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    Why Copyright Trolling in Canada Doesn't Pay: Assessing the Fallout From the Voltage - TekSavvy Case

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    Monday February 24, 2014
    The Canadian media featured extensive coverage over the weekend of the federal court decision that opens the door to TekSavvy disclosing the names and addresses of thousands of subscribers and establishes new safeguards against copyright trolling in Canada. While some focused on the copyright trolling issues, others emphasized the disclosure of the names and the possibility of lawsuits.

    What comes next is anyone's guess - Voltage indicates that it plans to pursue the case - but the economics of suing thousands of Canadians for downloading a movie for personal purposes may not make sense given current Canadian law. This post examines the law and estimated costs of pursuing file sharing litigation against individuals, concluding that the combination of copyright reform, the Voltage decision, likely damage awards, and litigation costs will force would-be plaintiffs to reconsider their strategies.


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    Canadian Court Ruling in Teksavvy File Sharing Case a Blow to Copyright Trolls

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    Saturday February 22, 2014
    Appeared in the Toronto Star on February 22, 2014 as Canadian Court Ruling in Teksavvy File Sharing Case a Blow to Copyright Trolls

    The outbreak of copyright trolling cases in the United States and Britain in recent years has sparked considerable anger from courts, Internet providers, and subscribers. These cases, which typically involve sending thousands of legal letters alleging copyright infringement and demanding thousands of dollars to settle, rely on ill-informed and frightened subscribers, who would rather pay the settlement than fight in court.

    Canada was largely spared these cases until 2012, when Voltage Pictures, a U.S. film company, filed a lawsuit demanding that TekSavvy, a leading independent Internet provider, disclose the names and addresses of thousands of its subscribers who it claimed infringement its copyright. TekSavvy did not formally oppose the request, but it did ensure that its subscribers were informed about the lawsuit and it supported an intervention from the Canadian Internet Policy and Public Interest Clinic, a technology law clinic, that brought the privacy and copyright trolling concerns to the court’s attention (I sit on the CIPPIC advisory board).

    The federal court issued its much-anticipated decision on Thursday, granting Voltage’s request for the subscriber names, but adding numerous safeguards designed to discourage copyright trolling lawsuits in Canada. The safeguards include court oversight of the "demand letter" that will be sent to subscribers, with a case management judge assigned to review and approve its contents before being sent to any subscriber. Moreover, the letter must include a message in bold type that "no Court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages."

    While Voltage argued that the privacy issues should not be a concern, the court was extremely troubled by the prospect of copyright trolling. It expressed fear of the “mischief” created by compelling Internet providers to reveal private information about their customers and the danger of flooding the courts with thousands of cases involving subscribers who have good defences to the alleged infringement. Further, the court noted that given recent changes to Canadian copyright law that create a $5,000 cap on liability for non-commercial infringement, the damages “may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber."

    Having cited the dangers of copyright trolling, the court ruled that where there is compelling evidence of "improper motive" of a plaintiff, it might consider denying the motion to disclose subscriber names entirely.  Alternatively, if such evidence is unavailable, there are many safeguards that can be established.

    In this case, the court ruled that there was some evidence that Voltage has been engaged in litigation which may have an improper purposes, but not enough to deny the motion altogether. The court therefore established safeguards such as the court oversight over the demand letter, a requirement that Voltage pay TekSavvy’s legal fees before the disclosure of subscriber information, and assurances that the information released by TekSavvy will remain confidential, not be disclosed to other parties, not be used for other purposes, and not made available to the general public or the media.

    The safeguards are significant, since they ensure the active involvement of the courts in the sending of demand letters and likely eliminate unwarranted scare tactics about potential liability.

    The big remaining question is whether copyright trolls will now view Canada as hostile territory. Given the cap on liability that the government implemented in the last round of copyright reform, court oversight on sending demand letters, the requirements to compensate Internet providers for their costs, and the increased expense the court involvement will create, copyright trolls may wish to look elsewhere as Canada could prove too costly for such dubious legal tactics.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits

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    Thursday February 20, 2014
    The federal court has released its much anticipated decision in Voltage Pictures v. Does, a case involving demands that TekSavvy, a leading independent ISP, disclose the identities of roughly 2,000 subscribers alleged to have downloaded movies without authorization. The case attracted significant attention for several reasons: it is the first major "copyright troll" case in Canada involving Internet downloading (the recording industry previously tried unsuccessfully to sue 29 alleged file sharers), the government sought to discourage these file sharing lawsuits against individuals by creating a $5,000 liability cap for non-commercial infringement, TekSavvy ensured that affected subscribers were made aware of the case and CIPPIC intervened to ensure the privacy issues were considered by the court. Copies of all the case documents can be found here.

    The court set the tone for the decision by opening with the following quote from a U.S. copyright case:

    "the rise of so-called 'copyright trolls' - plaintiffs who file multitudes of lawsuits solely to extort quick settlements - requires courts to ensure that the litigation process and their scarce resources are not being abused."

    The court was clearly sensitive to the copyright troll concern, noting that "given the issues in play the answers require a delicate balancing of privacy rights versus the rights of copyright holders. This is especially so in the context of modern day technology and users of the Internet."

    So how did the court strike the balance?


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    Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits

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    Thursday February 20, 2014
    The federal court has released its much anticipated decision in Voltage Pictures v. Does, a case involving demands that TekSavvy, a leading independent ISP, disclose the identities of roughly 2,000 subscribers alleged to have downloaded movies without authorization. The case attracted significant attention for several reasons: it is the first major "copyright troll" case in Canada involving Internet downloading (the recording industry previously tried unsuccessfully to sue 29 alleged file sharers), the government sought to discourage these file sharing lawsuits against individuals by creating a $5,000 liability cap for non-commercial infringement, TekSavvy ensured that affected subscribers were made aware of the case and CIPPIC intervened to ensure the privacy issues were considered by the court. Copies of all the case documents can be found here.

    The court set the tone for the decision by opening with the following quote from a U.S. copyright case:

    "the rise of so-called 'copyright trolls' - plaintiffs who file multitudes of lawsuits solely to extort quick settlements - requires courts to ensure that the litigation process and their scarce resources are not being abused."

    The court was clearly sensitive to the copyright troll concern, noting that "given the issues in play the answers require a delicate balancing of privacy rights versus the rights of copyright holders. This is especially so in the context of modern day technology and users of the Internet."

    So how did the court strike the balance?


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