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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Canipre, a Montreal-based intellectual property rights enforcement firm, has admitted that it is behind the Voltage file sharing lawsuits involving TekSavvy in what is described as a “speculative invoicing” scheme. Often referred to as copyright trolling, speculative invoicing involves sending hundreds or thousands of demand letters alleging copyright infringement and seeking thousands of dollars in compensation. Those cases rarely – if ever – go to court as the intent is simply to scare enough people into settling in order to generate a profit.
Canadian Business reports that Canipre’s goal is to import the speculative invoicing strategy to Canada and that it found a willing partner in Voltage Pictures. Canipre collected thousands of IP addresses that are alleged to have downloaded Voltage films and Voltage is now asking the Federal Court to order TekSavvy to disclose the subscriber names linked to the IP addresses.
The Canipre admission is important because it is consistent with arguments that the case involves copyright trolling and that the Federal Court should not support the scheme by ordering the disclosure of subscriber contact information.
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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.
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David Ellis has a complete review of yesterday’s Federal Court hearing in the Voltage – TekSavvy file sharing case. The judge sided with TekSavvy in adjourning the case to give CIPPIC the opportunity to have its request to intervene in the case considered.
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David Ellis provides an excellent review of yesterday’s court hearing involving Voltage Pictures’ request for a court order mandating that TekSavvy disclose customer information on thousands of subscribers.
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