’ is because they are randomly assigned by a `DHCP’ server. Your home IP address can vary. This then says, an IP address used by subject A on a Tuesday morning, could be different on Tuesday afternoon… again the IP address is `dynamic’.

    And to add more tech confusion. Many people use NAT (network address translation) routers. These routers can be `open’ for use. When they are, your neighbour, or some kid in the neighbourhood can access the same NAT router… thus the assigned IP address has multiple party access, and any criminal intent is difficult to prove coming from a speciific IP address, when such a device is being used.

    • As for the static/dynamic IP addresses, it doesn’t make a difference. Since Jan 1, 2015 ISP are required to log data identifying which client had which IP address at a given time. ISPs will then use that data to perform any notice-notice obligation. Log data can be flushed after so many months unless the rights holder notifies the ISP that they plan on taking legal action against the ISP customer in which case the ISP has to retain the log data proving which customer had the IP address. The data is retained until the legal matter has concluded.

      As far as using the NAT at home, it doesn’t matter. You as the client of your ISP are legally responsible for any illegal activities on your connection. Regardless of if it’s you, your spouse, your child, a guest at your house, or someone else who’s access your connection via wireless. If you have the means to prove that someone like a guest did the activity of downloading copyright materials via your connection (ARP cache, per user authenticated access), than you could shift the blame on that individual.

      I am not laywer. I work for a university and our network is essentially and ISP to our customers.

      • Devil's Advocate says:

        “As far as using the NAT at home, it doesn’t matter. You as the client of your ISP are legally responsible for any illegal activities on your connection.”

        That statement is patently false!

        “I am not laywer.”

        That statement is obviously true!

        • emma kant says:

          I guess Joey doesn’t really believe what you quote him as saying, since he went on to contradict it by saying that one could deflect the responsibility to someone else after all.

          While I am not a lawyer either, what I believe his comments truly do amount to is that, in reality, most people that are dinged for alleged copyright infringement are indeed guilty, and some want to rely on the fact that an ISP is not a person to escape responsibility by claiming it has not been proven that there was not someone else, other than them, who could have actually done the infringement.

          This would probably work for a criminal case, but in a civil guess, contrary to what pc suggests above, I would not be surprised if in most cases the burden of judgement will seen to be on the person accused to show there indeed was some other person. The judge or jury would just have to consider what is more reasonable to believe all things considered.

          Maybe some people really are not guilty, but what about the very many who really are? In a criminal case, I guess, they could rely on the “beyond reasonable doubt” strategy, but in a civil case, they really cannot, unless they want to, in effect, lie to the court, right?

          • Devil's Advocate says:

            “…most people that are dinged for alleged copyright infringement are indeed guilty…”

            That’s the thinking that keeps the copyright trolls in business. And it’s based on conjecture.

            Regardless of how many are actually “guilty”, the stigma of copyright infringement has been elevated to a completely insane narrative. We’re beginning to see “infringement” somehow migrate from a civil infraction to the realm of CRIMINAL charges.

            When you examine the complete lack of real damage piracy actually amounts to, and even factor in the BENEFITS it often results in, you come to understand that the fight has nothing to do with “lost sales” or “stolen income”, and everything to do with CONTROL.

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  16. emma kant says:

    (In reply to Devil’s Advocate, as there is no “reply to” link on his or her message, perhaps so that this software can avoid the long threads it would otherwise render unreadable through its choice to indent each successive reply one more level):

    I guess it doesn’t matter whether its “many” or “most” of those who are correlated with the IPs attained by careful bittorrent monitoring who are actually the ones doing the illegal downloading and distributing. (I say now “careful” because stories indicate that in the past, many of the trolls were alleging they did this monitoring, but it turns out then it was not always so carefully done, but I think their act has been improved on this). Indeed, I wasn’t considering the perhaps more-common-that-I-realize case of young people living with tons of roommates and sharing a connection. What I was thinking of is the people who suggest “you can’t prove I did it!” as an overall strategy against the copyright holders and their agents.

    There are many many people who *did* do it and I don’t know if they should be arguing “You can’t prove I did it” as some people seem to be suggesting. It seems to me that, just as the copyright trolls are unfair by going after specific people to make examples out of them (for which they have to make those peoples live potentially a very great hell), people who violate the law and try to get around it by saying “you can’t prove I did it” could be seen to be unfair to their less fortunate comrades who are unable to in good conscience attempt to utilize such a strategy and thus end up abandoned — “I don’t have to run faster than the bear, I only have to run faster than you!”.

    • OneEyedPirate says:

      One can try arguing that a home based shared Internet line is essentially the exact same thing as the shared Internet lines used by the upstream ISP, and therefore you should enjoy the same level of protection that the ISP has. The fact is that you have absolutely no control over what goes on over a shared line.

      The whole copyright madness is unenforceable without taking extreme measures that threaten to destroy the Internet. It has become so ridiculous it’s getting to the point that no matter what you do, using the Internet will guarantee that you’ll be accused of one thing or another.

      • emma kant says:

        I am not sure what you are saying. Suppose that a person’s name is revealed in a Norwich Order as being the person owning the account which used an IP to illegally download copyrighted material using bittorrent, and that this person *is* guilty and *knows* he is guilty.

        Are you saying this person might well argue in court that he had no control over his line, and thus should not be held liable, even though he knows in fact that he indeed is the one that did the illegal downloading?

        Or if you are not saying this, what do you and others recommend for such people? Settling before the court case, or going to court and pleading guilty, hoping for just a $100 award against them, not a $5000 one (or, even, a lot more if actual rather than statutory damages are argued for?) Or some other strategy?

        With Voltage now having 2000 or so actual names, and with their other activities going forward now that Norwich orders have been found effective, this is likely to become a live issue.

        • OneEyedPirate says:

          @emma kant

          1) Do you have a shared Internet connection, Yes or No?

          2) If “Yes”, then how do you monitor and control what those who have access to the shared connection are doing with it?

          • emma kant says:

            I don’t see how these questions are relevant in the scenario I described, which is where (for whatever reason) the person knows he is the one violating the copyright, and because of conscience, difficulties in lying effectively, or whatever, is not willing to try to deflect the violation onto some fictional character sharing his internet connection.

  17. emma kant says:

    More to Devil’s Advocate, Prof Geist, Matt, regarding Canipre (the bittorrent monitoring firm working for Voltage), and Barry Logan.

    Forgive me, I just started looking at Pro Geist’s blog. There is a very interesting post back quite a while, with comments being closed, that I would like to hear some comments on if possible. “Glass Houses and Throwing Stones”, Jan 6 2015.

    In it, Prof Geist points out that Barry Logan (Canipre Managing Partner) has posted a large number of articles lifted in their entirely from a large number of other sources, without indicating in any way that these articles are copyrighted, or that he has obtained permissions to republish the articles.

    I would further observe that if you go to the articles in question at their original locations, they are clearly marked as copyrighted by the original sources, but Logan has not included that, and also that these articles were republished by Logan within a day or two of their original publication.

    I think these two points pretty much adequately address the poster Matt in the comments thread to that article, who suggests Prof Geist does not know that Logan did not acquire permission to republished these articles. I tend do doubt that since (1) Logan does not include any form of copyright notice at all let alone indicate he has permission to republish, and (2) there is such a large number of different publishers which (3) Logan manages to republish material from *almost immediately*. It is unlikely he so quickly acquired permission in so many cases so quickly.

    Devil’s Advocate also weighed in on this post in reply to Matt, apparently suggesting that the fact Canipre had previously used copyrighted images on their website without attribution and without permission basically indicates Canipre is probably guilty in this other case as well.

    I don’t think it really establishes that, however, since Logan’s argument that it was a third party mistake and oversight is plausible, and he did take the images down promptly.

    But that defense is not available in the case of republishing all these articles, I would think.

    I am curious if anything more has come of this and if not, why not? I note that virtually all of the examples Prof Geist cited are still up, except for the first one, the one that was actually behind a paywall.

    I hope somebody has some interesting and useful comments on this!

    • Devil's Advocate says:

      I’m not really sure where you’re going with all that, Emma.
      The Canipre thing was a different animal than being discussed on this page.

      As for “bittorrent monitoring”, that’s another term that’s used to misrepresent a much more “questionable” activity by the trolls. (One has to participate in a torrent, in order to know what’s actually in it. Many torrents are actually SEEDED by the trolls.)

      And, before assuming it’s a logical thing to do to “combat piracy”, take a little time to think of ALL the implications attached to that.

      • emma kant says:

        Well, I think Canipre somewhere explained clearly how, at least by now, they are not seeding the torrents themselves. In fact, as far as I understand it, those who monitor bittorrent monitors suggest you can find monitors by the kind of requests they make towards seeders; their requests are kind of random and do not cause them to follow a steady path towards completion of a download (but they are requests attempting to get parts of a seeded file). See for example the paper “The Unbearable Lightness of Monitoring”. (Oh, I see also that these guys happily use the phrase “bittorrent monitoring” throughout; I’m not so sure what’s wrong with that phrase).

        I agree that Canipre’s own apparent flagrant violation of copyright law (and not just for personal use, but for furthering its own pecuniary interests as a firm that would like to drum up more business) was not a direct subject of discussion in this thread. That is why I said “forgive me”; comments are closed on the other thread and I assume people here (many of the same people) are interested in this closely related issue. (I believe it is Canipre still assisting with the current Voltage efforts discussed in this thread).

        So what was I getting at? I don’t know, I would like to keep that issue receiving some attention. Would like to see Canipre gone after on this if they think it is legitimate to go after others. To expose the hypocrisy more clearly — and this might even help with cases involving them.

        Regarding “combating privacy”: I don’t believe I assumed anything much about this, or even used that phrase, but it’s a complicated issue to be sure what should be done about copyright infringement, both in terms of how it should be “combatted” and what portion of what is current currently considered infringement should not even be considered infringement (hence should not be “combatted” at all). Etc.

      • emma kant says:

        @Devil’s: Oh, I see maybe what you were saying about the phrase “bittorrent monitoring”. Not that it is a bad phrase, in and of itself, but that it *could* (and *has been*) misused by copyright trolls in attempt to set up a honey pot, yet claim they were *merely* “monitoring”. Of course, they would be misusing the phrase in such a case, there is no doubt about that. But the phrase itself seems okay to me.

        • Devil's Advocate says:

          No “coulds” about it.
          The only way to “monitor” a torrent is to participate in it, and the trolls (commissioned by IP holders) not only do that, but actually seed authentic content as part of their tactics.

          By creating their own torrent, they can better control what trackers are handling them, and attempt to make a list of those connecting to them. Even doing so doesn’t make the process more accurate or conclusive, though.

          And, that doesn’t even touch on what questionable methods they feel entitled to engage in, to deal with many downloaders using TOR or VPNs. All things considered, they’re guilty of things more serious than the infringements they’re supposedly trying to establish.

          At this point, you’ll notice, I haven’t even touched on downloaders who may or may not actually be guilty. That’s how disproportionate the whole situation has become.

          • emma kant says:

            I don’t see why someone monitoring a torrent, and who has the permission of the copyright holder, cannot perfectly legally do that monitoring. Yes, if they originally put up the torrent and were the original seeders, that is not innocent, but it really is not necessary at all. They just have to go to someplace like a kickass torrent site, look for torrents of their clients stuff, and join that torrent swarm and start collecting data on who sends them parts of the file. They have to seed a little at least, of what they have acquired, so as to be allowed to participate in the torrent.

            It would be easier to provide the file as an original seed, of course. And (I at least think) that would be wrong — a form of entrapment. But I don’t think Canipre, for example, is doing that.

            I really don’t understand the way you are coming at this. Rather than looking at a specific point, you seem to just scattershot attack people who are trying to protect what is legally theirs (or the people they employ to do this).

            Yes, in doing so in many cases they do very bad things themselves, but not necessarily in all cases.

            It is similar to what you said about Canipre’s own violations of copyright. When someone suggested perhaps they had permission to republish all of the articles they did, you simply referred to another occasion where they violated copyright (and corrected it very promptly, it is reported, once they were notified), as if that proves they are violating copyright in this case.

  18. OneEyedPirate says:

    @emma kant

    Your reply in the thread tree above is getting squeezed too thin, so I’ll reply down here.

    [quote]
    I don’t see how these questions are relevant in the scenario I described, which is where (for whatever reason) the person knows he is the one violating the copyright, and because of conscience, difficulties in lying effectively, or whatever, is not willing to try to deflect the violation onto some fictional character sharing his internet connection.
    [/quote]

    The point I wanted to make, is that if an account holder has a shared Internet connection (as many do), then the account holder has no control over what happens over the shared connection, just as ISP’s do not have control over what their subscribers do, yet ISP’s enjoy privileged protections as a practical means to allow the ISP to function as a money making operation. There’s a double-standard being applied here between the ISP and account holder, neither can control what happens over their Internet connections, yet one enjoys protections while the other does not. The only difference is that one party is earning a profit, while the other party runs at a loss. We all know what’s going on here and why only the ISP gets protected, the laws are there to protect the money.

    As for your hypothetical scenario, what an account holder wishes to admit to or deny is obviously up to the account holder, no one has control over other peoples state of mind, and when there’s a shared connection, there’s no way to prove what the account holder did or did not do because an IP address does not equal a person, it is assigned only to a machine, and that machine may be used by a multiple of anonymous machines and/or end users.

    Now, if someone so happens to admit to unauthorized downloading, in my estimation, whatever offense was committed is relatively minor and should be treated as such. I think that a $100 penalty is a high amount because most of these films (if we’re still talking about Voltage) can be obtained for a lot less than $100, and there’s no evidence there was any harm done to the copyright holder, eg there was no material costs lost with the making of the copy, the harm to the copyright holder is only an assumed “lost sale”.

    But is a file download equal to a “lost sale”? I’ve seen it for myself many times, people who cannot find the digital content they are looking for will simply move on to something else that is more readily available, they do not go out of their way and try even harder to find the content they could not find before giving up.

    If they could find content easily, and it was reasonably affordable, many people would be OK with paying a fee for the distribution service, but sadly “authorized” services are usually not readily available or too costly or both, while the “unauthorized” methods are more available and free, but may come with some degraded quality, although often it’s much better than the authorized version (eg no crippling DRM). A great case to observe at this moment, is the practice of geoblocking by Netflix, all it is doing, is turning away formerly happy paying customers towards alternative unpaid distribution methods.

    I personally think that copyright is a legal fiction that is clearly on its way towards extinction. There is no practical way of enforcing copyright over the Internet to the degree being demanded by the copyright industry. The only way to enforce it, is to effectively turn off the Internet, and indeed what we see happening with copyright enforcement, is an ever growing unwieldy bureaucratic contraption being constructed that attempts to turn off the Internet while keeping it turned on, it is the definition of insanity.

    So lets see what happens in another 20 years from now. Will we see an older but not wiser copyright industry still screaming that it needs even more draconian protections? I doubt anyone will be listening by then. As it stands today, only our paid for politicians are listening, almost no one else gives a hoot. In any event, brighter minds ought to have figured out by then that it is too costly and impractical to enforce copyright within an environment that requires everything within it to be readily copyable and transferable on demand.

  19. emma kant says:

    @OneEyedPirate: “Your reply in the thread tree above is getting squeezed too thin, so I’ll reply down here.”

    Likewise. There are a lot of very interesting issues touched upon in your reply, and I would like to discuss them, but I guess this is not really the place. Maybe we can find/make a place to discuss them? Including especially the possibilities for “20 years from now”

    But my original interest all along in this subthread was not about this long term; rather it was about what actual practical recommendations should be made for the large number of people currently under attack for their activities of copyright infringement, assuming that we agree that, even if what they did was wrong (aside from being illegal, which goes without question), they should not be subject to what Devil’s Advocate (I believe correctly) referred to as “the [completely insane] [elevation] of the stigma of copyright infringement” . And also assuming that they are not the sort who are both willing and able to try to lie about their activity, even if that could get them off the hook if done well.

    You say there is no way to “prove” such a person has infringed on the copyright, but I think it would not be necessary to “prove” it. One could probably do a pretty good job to satisfy many judges just by asking people point blank.

    So it seems like you are recommending that if such a person has to deal with lawyers for the copyright holders, that he may as well lie if he is willing and able to do so, but since by assumption he is not, that he confess and hope to get the minimal amount awared against him (this would not satisfy the copyright holders, but if it included costs it could also be quite a lot more than $100 even in the minimal case, and then no one would benefit from that except the lawyers). That you feel a higher amount is not warranted doesn’t really constitute a recommendation as to what such a person should do.

    I’ll avoid getting into a discussion of what amount of award would be appropriate if any. That would get us into issues of, for example, whether using a person as an example, in order to produce a deterrent effect, is a morally legitimate practice that society could institutionalize in this kind of case. If so, then the fact that this *particular* instance of copyright violation causes very little specific identifiable loss may very well be moot.

    I agree that to some degree “there’s a double-standard being applied here between the ISP and account holder” but it’s on a continuum: I don’t think it is completely accurate to compare a person with a relatively low bandwidth connection, and a small number of people sharing it, most of whom he is likely to know quite well, with a large company whose job it is to supply service to huge numbers of people it knows nothing about. It is far more plausible to hold the former responsible for what users of his connection do than it is to do the same for the latter. Perhaps it is very roughly akin to holding the gun manufacturer liable when someone misuses a gun he has sold, compared to holding a person responsible when he buys the gun and leaves it lying around his home loaded and unsecured.

    When you talk about Netflix’s practice of geoblocking, it sounds like you might be blaming Netflix here for doing someting unreasonable? But I assume that Netflix as a large visible corporation does not want to violate copyright, and further that to offer to Canadians what it only has permission to offer to Americans would be such a violation, so that its geoblocking activities are something that it either has already been required to do, or feels that it has to do in order to protect itself. That seems reasonable on its part. Perhaps you are not blaming them, but suggesting they should be able to put together a deal that is better for both sides: the content providers and the (Canadian) content consumers alike. I would think that should be possible and hopefully they will figure something out, although the American selection also seems pretty poor and that alone would still turn people toward “alternative unpaid distribution methods”.

    That’s a few points: lots of what you said I have not tried to address, not because I don’t think it is worth addressing, but because basically you have provided a mini-manifesto about the whole ball of copyright wax! Which of course cannot be briefly addressed. Rather than what I was getting at originally: what should be done in this specific case (or cases of this type), and even with these specific folks (Voltage and Canipre, specifically). If you think my reply is particularly bad because of some of those points of yours it does not address at all, please let me know.

    (This is so long I wish it could be previewed… please try to ignore some of the most obvious bad spelling, grammar, and sentence construction that no doubt exists).

  20. Any parent can tell you that, any time that their child has friends over for a visit, they will eventually all take out their devices and log onto their wi-fi. This happens to virtually every child in Canada, and under such circumstances makes assigning responsibility for ANY online activity one of the craziest ideas ever held. We used to say “sticks and stones will break my bones but words will never hurt me.” When our sanity eventually emerges we will realize that there “information” can do no harm, and that “information crimes” make no sense at all.

    • emma kant says:

      Well, that seems to be somewhat of an exaggeration, but if “any” were changed to “many” and “virtually all” also to “many”, it would probably be true as a description of what happens.

      But I don’t see how the “sticks and stones” line follows. People can do great harm to others, or threaten to do great harm to others, via some of their online activity, and it doesn’t seem crazy to attempt to assign responsibility for that, although of course it could be very difficult to do so without causing harm in doing so, and those harms haved to be weighed against one another.

      Keeping just to the case of copyright violation, however, it does seem that having kids you cannot control, especially if they have friends whose parents can’t control them, is a pretty good cover for doing copyright infringement oneself. Presumably those going after copyright infringers will realize this, and when they get a large list of names (such as Voltage now apparently has done) focus most of their effort on the people who do not have such excuses available to them.

      Insofar as they are doing this as trolls, primarily to realize another income stream from their copyrights, this might not impede their efforts all that much. But since those uncontrolled kids (and uncontrolled roommates who are not on the ISP contract) will not be affected by this, the copyright holders will have more trouble using these activities to create a general disincentive by making examples of the childless and roommate-less.

    • emma kant says:

      Oh, sorry, another point, I guess this gets to the root for many:

      “When our sanity eventually emerges we will realize that there “information” can do no harm, and that “information crimes” make no sense at all.”

      So are you saying that even the massive systematic violation of the current copyright rights of copyright holders can do no harm, and that the only reason we think this is because of some kind of collective insanity?

      And so that, they way it should be is, people should be able to openly and freely copy and redistribute in any manner they see fit, any so-called “intellectual property”?

      It looks like that is what you are saying, but surely that cannot be right?

      Personally, when it comes to the financial aspect of it (as opposed to just not getting appropriate acclaim for what one creates), I tend to believe (currently) that the justification given for copyright in the constitution of the US is what it comes down to: it is justified not in the least to protect the financial interests of the copyright holders, but only to the extent that these protections have the result of producing more good culture for the public in general to enjoy. There is no other reason for a person to think he should be able to make money by producing intellectual property. But such is still enough to justify something like copyright (and thus something like the notion of “information crimes” ), it seems to me.

      • Thank you, Emma, for your thoughtful reply. It is a genuine pleasure to investigate with you where our reasoning should lead.

        I would say that the attempt to lay blame, to sue or press charges only makes sense where there is proof of who said or did what. Right now there is a lot of popular misunderstanding about this. But in the future, anyone who might have any reason to hide anything will know very well who is surveilling them, and how, and how to avoid them and remain anonymous.

        Of course, it may come to pass that anonymity is outlawed. This might even result in it’s being eliminated. But right now wi-fi is only becoming more available. Devices which might only ever be used anonymously are getting dirt cheap. And encryption capabilities are but in their infancy.
        Of course, there are still traceable incidents now, and a whole industry of laws, and many who would hope to defeat encryption.

        But just consider how impossible it must be to decrypt data once it has been encrypted TWICE, and you should be able to see how it cannot be defeated, because you would never know when you have sucessfully decrypted the first instance, in order to begin the second. And you could never force someone to decrypt their data because of the possibility of plausible deniability in encryption. This, I have no room to explain here, I must direct you to look it up elsewhere.

        So the example I give of the kids at my house who would all say “It wasn’t me!” gets extended to the hundreds of Starbucks customers, or library patrons, and to the thousands of VPN customers, or Onion Router operators and to the millions of people who feel that the Internet should remain anonymous.

        Is this a good thing? Well, it has been the nature of the Internet for decades and we are more creative and innovative than ever. Artists do not need to buy everything in order to learn from it how to be better artists. I used to buy a few 45′s a week just to learn a new solo or chord progression, now I can learn hundreds of new musical ideas in any session, that I could never afford to buy. Multiply that by the number of artists who make art because they want their message to be heard, and who, like me would, of course, love to get paid for it, but c’mon that’s stupid. If anybody ever sent me a cheque I’d have to send it back because, buddy you must need it more than me!

        Does it make sense to spend hundreds of millions of dollars just to tell a story anymore? Does it make sense to spend a million to make an album of doo-doo-doo songs from the latest cutie? I don’t know that it ever did, frankly.

        Of course there are career writers and sound technicians and movie grips and gaffers who are directly effected, but I doubt that we’d have a better culture if only the RIAA and the MPAA were to have a monopoly on everything we listened to and watched. I predict that the sun will set on the idea of copyright, no matter what the lobbyists and lawers might ever do. And I don’t think most of us will ever miss it, or even notice.

  21. Devil's Advocate says:

    “…it is justified not in the least to protect the financial interests of the copyright holders, but only to the extent that these protections have the result of producing more good culture for the public in general to enjoy.”

    Now you’re arriving at what started copyright. You could’ve saved yourself a lot of trouble just by looking up the origin of copyright and its original purpose.

    Copyright is an artificial “right” (note the quotes), that overrides our inalienable natural right (note the absence of quotes) to copy and build on the works of others. But this “right” was not supposed to be one-sided – there were conditions, limitations, expiration, and a movement to the Public Domain.

    Over time, those that stood to milk more money from IP lobbied for longer copyright terms, more one-sided conditions, and more severe penalties for infringement.

    What we have now, as a result, is a completely inverted scenario compared to the originally intended one. Nothing makes it to the Public Domain; corporations build an entire business model on IP holdings and enforcement; everybody is getting sued for what should be fair use; culture is not free to build on its own; and the Internet is being threatened with complete breakage by those who either can’t comprehend why their business model is obsolete, or just refuse to adapt.

    What used to be a simple, Civil Infraction, is now being spun into a Crime.

    Copyright was supposed to allow creators to have a brief monopoly on the profits of their work, thus giving them incentive to continue to contribute to culture. Now, it is merely a tool for the rich to get richer, while shutting out much of their potential competition.

    “So are you saying that even the massive systematic violation of the current copyright rights of copyright holders can do no harm, and that the only reason we think this is because of some kind of collective insanity?”

    This question, at least in the way it is posed, is too broad for a universal answer. I’m going to assume you’re speaking of downloaded content, as that is what seems to have sparked the whole conversation.

    There is no evidence to support that downloaded content hurts anyone. All we have is propaganda, and questionable “research” paid for by those behind the propaganda.

    A downloaded file does NOT equal a “lost sale”.

    “And so that, they way it should be is, people should be able to openly and freely copy and redistribute in any manner they see fit, any so-called “intellectual property”?”

    This question is far too broad, both in itself, and in its various components – “openly”, “freely”, “copy”, “redistribute” “in any manner”, “any… intellectual property”. I don’t think you realize how many ideas you have going on there at once.

    Missing from it, strangely – are any of the activities in question being done for profit, and/or is anyone being denied revenue they were rightfully entitled to as a result of any of these activities? (I’m not asking, just illustrating a point.)

    • emma kant says:

      Wow. Incredible.

    • OneEyedPirate says:

      @Devil’s Advocate

      Very well said, however I believe the original intention of copyright was to prevent unauthorized print from being published, i.e., it was intended as means of enforcing censorship and control, much as it is being used today, which is why most of us free thinkers hate it and would prefer to see it abolished, or at the very least rolled back considerably into a more sane level that can be respected to some degree.

      https://en.wikipedia.org/wiki/History_of_copyright_law

      The same goes with the abuse of patent laws, it’s been escalated to absurd levels, such as granting protection for business rules, life processes which by definition are impossible to own and control, and also with software algorithms which has had a crippling effect on innovation.

      • Devil's Advocate says:

        “…I believe the original intention of copyright was to prevent unauthorized print from being published, i.e., it was intended as means of enforcing censorship and control…”

        Certainly a viable theory. It’s just difficult to ascertain what “intentions” were behind any such movements. While control may very well have been the real intention, I like to think the people behind it all didn’t have that kind of foresight or vision.

        It’s hard for me to imagine there being such a thing as “authorized” or “unauthorized” print at the time. Back then, printing was a new and expensive thing, and not many had the resources to engage in it. People generally got their news, etc. from isolated, local publications.

        It was the expense, and the public service provided by printing that had to play a part in the creation of the “temporary monopoly” that became copyright. The idea, as outlined in early papers, was to provide the writers and publishers with a revenue stream that would keep the presses running and the creative ink flowing.

        The “temporary” quality of such a monopoly was the part that was supposed to keep creators creating, as they couldn’t expect to sit back and continually profit from the same content.

        And, it’s that “temporary” part that has successfully been eliminated by the constant lobbying by copyright maximalists for extended copyrights terms. The obscenely long terms that have been granted have now made it possible to not only rake in money on one creation virtually forever, but to build a complete business model based on launching copyright lawsuits (or simply threatening the same).

        • OneEyedPirate says:

          We can debate what he original intentions of copyright were, but no matter the origins, here we are today and it’s not looking good.

          One of the more ridiculous things that has dramatically changed the landscape, is the allowance in law that a “corporation” is the same thing as a person, but that is just one ridiculous issue of many.

          The other really bad change, is when the laws surrounding copyright was morphed from only commercial use into the realm of non-commercial use as well.

          Do you remember when “Intellectual property” was coined and became a “thing”? I do, and it was pointed out at the time that we were descending down a very slippery slope.

          The relentless lobbying that attempts to make laws that protect everything imaginable as “property” has created a situation that is so absurd, that it is extremely difficult to respect, and definitely something worth opposing.

          • Devil's Advocate says:

            You’ll get no argument from me on any of that.

            The only real question in my mind is how absurd the whole thing has to get before there’s any meaningful public push-back. Until then, it’s like a bad movie.

  22. ConfusedLayPerson says:

    I would really appreciate it if someone would clarify which actual activities are of concern. The blog post speaks to “file sharing”, while a lot of the above discussion is about downloading a protected work. In the legal actions discussed and envisioned, is it the damage related to the download of the file and the perceived loss of revenue by the IP owner\licensee, or is the the the sharing\distribution of the file and those perceived losses?

    If the former, would not the plaintiff have to convince the court that, on a balance of probabilities, had a person not had access to download the content without charge, they would have had the ability, both in terms of access and monetary wherewithal, to otherwise acquire the content? Would they then not also need to convince the court that such an acquisition would result in a monetary benefit to the plaintiff? There are quite a few reasonable, and i daresay likely, scenarios that could result in the acquisition of the content without benefit to the IP owner\licensee. These would include purchasing of used copies from private individuals, purchasing used copies from businesses which had previously rented the content out, or even just borrowing the content from another private individual. What if the content is no longer available for purchase as it is no longer being distributed? Can there be said to be any damages at all?

    If the issue is not the original acquisition of the content, but the subsequent distribution, how much of a copyrighted work must be distributed for damage to be seen to have occurred? If exactly one copy of the work is uploaded, would the perceived damage be the revenue lost on that one copy? If only one percent of the work is uploaded, does it follow that the damages would be one hundredth of the revenue for a full copy? Or would it be more reasonable to believe that in allowing a few other people to copy three pages from a paperback, the damage caused to the plaintiff by any individual defendant is negligible?

    So, if the issue is the acquisition, without compensation, then should the award to plaintiff not be limited to the actual damage incurred, which could easily be shown to be quite small, and not worth pursuing? If the issue is distribution, should not the award correlate to the number of full copies distributed, and the monetary benefit the IP owner\licensee would have received for only those copies?

    And which person or entity could successfully argue damage? With multiple avenues of distribution, would the assumption be that work would be acquired by the defendant via the least expensive distribution method? For example, would damages be based on the revenue that would be expected if the defendant watched the content on NetFlix as opposed to purchased it from a retail store? It would not seem likely to assume the defendant would purchase the content from a retail store if it was available to stream via NetFlix.

    Obviously I am not a lawyer, but short of hoping for punitive damages, how can a IP owner\licensee think it is viable to go after individual defendants? The reverse class action would seem to be the only option, yet the ability of any or all defendants to opt-out would appear to make that route unprofitable as well.

    What am I missing or not understanding that leads to a company like Voltage Pictures pursuing this legal action?

  23. ConfusedLayPerson says:

    Are my questions so far off that they are not even worthy of a basic answer?

    • Q: In the legal actions discussed and envisioned, is it the damage related to the download of the file and the perceived loss of revenue by the IP owner\licensee, or is the the the sharing\distribution of the file and those perceived losses?
      A: The distribution.

      Q: If the former, would not the plaintiff have to convince the court that, on a balance of probabilities, had a person not had access to download the content without charge, they would have had the ability, both in terms of access and monetary wherewithal, to otherwise acquire the content?
      A: No.

      Q: Would they then not also need to convince the court that such an acquisition would result in a monetary benefit to the plaintiff?
      A: No.

      Q: What if the content is no longer available for purchase as it is no longer being distributed?
      A: Still infringement.

      Q: Can there be said to be any damages at all?
      A: Statutory damages allow damages even if there is no demonstrable money damages.

      Q: If the issue is not the original acquisition of the content, but the subsequent distribution, how much of a copyrighted work must be distributed for damage to be seen to have occurred?
      A: Unclear, but definitely not the entire work.

      Q: If exactly one copy of the work is uploaded, would the perceived damage be the revenue lost on that one copy?
      A: Maybe, or maybe statutory damages, which are defined in the statute.

      Q: If only one percent of the work is uploaded, does it follow that the damages would be one hundredth of the revenue for a full copy?
      A: Probably not – you’d probably go for statutory damages.

      Q: Or would it be more reasonable to believe that in allowing a few other people to copy three pages from a paperback, the damage caused to the plaintiff by any individual defendant is negligible?
      A: Reasonable, but statutory damages are available if the use isn’t covered by fair dealing.

      Q: So, if the issue is the acquisition, without compensation, then should the award to plaintiff not be limited to the actual damage incurred, which could easily be shown to be quite small, and not worth pursuing?
      A: Statutory damages, again. And in this case they hope to aggregate across a class of defendants, so damages = $5000 statutory damages * number of people in the class.

      Q: If the issue is distribution, should not the award correlate to the number of full copies distributed, and the monetary benefit the IP owner\licensee would have received for only those copies?
      A: No, see above.

      Q: And which person or entity could successfully argue damage?
      A: The party whose rights were infringed.

      Q: With multiple avenues of distribution, would the assumption be that work would be acquired by the defendant via the least expensive distribution method?
      A: This is irrelevant.

      Q: For example, would damages be based on the revenue that would be expected if the defendant watched the content on NetFlix as opposed to purchased it from a retail store? It would not seem likely to assume the defendant would purchase the content from a retail store if it was available to stream via NetFlix.
      A: Irrelevant.

      Q: Obviously I am not a lawyer, but short of hoping for punitive damages, how can a IP owner\licensee think it is viable to go after individual defendants?
      A: They try demand letters first, because those are cheap. Litigation isn’t worthwhile against one defendant, so they’re trying to do the class action.

      Q: The reverse class action would seem to be the only option, yet the ability of any or all defendants to opt-out would appear to make that route unprofitable as well.
      A: This is probably true. We will see.

      Q: What am I missing or not understanding that leads to a company like Voltage Pictures pursuing this legal action?
      A: Statutory damages.

      Q: Are my questions so far off that they are not even worthy of a basic answer?
      A: No, there were just way too many of them. But a bit of basic reading on Canadian copyright law could have saved me a lot of typing and you feeling neglected.

  24. ConfusedLayPerson says:

    Greg,

    Thank you for answering my questions. I have been doing quite a bit of reading in an attempt to understand, and am aware of statutory damages, but the awards amounts set are from $100 to $5000, as the court considers just. As the Voltage action filed only deals with a few copyrighted pieces of IP, it would seem very unlikely that a just amount would have exceeded $100. That is insignificant compared to the costs of pursuing each individual. I guess my erroneous understanding was that the “just” amount of damages would be somehow related to the actual damage. It would seem unjust to expect an award of $5000 for copying a movie that can be rented for $4, or watched on Netflix for $10 per month. I thought it would have been related, given that section 38.1(5)(d) of the Act seems to clearly state that for non-commercial infringement, the award needs to be proportionate to the infringements, and it must consider the impact of the infringement on the plaintiff. This is largely the root of where my questions come from. To expect more than the minimum, I assumed the the plaintiff would need to convince that court that the impact of the infringement was greater than the minimum. To justify that impact, they would have to show the court how the defendant negatively affected the revenue the would have otherwise received had not the infringement occurred. But, having taken a commercial law course as part of my degree, I do understand that most of the law is based on interpretation and precedence, and not strictly what is written in the Act. Though when the act seems to quite clear about what needs to be considering when setting the amount of the award, I find it hard to understand how the assumptions is that the award would be closer to the maximum rather than the minimum.

    Thanks again for taking the time to answer my original post.

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