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.
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).
<< 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.
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.)
Three questions dawned on me as we sat through the four-odd hours of arguments from counsel and witticisms from the bench (Aalto bracing for another labored explanation: “Here we go round the Mulberry bush” – His Honour is a funny guy)…
- One, where is everyone?
- Two, can you have a case without evidence if you can’t have evidence without a case (see: Catch-22)?
- Three, how did the non-party (TSI) and the friend of the court (CIPPIC) get their roles reversed?
1. What if they threw a hearing and not a single defendant showed up?
Until about 20 minutes into the hearing, there were exactly as many bodies fluttering about in black robes as there were spectators in the tiny peanut gallery – eight on each side of the bar. Even after we grew to the three-person crew from TekSavvy, Mel Cohen and his two cohorts from Distributel, a couple of reporters, Paul Anderson from CIRA, the ubiquitous Teresa Murphy and myself, it sounded mighty strange to hear the parties refer again and again to the 2,000 or more potential defendants who are at the centre of this case but were more than conspicuous by their absence.
That wasn’t the only dramatic irony in the roll call. Both Fewer and McHaffie warned that the strategy employed by Voltage raised the risk that the court might be swamped by as many as 2,000 lawsuits. Justice Aalto was entirely receptive to that caution, as he worried aloud several times about his court’s resources being overwhelmed. Indeed, even if a mere 15 or 20 of the putative 2,000 defendants had shown up, we’d have run out of seating in the public gallery.
The narrative on the absentee defendants took another strange twist when Zibarras tried to convince Aalto not to be concerned about a mob in his court, since all he was asking for was the order to disclose. That would be great for everybody, he argued, since it would then be possible for the plaintiff to look at a number of different ways to proceed – like settlement letters instead of all those messy lawsuits. But Zibarras was on the horns of a dilemma. On one hand, Aalto, like his predecessor on the bench, is having to face down Canada’s first mass copyright suit, a problem just in the sheer numbers.
At the same time, CIPPIC and other observers (myself included) have been busy uncovering some ugly behavior in Voltage’s past. In a CIPPIC finding I cited in an earlier post, Voltage has in the past three years filed 22 other infringment suits, all in the United States but spread across a dozen different jurisdictions. The total number of alleged offenders, most of them John Doe’s, add up to well over 28,000 individuals. I also understand that very few of these targets has ever had his or her day in court.
Zibarras was ready for the widely publicized accusations that his client a) has developed a business model that depends on procuring defendant contact information through a court order; b) has stooped to sending threatening letters asking for unreasonable payments; and c) has no interest in trying cases to establish guilt or innocence (or fair payment) since the forensic evidence is problematic and the costs are too high. The word “lottery” came up several times in this context.
Plaintiff’s counsel, an experienced litigator, also knows the best defence involves attacking your opponent for being rude, out of line and off point. Zibarras took great offence at the suggestions that his client was not acting in good faith – an issue that loomed large in the hearing in its Latin version, bona fides, which I’ll get back to. He referred several times to the “vilification” of the rights holder, going so far as to suggest that a) there was no evidence of improper conduct; b) our new copyright regime will not support huge damage claims; and c) the real problem isn’t settlements but the “massive” damages suffered by the film industry because of piracy.
None of these points made any appreciable difference to the underlying problem. Despite evidence collected by Canipre supporting the claims of infringement, cases of digital piracy leave no obvious smoking gun. Not only is the evidence intangible and full of pitfalls (like time stamps and clock drift), but mapping a numeric IP to a natural person, what the lawyers call us warm bodies, is notoriously difficult. Especially warm bodies who have actually committed an act of infringing.
The only ironclad way to establish in court whether a Jane Doe has personally infringed (as opposed to some interloper using the same ISP account) is to get her to testify. To do that, however, you need to get otherwise confidential contact information, and in so doing, you make what is tantamount to an accusation that may be entirely unfounded. You also expose that person to potentially harmful publicity and sometimes extortion at the hands of the complainant. That’s the crux of arguments made to the court by both CIPPIC and TekSavvy through counsel. And that’s why, for many of the alleged defendants (I assume), turning up in court would have been an admission of guilt.
2. Chicken/egg: establish case then get order, or vice versa?
Plaintiff’s counsel was first to address the court, in a mix of outline of the basic complaint and some updating. Aalto had already opened by complaining the case files were “in disarray” and needed to be re-checked. Throughout the arguments, His Honour kept asking pointed questions about the issues that had him most worried. Because Zibarras was first up, I took the line of questioning from the bench to indicate that the plaintiff’s chances of getting the order were slim.
CIPPIC and TekSavvy weren’t alone in worrying about the plaintiff’s motives – so was Aalto. And here’s where we come to a legal nicety that threaded through the entire day’s discussion: the burden on a plaintiff to show bona fides or present a bona fide claim, as opposed to establishing she has a prima facie case. For our lay purposes, we’ll say that, in legal usage, the former means the plaintiff or other party is acting in good faith, without frivolous or vexatious intent. For the latter, we’ll say the party has to show “first blush” evidence indicating it has a case worth the court’s time – even though counter-evidence or the need to satisfy further legal tests might later undermine the case.
The plaintiff’s interest is, of course, to have as low a threshold as possible in satisfying the court that the case should proceed. Ironically, that meant Zibarras had to set aside discussion of the evidence collected by Canipre, and talk instead about his client’s righteous intentions and all-round good behavior – a claim that flew in the face of all the contrary talk about Voltage’s alleged trolling and extorting activities. Within moments, Aalto pounced on Zibarras for suggesting the appropriate threshold in this case was “very low.” Aalto preferred to see the line coming somewhere between the low end, bona fides, and the higher end, making a prima facie case.
To no one’s surprise, the parties had lots to say about the significance of BMG Canada Inc. v. John Doe, the precedent-setting case from 2004-2005 in which the recording industry association CRIA tried to order disclosure of subscriber names from the five incumbent ISPs.
It’s not my job to spill yet more ink about this case, except to say both the Federal Court and Federal Court of Appeal found that the ISPs could not (at least in these circumstances) be compelled to divulge the names of their subscribers.
[Added June 27] The court made two findings of particular relevance in the Voltage suit. First, it established that the threshold for bringing an infringement case was relatively low. Thus, a plaintiff alleging its copyrighted work had been stolen could bring a case merely by showing it had a bona fide claim. Second, it established that, given a bona fide claim, the plaintiff could expect to have the names of suspected infringers disclosed. But it added an important qualifier to each of these assertions, qualifiers that fuelled much of the debate on Tuesday.
As to the threshold for bringing a case, the court had a caution about improper use by the plaintiff once in possession of the names at issue. I’m going to quote all of para 34 from the decision because it sheds light on why Zibarras argued so strenuously that all he needed to do to have the court issue an order was establish bona fides (the BMG decision is reproduced in the CIPPIC Intervention Record, Volume 3 – pdf available at the TekSavvy site):
“[para 34] In my view, it would make little sense to require proof of a prima facie case at the stage of the present proceeding. The appellants do not know the identity of the persons they wish to sue, let alone the details of precisely what was done by each of them such as to actually prove infringement. Such facts would only be established after examination for discovery and trial. The appellants would be effectively stripped of a remedy if the courts were to impose upon them, at this stage, the burden of showing a prima facie case. It is sufficient if they show a bona fide claim, i.e. that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons” (my emphasis).
The second qualifier is also problematic, as it touches on the conflict between the rights of an aggrieved copyright holder and the privacy rights of putative defendants, and in doing so leaves open for interpretation what constitutes “minimal” invasion of privacy:
[para 42] Thus, in my view, in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action. However, caution must be exercised by the courts in ordering such disclosure, to make sure that privacy rights are invaded in the most minimal way” (my emphasis).
Aalto, taking the strict view, declared he was bound by BMG and was not about to change the established rules. On the other hand, he did seem to allow that BMG left room for debate as to exactly how Voltage should be required to proceed in this particular case. That was not what Zibarras wanted to hear.
He thus reiterated several time that all he was bound to show, following BMG, was the plaintiff’s bona fides. As I suggested above, however, that topic put Zibarras in an awkward position, exacerbated by the back and forth between him and the bench, which felt at times like a bout of Whac-A-Mole. At one point, Aalto said part of the burden of the good faith test meant Zibarras would have to reveal to the court what his “litigation strategy” was going to be. The court would need to be satisfied that a) the plaintiff really intended to bring one or more actions in court; and b) the plaintiff would not use the TekSavvy information for any “improper purpose.”
So far, the “disarray” noted at the opening by Aalto only seemed to be getting worse – and we hadn’t even started to talk about the biggest rights and policy issue of all, privacy.