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Distributel Fights Back Against Motion to Disclose Subscriber Information in File Sharing Case

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Friday February 08, 2013
Distributel, an independent ISP with services in Quebec, Ontario, Alberta, and B.C., has fought back in a file sharing lawsuit launched by NGN Prima Productions, opposing a motion to disclose the names of subscribers alleged to have engaged in file sharing. It appears that NGN is using Canipre to identify alleged file sharers, the same company that has supplied information to Voltage Pictures in its case involving thousands of subscribers at TekSavvy. Distributel did not oppose a similar request in November 2012, but says in court documents filed today that several factors led to a change in position when NGN filed another request for more names.

First, Distributel was concerned with how NGN treated its subscribers, demanding a $1500 settlement in a notice claiming that subscribers could face up to $20,000 in damages. Distributel noted the lack of evidence for the claim made by NGN, relying on an expert analysis of BitTorrent to highlight the shortcomings. Moreover, Distributel says NGN is engaged in copyright trolling, citing the misrepresentation in the potential liability (the law now features a cap of $5,000 for non-commercial statutory damages) and the settlement demands that far exceed actual damages.

Second, Distributel argues that NGN failed to meet the requirements for disclosure established in the BMG Canada v. Doe case by failing to demonstrate a bona fide claim. In support of its argument, Distributel points to "numerous errors, inconsistencies, and missing links" in the evidence. Geographic information included in the evidence was often erroneous and there was little evidence about how the information on Distributel subscribers was obtained.  Further, Distributel argues that significant evidence was not provided: no information on how much of the work was copied, no evidence that a substantial portion of a film was infringed, no evidence of which P2P networks were used, and no information on the subscribers' P2P pseudonyms.

Third, Distributel expresses concern with the targeting of smaller, independent ISPs. This particular case involves two other small ISPs (Access Communications, ACN) and the company argues that pursuing independent ISPs is unfair as it may affect consumer choice for Internet services.

Fourth, Distributel raises privacy concerns, including the lengthy delay from data collection until the time when this motion was raised. Moreover, NGN did not provide evidence that there are no other ways to obtain this information.

Fifth, Distributel cites the Voltage - TekSavvy case for the need for reasonable compensation for the expenses incurred by the ISP.  Distributel says that NGN has not provided for reasonable compensation in the draft order it presented to the court.

Distributel's decision to oppose the motion points to mounting ISP frustration with file sharing lawsuits that come after the government send clear signals that such actions were unwelcome.  While Bell, Cogeco, and Videotron did not oppose or challenge a case involving Voltage Pictures in 2011, more recently TekSavvy has fought for the right to notify its customers and to allow CIPPIC to intervene in a case involving thousands of subscriber names.  Distributel has taken the next step of reversing a prior position by opposing a motion for disclosure of subscriber names, sending a strong message that it will carefully examine the evidence and motives of rights holders before standing aside in the quest for subscriber information and inevitable settlement demands that follow.
Comments (34)add comment

judyspam said:

Big ISPs
"Distributel expresses concern with the targeting of smaller, independent ISPs."

Is there any evidence that the trolls are just focusing on smaller ISPs. How do we know that the bigger ones are not just quietly handing over information without anyone (but the unfortunate subscribers) being the wiser?
February 09, 2013

Devil's Advocate said:

Re: Big ISPs
"Is there any evidence that the trolls are just focusing on smaller ISPs."

It does appear the large providers seem to be "open" to requests from groups such as law enforcement or Big Music. But I think that would only be because such groups would be more likely to agree to "compensate" these ISPs at the rate they might ask.

As for copyright trolls, they are generally small "law firms" themselves, who need to identify massive amounts of filesharers, in order to send enough legal threats that the settlements pay off. The troll business model is built on that, and actually needs to avoid having to go to court.

Should the larger providers cooperate, the fees required would be counter-productive to such a business model. But a provider also has to consider the possible consequences to its customer base for such cooperation.

I don't believe any provider really has any desire to screw with the ongoing revenue it gets from its users, in order to satisfy these "one-off" requests, at least not without a bona fide court order.

This is where the "small ISP vs. large ISP" scenario comes into play. Large providers can afford to have the huge legal resources that smaller providers can't. The large provider has no real incentive to cooperate with a troll, but a smaller provider might appear to trolls as being more vulnerable to intimidation or legal threats.

Fortunately, our smaller providers are showing some balls on this issue, and are not willing to just roll over for these scammers. I applaud the principle being demonstrated by those such as Teksavvy and Distributel.
February 09, 2013

mb said:

extortion?
Considering the law now features a cap of $5,000 for non-commercial statutory damages, would a threat of $20K damages not be considered extortion?
February 09, 2013

Stephane said:

Re: Big ISPs
The large providers (Bell, Cogeco, Videotron) have no incentive to fight big media, they either are owned by a media company, or have a lot of various media outlets that depend on being able to buy hollywood content.

February 09, 2013

Grump said:

Kudos Distributel!
It's obvious that there's going be a lot more of these dynamite-fishing expeditions in the next few years though.
February 10, 2013

mary said:

...
I think I'll switch my ISP provider from Teksavvy to Distributel in the summer. At least Distributel is fighting for the rights of their subscribers.

Teksavvy not at all. They made some deal with the trolls not to oppose their efforts to disclose subscriber information in return for a few weeks.

If Teksavvy doesn't fight back soon - they will lose a lot of customers.
February 10, 2013

Devil's Advocate said:

@Mary:
I think you should have another look at how Teksavvy is actually handling the situation. They didn't make any "deals" with the troll.

They've got their customers completely in the loop, while working the court behind the scenes, with CIPPIC right there along with them, at the same time keeping their customers' identities protected. The court, meanwhile, is not very receptive to the idea of granting Voltage the court order to release the identities of Teksavvy users.

The whole story might end there, but if it doesn't, and Voltage actually gets the order granted, at least Teksavvy has bought its customers some time to wrap their heads around what Voltage (and others) are doing, and prepare defenses. Even this scenario is not as unreasonable as some are thinking.

The idea of going to court may not be very pallitable for Voltage. Even if they "win", they can only hope to be awarded a maximum of $5,000 per client, which pales in comparison to what it will cost Voltage for this exercise.

The goal for the troll operating in Voltage's name is still to get "settlements" from the threat letters, which they can't send out without the identities to send them to - identities that are going to require that court order to obtain.

As said, customers will have some time to process this farce - unlike a lot of other cases like this in the past. Voltage's troll knows that means there could be an unlimited number of lawyers to have to fight against.

Bear in mind, Teksavvy has no responsibility to do any of this, as they are not named in the suit. Teksavvy, as discussed already, is a small company that obviously values its customers, but has small resources, and cannot afford to just "stick its neck out" the way it would probably like. Yet, what they are doing may not only be an equitable comprimise, but may even turn out to be better for everyone (including their customers) in the end.

This case could set the stage for trolling in Canada. If it demonstrates how unrewarding the practice can be for trolls, we may all enjoy our internet service a little better.

I think switching providers here would be a hasty move. If you recall, Distributel didn't contest the request for its customers identities at first. They did, however, reverse that thinking, once they had absorbed what was going on.

I'm not a Teksavvy customer, but I've been watching, and I think their intentions are really well-placed. If you're with them, I would say stay with them. If your name is included in this matter, you won't get away from it now by switching anyway.
February 10, 2013

Devil's Advocate said:

@Mary:
There's lots our there about this, if you look...

http://www.davidellis.ca/teksavvy-customers-win-big-in-federal-court-today/
February 10, 2013

Eh said:

@Mary
Contrary to what D.A. stated, yes, Mary, TSI *did* make a deal with the trolls to not oppose the motion in exchange for them to have time to inform their customers. They even stated this. So I don't know what boat DA just came off of.

There are a couple of ways to look it at. And I don't at all agree with David Ellis' rants. I'm more in tune with the way copyright lawyer, Howard Knopf, called it over at http://www.excesscopyright.blogspot.ca/

A more balanced blog to read, instead of Ellis', would be by Dwayne Winseck:
https://dwmw.wordpress.com/2013/01/15/voltages-teksavvy-subscriber-shakedown-part-ii-big-win-for-teksavvy-or-room-for-more/and-democratic-internet/

It's still early in the game but I think a lot of people are leaning on the Knopf way, which could be the way Distributel is going. We will see.

Two ways to skin a cat. We will see both play out it seems. Unless the extortion trolls run away, drop the case, and then decide to only go after ISP's that are too small to put up any fight.
February 10, 2013

Daryl M said:

It's nice to see an ISP with a spine, unlike Teksavvy.
The questions asked by Distributel are all valid and reasonable. Considering the number and type of errors in the supposed "evidence", how can any of it be considered to be valid beyond reasonable doubt? If the evidence is not valid, then it should be thrown out. I also like that they are raising the issue of the degree of infringement and the amount of actual damage. If Distributel offered services where I live, I would sign up today.
February 10, 2013

Eh said:

@Mary
I made a typo for the better balanced Dwayne Winseck blog. It should be this:

https://dwmw.wordpress.com/2013/01/15/voltages-teksavvy-subscriber-shakedown-part-ii-big-win-for-teksavvy-or-room-for-more/

oopsie.
February 10, 2013

Devil's Advocate said:

@Eh:
What Teksavvy did doesn't constitute a "deal with the troll", regardless of how you're spinning it.

It was the court that agreed to stay the procedings and let potential "defendants" be informed and prepare. Another justification given for the stay was that CIPPIC was being allowed to participate, and needed time as well to prepare.

Teksavvy is still able to hold the identities private, and can still challenge the motion later. Meanwhile, CIPPIC will be challenging the motion anyway.

Personally, I don't see why everyone's so adamant about Teksavvy jumping into this thing and challenging the motion right away, if there is the option to do what's being done right now, particularly when CIPPIC is also poised to challenge it. Teksavvy itself was not being sued, and has already stated it doesn't have the financial resources to launch a full-scale legal action.

What I find interesting is that, on the one hand, we say we don't want carriers to be held responsible for what their users do with their service, but at the same time, in this case, people seem to expect the carrier to be responsible for what some outside party is attempting to do to their users.

Such thinking will only doom us all to having nothing but large conglomerates as service providers, as all the small ones will be run into the dirt by these legal cases.

I don't know about any "boat", but I'd like to know what planet you're from. You've got no business taking a potshot at someone for calling it as they see it. State your case, if you're making one, and keep it "balanced" as you say you want to do.

I supplied Mary with one link, just to illustrate she can shop around for more information, if she's interested in doing any homework on the subject. That one link was merely an example, and not necessarily one I believe to the ultimate example. However, I wouldn't be so quick to throw in Knopf. Not everyone sees things his way either.

As you said, Dwayne Winseck would appear more balanced, and interestingly enough seems to agree with what I've already said. He also goes on to show what Teksavvy has been doing, and what it's costing them, and gives much praise to this provider. So, I don't know WTF you're actually trying to say.
February 10, 2013

Eh said:

yaawn
DA, Are you dense? Teksavvy *Themselves* stated they made this deal with the extortion trolls.

You wrote a whole bunch of nothing for nothing.

I suggest you read up before spewing things you know nothing of.
February 10, 2013

Eh said:

...
This NGN et al. Versus Distributel case in now going to be on indefinate hold.

Per Distributel:

"NGN and Riding's counsel notified our counsel that they wish an indeterminate adjournment while they wait to see what happens in the CIPPIC Intervenor motion in the Voltage TS motion. We are not in a position to oppose an adjournment as it is their motion."

So this one is on hold now and leaves only CIPPIC Vs. Voltage, *if* cippic is allowed to intervene.
February 10, 2013

Howard Knopf said:

...
Michael:

My thoughts on "Distributel Shows & Tells How an Indie ISP can Defend its Customers' Privacy Rights Against Alleged “Copyright Trolling”: Teksavvy Take Note"

or

#Distributel upstages #Teksavvy by Actively Actually Opposing "copyright trolling" disclosure motion http://bit.ly/VOyzu4

http://excesscopyright.blogspot.ca/2013/02/distributel-shows-tells-how-indie-isp.html

Regards

Howard
February 10, 2013

Crockett said:

...
Lots of comments here about who is doing more for consumers being trolled, but at least in both cases there is no one just rolling over. It is interesting that Distributel has decided to sit it out until the TekSavvy sorts out their case.

There are two battles going on here, one legal and the other perception. The legal is important, as a ruling in the public's favor would go a long way to stopping this extortion. The public perception is also a big factor if we make the companies who participate in these rackets reviled enough.

Lets concentrate on keeping this issue as much before the public as possible rather than infighting.
February 11, 2013

Mr Magoo said:

Crockett
Whee do you get that they are sitting it out?

NGN is the one who called an indefinate halt to the court proceedings. Not Distributel.
February 11, 2013

Kevin said:

...
It's hard not be happy that at least one ISP is being pro-active with Canadians. Good on Distributel for being truly customer-focused. Hopefully this reaches more traction because the incumbent ISPs have no incentive to think this way.
February 11, 2013

Big Muff said:

The Lawyer's Caddy
Why don't y'all just make it real easy and stop stealing the property of others? Conniving ways to get around the law is just a kiddie's game. Like "who stole the cookie from the cookie jar"
February 11, 2013

Kevin said:

...
@The Lawyer
Because these lawsuits and motions don't offer legitimate proof that people are stealing. If they're wrong, they're attacking Canadians who don't have the legal background or finances to properly defend themselves. That's a legitimate problem.
February 11, 2013

Scott said:

BIG DUFF
think "y'all"should educate yourself on an issue before posting.
February 11, 2013

Golfasaurus said:

...
I understand that Teksavvy is not a party (is that the correct term?) in the Voltage case.
If Teksavvy decides to do no more than absolutely necessary could CIPPIC (or another party)
subpoena Teksavvy employees to get the sort of technical information that would otherwise be
lacking?
February 11, 2013

who knows said:

...
@Golfasaurus
I think this is the way Teksavvy and CIPPIC are playing. But it's kind of dangerous.

1) CIPPIC may not be granted to intervene
2) Court may limit what CIPPIC can/can't do.

I'm sure there may be more issues.

I am unsure what the advantages would be by the Teksavvy way versus the Distributel way.
February 11, 2013

Big Muff said:

The Lawyer's Caddy
Yo Scott ..sorry, I meant to say "watch and enjoy before paying .." you know, like paying for your ticket for the latest Pearl Jam tour AFTER the show.

Geez Louiz! Certainly this crew is a little more up to par than this?!
February 11, 2013

JAMJAM said:

DISTRIBUTEL
i like the way these guys stepped up! i looked at pricing as well and it's really good.Can anyone chime in on there experience with them?
i stopped dead in my tracks (was going to trade ma bell in)when i read there blogs. seems to be a lot of unhappy customer comments there.I dont want to make a negative decision based only on this. As we know people with complaints are always more vocal than those that are satisfied.
February 11, 2013

JJ said:

Why the little guys??
I keep wondering the reason behind targeting the little guys like Teksavvy or Distributel.

Why this? Why not going after Bell/Rogers, when these 2 owns TV stations and would be more interested in stopping illegal downloading of TV shows/movies?

I can't stop thinking there is a secondary motive here, and that is to take care of the small ISPs. I know that companies like Bell/Rogers have been trying to get ride of the small ISPs for some time now. All this bad publicity for small ISPs is just another point for the "good guys"...
February 11, 2013

ENO said:

...
@Bif Muff again sharing is not stealing (any kid in kindergarten could explain that). Who is really trying to steal here (money and not bytes) are this little law firms.
February 11, 2013

maebnoom said:

@ JJ
I keep coming back to that view as well.

If NGN was truly worried about infringement, they would go after the ISPs with the most customers first. Anything less, to me, shows that they are simply trolling for cash, at best...
February 11, 2013

Crockett said:

...
Big Duff, The matter at debate here is not about people stealing stuff but rather about misuse of the judicial system. You may (or not) care if these ends justifies the means, but the miscarriages here are in no way fit the 'crimes'. The following is an example of copyright troll behavior in the USA, we DON'T need it here ...

When a household has multiple members, Prenda evidently decides who to sue based on statistical guesswork. "For example," Prenda wrote in one court filing, "if the subscriber is 75 years old, or the subscriber is female, it is statistically quite unlikely that the subscriber was the infringer."

Judge Wright is unimpressed by this methodology: "The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff’s 'factual analysis' cannot be characterized as anything more than a hunch."

According to Judge Wright, Prenda has failed to provide any hard evidence that the individual defendants it has named were responsible for the illicit downloads. The firm did nothing to rule out "other members of the household; family guests; or, the next door neighbor who may be leeching from the [defendant's] Internet access."
February 12, 2013

Devil's Advocate said:

@Eh:
A little free with the nasty talk, aren't you?
Instead of slinging insults, try backing up what you're saying with a civilized answer to a simple question...

If a "deal" was struck with the troll, then what did the troll get from Teksavvy (as part of the deal)?
February 12, 2013

Golfasaurus said:

...
According to Distributel at least one of their customers has already received an extortion letter that made untrue, wildly exaggerated claims of damages.
Now...
I remember reading that something very similar happened in the UK in the last few years to what we are seeing here, and it ended with the disbarring(?) of a lawyer who made some extreme claim/threats on behalf of a copyright troll in the UK.

My question, then, is how to initiate that process here? Can the first victim of NGN Prima Productions file a complaint with the Law Society of Upper Canada regarding the behavior of NGN's lawyer? Would it be useful if every victim who receives a similarly misleading letter filed a similar complaint? Can anybody complain about the behavior of a particular lawyer, or is it just affected parties, or just other lawyers?
February 13, 2013

john H said:

Distributel service
I have been with them for years (3web before Distributel absorbex them)
I am on cable, physical connection is on Rogers, and have had excellent service without issues. (except for a few minutes when Rogers is digging on the street) My phone is with them too. Zero issues. I can easily recommend them.
March 12, 2013

jimmikorbet said:

Qualified and professional movers
nice blog with some nice informationmoving companies california
May 04, 2013

4437864seeders said:

What are we gonna do with the extra bandwith?
My turbo high speed ultra extreme package is normally used to check my hotmail.
May 13, 2013

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