Voltage talent were so excited about Thursday’s decision they took their clothes off

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Court orders Canadian ISP to reveal customers who downloaded movies — Globe and Mail, Feb 21, 2014

Downloading Decision: Federal Court Establishes New Safeguards on Disclosures in File Sharing Suits — Michael Geist blog post, Feb 20, 2014

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[Feb 27: a few minor edits and additions]

You may have noticed something uneven about the press coverage of this week’s Federal Court decision on Voltage’s motion to get the contact info of 2,000 TekSavvy subs. The headlines made it all about the order to disclose and the prospect of a lot of personal information being revealed.

That wasn’t and isn’t the story, for two notable reasons. One, the order was pretty much inevitable; two, the order was hedged with unprecedented safeguards directed at both copyright trolling and end-user privacy. Continue reading →

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(continues from previous post…)

Counsel for TekSavvy in a strong finish

After Zibarras was given time to address Fewer’s arguments with further dramatic rejoinders (opposing counsel’s views could make Canada a “haven for piracy”), the floor went to TekSavvy’s counsel, Nick McHaffie.

McHaffie had by this point received a number of nods from the bench as to his role that day. Several of the nods went to the fence posts, so by the time he rose, we had a pretty good idea of what was coming – especially given the awkward position TekSavvy found itself in as a “non-party.” Continue reading →

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In my previous post, I predicted that the presiding judge (Kevin Aalto, technically a prothonotary of the Federal Court) will ultimately grant the Voltage motion requesting that he issue a disclosure order to TekSavvy. Over at the HuffPost, that opinion was seen to be part of a larger body of current opinion:

TekSavvy File-Sharing Lawsuit: Voltage Pictures Will Likely Get Their Way In Court, Observers Predict

[…] The case is being closely watched by consumers’ advocates because it is one of the first of its kind in Canada and the very first since the federal government instituted a new copyright law last year […]. A “court order looks inevitable,” tech blogger and occasional HuffPost contributor David Ellis wrote on his blog.

While that prediction may very well come true, it’s important to understand two things about the way the case unfolded in the courtroom last week. First, Justice Aalto was clearly torn about the complex issues raised by the motion to disclose, and in no hurry to get to the next step. Second, Nick McHaffie, counsel for TekSavvy, made a surprisingly strong, even vehement case for attaching what he saw as crucial safeguards to any order – the  term of art for those safeguards being “fence posts.” (I was glad to see the HuffPost also cited Teresa Murphy’s views on the case, as she works tirelessly on cases like this to keep information flowing and people connected.) Continue reading →

TekSavvy CEO Marc Gaudrault, COO Pierre Aubé and marketing director Tina Furlan talking to a reporter. The ISP’s counsel Nicholas McHaffie shed his robes after stealing the limelight in the last half hour of Tuesday’s hearing at the Federal Court of Canada.

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Correction (June 27) concerning BMG Canada Inc. v. John Doe. In my haste to get this post finished, I misrepresented the import of this well-known precedent for the Voltage case in the particular context of Tuesday’s hearing. My thanks to Nick McHaffie and Marc Gaudrault for bringing this inaccuracy to my attention. See revised passages below in the para starting “To no one’s surprise…” (section 2, Chicken/egg).

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<< Executive summary >>

Opening: “I’ve done my reading, but I’m not particularly tech savvy. […] It’s unlikely I will render a decision at the end of the hearing today.” —Justice Kevin Aalto.

“Copyright has been literally unenforced forever.” –Voltage counsel James Zibarras.

“We have a record of Voltage using speculative invoicing in the United States.” –David Fewer, counsel for intervenor CIPPIC.

“How can John Does come forward […] without thereby accepting guilt?” –TekSavvy counsel Nicholas McHaffie.

Closing: “It has been a very interesting day.” –Justice Aalto.

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Canada’s first mass piracy lawsuit is shaping up to be a mess.

Court order looks inevitable. You heard it here first: I predict the presiding judge will accede to Voltage’s request to issue an order requiring TekSavvy to divulge the names and addresses of 1,000 or more subscribers who are suspected infringers. But the case is so fraught with issues – and a bizarre Catch-22 – he will feel obliged to erect a series of Draconion “fence posts” around the order to prevent the plaintiff from lapsing into one of its old defendant extortion schemes. (For anyone who fell behind in their reading, check out the posts I wrote starting in December – Infringement assault on TekSavvy: Voltage Trolls come north. The latest motions, affadavits, cross-examinations and other paperwork are posted over at the TekSavvy site.) Continue reading →