(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.”
McAffie didn’t speak long, but what he said transformed the role he’d been handed and vindicated TekSavvy’s decision not to fiile a formal objection to Voltage’s original motion. In addition to a ringing defence of TekSavvy’s customers, McAffie delivered a strongly worded denunciation of Zibarras’s heavy-handed attempts to rush the court into granting an order. McAffie had all of the plaintiff’s cards laid out on the table, especially the weaker ones. He had details from Fewer’s intervention. And, even better, he had some telling reactions from the bench on the core issues and how they might affect the outcome.
McAffie explained first of all that the client’s team had learned a great deal from having been “caught in the middle” – a position that was not easy or enviable for any Canadian ISP, given the provisions of the law. That learning experience had been directed at two major bones of contention. The first was whether and how TekSavvy’s customers were to be notified. The second was about those fence posts.
Notice. McAffie brought the issue of notice to TekSavvy’s customers back into play as a significant debating point – significant because it might not have happened if left to Voltage or a less involved ISP, and because the process revealed that Voltage had walked into a contradiction of its own making. He emphasized that the experience the parties had been through about notice should be taken into account by the court in a prospective view of this kind of conflict.
Three points stood out. One, at the outset the client team didn’t know exactly what its legal obligations were – quite a confession coming from an IP litigation partner at a Seven Sisters firm. That puzzlement covered several questions, including the status of the Doe’s and whether or not the plaintiff was obliged to allow notice in the first place. These questions seemed to me to be a pretty good reason for having held back on a formal objection to the plaintiff’s motion.
Two, McAffie then addressed himself to the predicament of the Doe’s identified by Canipre. He wondered how Doe’s could come forward without identifying themselves, though one solution in other cases was to have legal counsel represent a Doe anonymously. While that might fix the problem of public revelation for the time being, it was also likely to create another problem: make any such Doe appear to be accepting guilt.
Three, McAffie highlighted a key technical inaccuracy in Voltage’s version of events. When drafting the first customer notice, Voltage’s lawyers tried to cover their bases by warning the recipients not to engage in what they termed any other “illegal downloading.” As McAffie pointed out, glancing at his opponent, Voltage was caught in a contradiction: its current argument rests on the offence of making available without authorization – an action completely separate and distinct from downloading (the key point being you can download without making available, Zibarras’s claim to the contrary notwithstanding).
Fence posts. McAffie reminded the court that, for all its importance as a precedent, BMG was different from the present case in one crucial aspect: in BMG the defendants had been at least partially identified from the outset by a Web handle, whereas Voltage still had nothing but a set of numeric IPs to work from. The elusive balance that lay at the heart of a resolution was different in a case like this one, where the defendants clearly had more to lose – not only because their identities were more problematic, but also because so many TekSavvy customers were implicated. McAffie went on to reject the argument that these customers didn’t risk appreciable social stigma if publicly identified, as they would, Zibarras had argued, if they’d been caught downloading porn.
The court then heard several further arguments from McAffie as to why any order would need solid fence posts.
First, the privacy caution raised in BMG was even more germane in the Voltage suit because of the status of the Doe’s. McAffie noted that for purposes of a TekSavvy account in nothing more complicated than a four-person household, serious problems would arise in identifying an actual infringer. One of the complicating factors is that the account holder is not under a strict legal obligation to ensure the ISP connection is used for legitimate purposes (though that leaves a question as to whether and how the AUP associated with the account relates to a statutory offence like infringement).
The second and third arguments were also familiar. If Voltage was allowed to proceed, the court might be swamped by defendants. We were also reminded once more that Voltage had been chastised by American courts for vexatious behavior – the case in point being the recent Oregon suit in which the court had sanctioned Voltage for abusing the judicial system and trying to collect $7,500 in settlements for a movie that could be purchased for $9.99.
The final reason McAffie put forward concerned the welfare of ISPs caught in a proceeding of this kind. It wasn’t just the reputation of defendants that was at stake. Hundreds of negative comments in blogs and on discussion threads at e.g. DSLReports made it very clear that TekSavvy’s reputation as a business had taken a hit because of the discussion of its role in the case. McAffie took this point further, suggesting that a court order makes an ISP an agent of the plaintiff – a concern that extends to any other ISP faced with decisions about whether to object to a motion to disclose. An actual order would raise even more questions in the public debate about how and why TekSavvy was in possession of sensitive customer information.
Then it was finally time to line up the fence posts. I counted about five issues McAffie outlined as needing careful consideration in the drafting of an order. These were:
Sensitive handling of customer information. Only names and addresses should be used, and customer privacy could be enhanced by using initials instead of full names. Given its reputation, Voltage should also be required to sign a confidentiality provision.
Later safeguards. There are several issues surrounding Voltage’s downstream use of the customer information. Here McAffie singled out one in particular: Voltage must not be allowed to maintain the information in an “ongoing database.”
TekSavvy costs. Responding to Voltage’s motion, collating customer information, retaining counsel and other tasks related to the case incurred “substantial” costs for TekSavvy. Although there is provision for cost recovery from the plaintiff, we learned that the two sides are in sharp disagreement over the quantum. Since Voltage is headquartered outside of this jurisdiction, McAffie wanted costs settled at an early stage so TekSavvy does not have to chase after the money.
Litigation oversight. Aalto faces a tough call on this point – whether and how the plaintiff’s litigation strategy ought to be laid out in advance and closely supervised (I’m not clear just how that would work). Zibarras was, of course, having none of this idea, but McAffie was adamant that Voltage’s record in the US meant safeguards would be necessary.
Misleading language. McAffie identified an issue arising from draft language already used by Voltage, i.e. “You have been identified as having infringed…” His point focussed on the question-begging nature of the excerpt, i.e. that it assumes what remains to be proven. This language is highly misleading, since no one has identified anyone. It also misrepresents the defendants’ legal rights. If the court accepts McAffie’s argument, that would suggest Aalto would have to be closely involved in the provision of safeguards, since demand letters might be sent to well over 1,000 customers.
Once McAffie finished and Aalto allowed Zibarras to deliver one more rebuttal, the mood in the courtroom shifted, an observation other people noted when we talked later – to say nothing of the comments from the bench, which included concern about the plaintiff being willing to run roughshod over the rights of the alleged infringers.
I sensed that McAffie’s arguments made issuance of an order more problematic and risk-filled than it had seemed only an hour earlier. One of the parties involved suggested to me that the welfare of both TekSavvy and its customers was now likely to get more careful consideration by Aalto as he deliberates. As I mentioned earlier, this outcome – partly the result of overreaching by Zibarras, partly the result of McAffie’s skills as a litigator – has eclipsed all the hand-wringing earlier this year over TekSavvy’s unwillingness to file a formal objection.
I’m still convinced Aalto will have a tough time justifying to himself an outright denial of the order, although questions about the veracity of the evidence could derail the order. I’m equally convinced, in any case, that McAffie succeeded in persuading Aalto of the urgent need for a broad range of safeguards to hem in the plaintiff and make the process as unintrusive as possible for the defendants. In doing so, McAffie may also have set a new legal threshold for conditions on any court order that might jeopardize privacy, confidentiality, reputation or due process.
The end, for now.