Canadian Court Tries to Dampen Copyright Trolls In P2P Lawsuits

An anonymous reader writes "The Canadian 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. Michael Geist notes that the court was 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.' In order to strike the balance, the court required full court approval of the content of any demand letters and bold warnings that no court had found a recipient liable for any damages."

Comments

Finally

[Anonymous Coward]

A court with a shred of common sense regarding patent/copyright law...

Erm, what?

[Notabadguy]

Could someone translate that crappy summary into English for me?

Re:Erm, what?

[davecb]

The case management judge will make sure the suit goes the way the law allows, without the opportunity to extort settlements. The does will have the chance to defend themselves, and the troll will have to spend cubic yards of money to make a case, or give up and go home.

I expect one attempt to proceed to see if they can frighten someone into pleading guilty, but if the does band together, a roughly 0% chance of success for the troll, whether or not any individual doe is arguably guilty.

--dave
A nerd, not a lawyer

Re:Erm, what?

[Anonymous Coward]

In short: The court must approve the contents of a copyright claim letter before it can be sent AND it must come with a warning stating that no court has ever convicted anyone of copyright charges.

Re:Erm, what?

[Mashiki]

Summery:
* Teksavvy must reveal identity of alleged infringers.

* TSI gets all legal costs, admin costs & disbursements.
** TSI gets paid before Voltage sees even a single name. No money, no names.**

* Any/all letters from Voltage MUST be approved by both the Court & CIPPIC, so as not to provide false information to defendants, and coerce them into settlements.
* Letter will include a statement that 'no Court has yet found any recipient of the letter liable for infringement and that recipicies should [seek] legal assistance".
* Every letter to an alleged infringer will get a copy of the judge's order.
* Any subscriber can request a full copy of the order, for which the Plaintiff (Voltage) must pay for.

* Voltage will only receive Name & Address attached to specific IP addresses of the alleged infringers, and nothing more.
* There will be a special Judge assigned to this case, and will 'monitor, as necessary, the conduct of Voltage in its dealings with the alleged infringers."

* If Voltage splits a subscriber out of the herd (so to say), the special judge will keep hold of the new case.

* Voltage cannot make statements to the media, releasing defendant names or addresses.

Re:Erm, what?

[FuzzNugget]

I already did in my submission of this article:
http://slashdot.org/firehose.p...

1. Any "demand letters" sent out must be reviewed and approved by the case management judge.

2. Letters must include a copy of the court order and clearly state, in bold text, that no court ruling has established liability for payment or damages by the recipient.

3. TekSavvy may only disclose subscribers' names and addresses.

4. Voltage Pictures must pay Teksavvy's legal costs before the release of subscriber details.

5. Any further action brought against subscribers must be case managed.

6. Subscriber information must be kept confidential and not disclosed to the general public, the media or anyone not directly relevant to the case.

Re:Erm, what?

[Anonymous Coward]

The courts allowed the trolls to get only names and addresses from Teksavvy, and have assigned a judge to sit on the trolls, making sure that there are no extortion letters (letters can be sent, but the judge gets the final edit: no "give us a bazillion dollars or we will take your house, car, drain your bank accounts and sell your organs on the Asian black market"). They are also limiting what the trolls can do as far as filling more suits (if the trolls abuse the courts time/resources, the court will either shut them down, or bill them heavily).

Re:Erm, what?

[Mashiki]

For those interested here's the CIPPIC information.

Re:Erm, what?

[noh8rz10]

The does will have the chance to defend themselves, and the troll will have to spend cubic yards of money to make a case, or give up and go home.

An evocative image, so I was driven to do the math. It's not necessarily a lot of money! A cubic yard of US pennies is worth USD $5233.09. I'm assuming you stack them in rolls so they're touching triangularly like bowling pins, not square like beer bottles. You can squeeze in ~16% more this way. Note this has a volume of 1 cubic yard, but wouldn't be exactly cubical.

Re:Erm, what?

[Zontar The Mindless]

I never ceased to be amazed at some folks' inability to parse perfectly grammatical and sensible English.

I can't believe that many people are that stupid, so I ascribe it to "That sentence is longer than 12 words, and that's already too much effort."

Re:Erm, what?

[Anonymous Coward]

The judge in the case has taught Voltage Pictures the meaning of a pyrrhic victory.

Re:Erm, what?

[Anonymous Coward]

Canada got rid of the penny last year

Re:Erm, what?

[Kernel Kurtz]

Well, conveniently that is $233.09 more than the statutory damage cap of $5000 that they might realize if they win (excluding exchange rate, which makes it even more of a loss).

Re:Erm, what?

[lsatenstein]

Could someone translate that crappy summary into English for me?

The ISP is not a whistle blower, whose rights to insure the privacy of its clients would be overrulled.
If Voltage wants each name, they must go to court. They cannot just threaten the household or business which as recognized URL. Want the name, go to court for each name.

Do not allow threatening to sue for large amounts. Let the courts decide if there is a penalty.

Essentially, if there were 28,000 illegal downloads, then there should be 28000 court cases.

Re:Erm, what?

[Anonymous Coward]

But... bowling pins don't touch...

That's only part of the story.

[Yaztromo]

In addition, the court also found that Voltage Pictures has to pay TekSavvy for all costs associated with gathering the data, and that they'll be limited to $5k in damages per person found to infringe.

May sanity reign!

Yaz

Re:That's only part of the story.

[Notabadguy]

I particularly like the part where the demand letter to subscribers will include a copy of the court order and "clearly state 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."

No pulling the wool over peoples' eyes. I still don't get the summary though.

Re:That's only part of the story.

[MightyMartian]

A $5000 limit is going to make persuing non commercial infringers economically unviable.

Re:That's only part of the story.

[Anonymous Coward]

it's not like Voltage Pictures, a media company, would be short on money or anything. the execs there still probably have their 8-figure salaries, and their lawyers too but at least the court ruled in favor of privacy advocates

Re:That's only part of the story.

[Anonymous Coward]

I'd hope that was the point

Re:That's only part of the story.

[davecb]

The order is better written than the summary. Them there Canajan Judges speak good English (or American (:-))

Re:That's only part of the story.

[Yaztromo]

$5000 per infringer (not per infringement) is the maximum. The minimum is $100, and I've heard word that the court is more likely to impose the minimum. The plaintiff either has to prove actual damages, or can apply for statutory damages, between $100 - $5000 at the judges discretion. The copyright act stipulates that the judge needs to consider whether the infringement was for non-commercial purposes, whether it was for private purposes, and whether it would constitute hardship for the defendant to pay.

Yaz

Re:That's only part of the story.

[davecb]

They're a "production company", a hired hand. They don't finance pictures.

Re:That's only part of the story.

[Anonymous Coward]

At least in the US, their claim to ownership of the copyright is also reasonably questionable.

Re:That's only part of the story.

[JMJimmy]

In Canada the loser generally pays fees so it's still viable, just delays when they get their money. Many are just in it for the quick buck (just like movies, first 45 days of release are where the money is - they have little interest in the long tail) but big studios may see this as a long term cashcow.

Re:That's only part of the story.

[Anonymous Coward]

Though legal costs are awarded to the victor in Canadian litigation suits, these are normally on a partial indemnity basis which usually works out to between 50-66% of the actual costs. Even with full indemnity costs, recovery is still usually only 75% of actual. Different factors play into what the court determines to be reasonable (e.g. in Ontario). But even with full indemnity, odds are good that pursuing the actions here would be at a net loss. That said, the company might be willing to spend a few million on a scare campaign.

Re:That's only part of the story.

[Zontar The Mindless]

A $5000 limit is going to make persuing non commercial infringers economically unviable.

...and this is supposed to be a bad thing, because...?

Re:That's only part of the story.

[Zontar The Mindless]

That's "Canajian", isn't it?

Re: That's only part of the story.

[Anonymous Coward]

actually I read another of the exact same article and itty went into more detail and it mentions the penalty for pirating being the cost of either buying the movie or the rental cost. the minimum $100 is I believe if you where distributing/sharing the copyright material in question.

Re:That's only part of the story.

[Anonymous Coward]

In Canada the loser generally pays fees ...

Bullshit.
.
In Canada, the winner may *ask* the judge to rule that the loser pay costs, but it *generally does not go down that way*, unless the loser is a dick (not a legal term.

In other words, and contrary to what the parent posted, good luck thinking your legal fees are covered, win or lose.

Re:That's only part of the story.

[m.ducharme]

It's not $5k per person, it's $5k per lawsuit. If they go after all 2000 infringers in Voltage v Does, they will be limited to $5000 statutory damages, if they choose statutory damages; they can still try to prove actual damages on a per plaintiff basis. Since actual damages is (lost profit of one copy of "jarhead")*infringer, and they actually have to prove those damages on a balance of the probabilities (i.e. everyone with open wifi routers walks), they're not going to make much money.

Re:That's only part of the story.

[m.ducharme]

Not per infringer, per lawsuit. Only way to get $5k per infringer is to sue each infringer separately.

38.1 (1) Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, ...
(b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes.

Re:That's only part of the story.

[Anonymous Coward]

The elephant in the ruling is the orders relating to costs. The court has made it pretty abundantly clear that there will not be much scope for costs recovery in actions proceeding from this fishing expedition, which means that at best each party would bear its own costs (with Voltage bearing on an idemnity basis the costs of Teksavvy in furnishing the information they want), and at worst Voltage will be hit with an adverse costs order on every case in which they (a) lose or (b) do no better than whatever offer of settlement is made by a losing defendant. Any reasonable litigation specialist should tell Voltage, if Voltage were her or his client, that this means in raw commercial terms they have lost and would simply be wasting their own money and time in proceeding further.

Re:That's only part of the story.

[JMJimmy]

The parent posted the text of the law and while likely isn't quoting exact %s the gist of what he says is supported by other sources. http://www.torys.com/Publicati... - see "Recovery of Legal Fees" and http://www-personal.umich.edu/... and http://millsandmills.ca/2011/0... and... I could go on but you probably won't read any of those links.

Re:That's only part of the story.

[JMJimmy]

They did finance a couple of the ones involved in the suit (some crappy one with Segal and one other random one)

Re:That's only part of the story.

[H0p313ss]

That's "Canajian", isn't it?

That's the Canajian spelling, in the US the use of Canajan is tolerated.

Improper purposes (:-))

[davecb]

"there is some evidence that Voltage has been engaged in litigation which may have an improper purposes".

And he assigned a case management judge to supervise in concert with the interveners. Polite, Canadian, and organized so that an honest suit would go forwards, but a troll would find themselves caught between making a loss or committing contempt of court.

Re:Improper purposes (:-))

[Anonymous Coward]

But the Canadians misunderstand (just like the US judges they get "some evidence" from) the problems a good-faith plaintiff faces in these cases. All the 'protections', severance, etc. do is raise the costs of enforcement. If you pay $450 in filing fees for 450 IP addresses and send a polite but strong letter, you don't really have to worry about astronomical settlement amounts. If you require each suit to proceed individually, with court oversight of any initial contact letters, pretty soon you're talking $1000 in _costs_ per potential plaintiff before you even know who they are. Once you start culling off the categories of people you can't collect from, like those that operate open access points, are not subject to actual collection due to financial circumstances, those that moved away in the meantime, or the like, it's easy to see how you'd need say, $5000, from everyone you can actually proceed against, just to cover your first stage costs.

Ask yourself honestly, if it were your job to enforce these copyrights, are you more comfortable in the situation where you can reasonably accept a $100 settlement offer from a grandmother who says it was probably her teenage grandson and she's willing to pay? Or the situation where you have to say sorry, grandma, we need more like $8000, see you in court.

Re:Improper purposes (:-))

[Zontar The Mindless]

Why not be even more comfortable, and confine yourself to going after those who are infringing and profiting from it?

Re:Improper purposes (:-))

[dakohli]

Well stated, from Voltage's point of view

But of course, behaving like a "good-faith plaintiff" does not fit in with the revenue model. The whole original plan was to try and scare people into settling without going into a courtroom. Because, as soon as you get in the courtroom, there are Judges and sometimes Juries who you can never completely control. Costs also increase. So, you pick a test case you think you can win, prosecute the shit out of that one, even though you know you'll never get any real money, the judgement is the prise. Keep it really high, so that when you get your next batch of infringers you can threaten them with complete destruction. That way, more people will be inclined to settle without you every having to go back in the Courtroom again.

Of course, the Canadian rules have broken this model. Now, they have to pay for the list of names. They will have to pay to bring someone in to actually sue to make the point, and determine how the Canadian Courts are actually going to award damages. With a max infringement level of $5000, this is going to be close. Even if they are awarded some court costs, there will be few big payoff days. I suspect they are hoping that one of the secret treaties (TPP maybe) will force the Canadians to change the rules and come back to a more US style of play, and actions like this will be more placeholders to "prove" that litigation like this is truly important.

Re:Improper purposes (:-))

[Anonymous Coward]

Dear Silly Twit,

The court is looking at Voltage's action in the proper light; ie trolling for victims and have imposed measures to make it difficult for them.

Voltage did not behave as you suggested " pay $450 in filing fees for 450 IP addresses and send a polite but strong letter".

A good faith plaintiff would not behave as Voltage has already behaved and thus would not find themselves being babysat by a case management judge.

It is a VERY simple case of a plaintiff trying to use the court system to lie and bully 2000 Does and the judges saying "Whoa there, that behavior is unacceptable"

Re:Improper purposes (:-))

[davecb]

I depend critically on copyright to protect my book income, and am a good-faith plaintiff (via my publisher), but we do not have a credible reason to go after people who download individual copies. In fact, we make copies of "Using Samba (O'Reilly) available with every copy of the samba program.

The people I worry about are professional crooks, who print pallet-loads of the book and sell them cheap. Ditto unauthorized translators, because I don't get royalties for massive quantities of books. Historically, publishers like mine have been able to use the courts in their traditional form and file individual suits to stop unauthorized printings.

To get value from grandma (assuming she's a sysadmin grandma) we make the book available on-line, as part of a subscription service. This allows us to benefit from her just wanting to refer to it for a few days, or wanting to print out the section from Chapter 3 on setting up XP. She knows she can find it in the samba download, but it's easier to spend a few dollars and save the time. Just like it's worth the price of a professionally-printed book that she can make notes in, put yelow stickes on and read in the bathtub.

Class actions are a relatively new development, and were originally permitted so as to allow large numbers of individual plaintiffs to band together to sue a single malefactor. Allowing a single plaintiff to sue very large numbers of possible malefactors is unusual. The courts are suspicious of it, and wonder if it is legitimate to sue more than one grandma for $8,000, or even $100, for a blue-ray that costs $8.00 Canadian on Amazon (down from $20.99)

The balance between an honest plaintiff and one engaging in "speculative invoicing" is the subject of learned debate amoung the legal profession in Canada: for a non-learned discussion, see http://www.slaw.ca/2013/01/16/... I had the honour of editing this GTALUG submission to the larger debate.

So, to answer your question, I'm not comfortable asking Grandma for any money after the fact. I want her to go to Amazon, pay $8.00 up front and stream a legitimate copy of the movie. If I find a publisher making it available for $2.00 who isn't paying me royalties, I'll sue them.

Re:Improper purposes (:-))

[rts008]

Ask yourself honestly, if it were your job to enforce these copyrights,...

If you are bringing 'honesty' into this, then you are operating from a flawed premise that he/she would even have that job to start with.

I know I would 'honestly' not take that job with my viewpoint on copyright!

Your type of argument is from a false position you created to support your view.

Try arguing your case with facts instead of strawmen and fake parameters.

Re:Improper purposes (:-))

[Anonymous Coward]

I think you'll note those are choices you've made as a copyright holder (or that your publisher does)- do you insist that everyone else make the same choice?

And no, the term "speculative invoicing" pretty much indicates it's not a learned debate- otherwise you wouldn't use such a pejorative term. In what other context would lawyers as officers of the court be _against_ settlement attempts? If you told some ambulance chaser they could only attempt to collect actual medical costs in settlement negotiations they'd laugh you out of the office. More to the point, how can it be "speculative" if it's well less than the maximum statutory damages? Are plaintiffs supposed to already know beforehand every fact and circumstance involved in the case, including the attitude of the judge? Oh, well the statute says I can get $5000, but this judge doesn't like me so I should only ask for $100. Sounds like a great way to run a system of justice.

Re:Improper purposes (:-))

[Anonymous Coward]

I think you need to re-read that. The position appears to have been that some measures increase enforcement costs and such an increase can limit flexibility. Your position appears to be "I hate copyright so you're wrong".

Did you consider the possibility that client confidentiality might prevent the poster from stating your sought-after facts? It isn't, for instance, hard to look up that filing fees for a copyright case in US Federal Court are $450... there are your "fake parameters" for you.

Re:Improper purposes (:-))

[davecb]

For other readers, this AC is a troll.

Speculative invoicing is a British term, describing the behaviour of law firms who have since been disbarred for a specific form of copyright trolling. The troll knows that, and freaked out at a seemingly innocuous term.

Draw your own conclusions.

--dave

Re:Improper purposes (:-))

[Anonymous Coward]

The $5000 infringement limit is actually per lawsuit. If they bundle them up like they enjoy doing in the states, they basically kill their abilitity to collect anything. Even if they file against each person individually, the maximum (and I don't see the judge who wrote this order giving maximums) they can collect per lawsuit is $5000.

They'll never make any money.

Re:Improper purposes (:-))

[Anonymous Coward]

No, I just happen not to make the same assumptions you do. You believe copyright holders should ignore a specific class of infringement. I don't, because I don't see a relevant difference between one infringer and another: they're both trampling on rights granted by legislation. If you'd care to limit your advocacy to changing legislation rather than judging an entire class of copyright holders (and presuming you know how to make better decisions regarding their rights than they do), then maybe we'd have something to talk about.

"opportunity to extort settlements"
"frighten someone into pleading guilty"
"freaked out at a seemingly innocuous term"

One of us does use loaded terminology, and it's not me. Re-read your own sentence: "speculative invoicing is a... term describing the behaviour of law firms who have... been disbarred." Are you saying Voltage was disbarred? How can you differentiate between "speculative invoicing" and legitimate negotiation? That's why it isn't learned debate, if you say "speculative invoicing" you've already made up your mind.

"I want her to go to Amazon, pay $8.00 up front and stream a legitimate copy of the movie."

And you think Voltage wouldn't prefer that too. Interesting. Any evidence in that regard?

Canadian infringement an oxymoron

[Anonymous Coward]

Isn't infringement already taxed and thus approved by the government in Canada?
The taxes are actually above the cost of the media in a lot of cases including CDs...
http://en.wikipedia.org/wiki/Private_copying_levy#Canada

Re:Canadian infringement an oxymoron

[Anonymous Coward]

Nice link- if you read it you can answer your own question:

The levy applies to "blank audio recording media"

The subject case is Voltage _Pictures_

Let me guess

[the eric conspiracy]

This gets Canada back on the Copyright Shit List?

So what does it take for a Merican to get Canadian citizenship anyway?

Re:Let me guess

[JMJimmy]

The conservatives (Canadian Republicans) *ASKED* to be put on the US shitlist - they would never have been on there otherwise.

Re:Let me guess

[QA]

I would say $200,00.00 is a good start

http://www.cic.gc.ca/english/h...

Re:Let me guess

[Anonymous Coward]

I would say $200,00.00 is a good start

http://www.cic.gc.ca/english/h...

I hear that the number of zeroes can make a big difference in such figures. Just sayin'...

Re:Let me guess

[Guido von Guido II]

The system Canada uses to determine who can get a permanent resident card is based on points. You get so many points for your occupation (assuming it's on the list, which changes periodically), so many points for speaking English and/or French, etc. If you have enough points you can apply for your PR card (pay the fee, send them your fingerprints, medical examination, etc.). Once you've lived in Canada for about three years you can apply for citizenship.

Re:Let me guess

[Anonymous Coward]

The system Canada uses to determine who can get a permanent resident card is based on points. You get so many points for your occupation (assuming it's on the list, which changes periodically), so many points for speaking English and/or French, etc. If you have enough points you can apply for your PR card (pay the fee, send them your fingerprints, medical examination, etc.). Once you've lived in Canada for about three years you can apply for citizenship.

The quickest route to Canadian citizenship used to be being a Somali Warlord or a member of the warlord's family. Welfare cheques for all...and a nicely appointed apartment. At one point "professional escorts" were actively recruited and granted fast-track permanent resident status. The Government of Canada apparently needed more companions for the politicians when they lived in Ottawa and were away from their families.

Re:Let me guess

[H0p313ss]

The system Canada uses to determine who can get a permanent resident card is based on points. You get so many points for your occupation (assuming it's on the list, which changes periodically), so many points for speaking English and/or French, etc. If you have enough points you can apply for your PR card (pay the fee, send them your fingerprints, medical examination, etc.). Once you've lived in Canada for about three years you can apply for citizenship.

The quickest route to Canadian citizenship used to be being a Somali Warlord or a member of the warlord's family. Welfare cheques for all...and a nicely appointed apartment. At one point "professional escorts" were actively recruited and granted fast-track permanent resident status. The Government of Canada apparently needed more companions for the politicians when they lived in Ottawa and were away from their families.

As always, the best approach is to marry a Canadian and then be very careful that you follow the application procedure to the letter.

Cubic Yards

[chimpattack]

Thankfully, with a CAD $5000 (USD ~$4500) cap on damages for non-commercial infringement, spending even a cubic yard of pennies would still be a net loss for a copyright troll.