TekSavvy customers illegal downloading copyright

TekSavvy illegal downloading: Judge awards more time to warn clients

Hundreds of Ontario Internet subscribers could soon face the choice of bowing to the settlement demands of a California film studio or incurring expensive legal fees for a court battle.

In its lawsuit, Los Angeles-based Voltage Pictures LLC, best known for The Hurt Locker movie, is seeking damages related to alleged copyright infringement by hundreds of Jane and John Does, who it says were involved in unauthorized copying and distributing of its movies.

    The customers are faced with a terrible dilemma of either paying the settlement demand or risking being sued and incurring the legal cost of fighting

The gatekeeper in the case is TekSavvy Solutions Inc., an Internet service provider based in Chatham, Ont., that stands between Voltage and the identity of customers alleged to have downloaded its content illegally using BitTorrent networks.

At a hearing in Toronto Monday, a Federal Court judge gave TekSavvy, which is not a party to the action, more time to advise the subscribers affected that they could be implicated in the case and should seek legal advice.

Voltage’s motion to compel TekSavvy to hand over the identities is set to be heard Jan. 14 and the ISP said as long as it can provide its customers with adequate notice, it will not oppose the motion.

“Voltage will then take that information and contact those customers and say, ‘We’ve sued you. We’re going to demand a certain amount of money to settle this lawsuit, and if you don’t, then we’re going to go to court,’ ” intellectual property lawyer David Fewer said in an interview.

    TekSavvy under pressure to reveal user details as L.A. film studio launches copyright suit
    ‘The door is closing’: Company starts collecting data on illegal downloaders in Canada

Mr. Fewer is the director of the Canadian Internet Policy and Public Interest Clinic, which filed a letter with the court saying it will seek intervener status in the case.

“The customers are faced with a terrible dilemma of either paying the settlement demand or risking being sued and incurring the legal cost of fighting,” he said. “For people who like certainty and don’t like stress and figure it’s going to cost them one way or the other, Voltage is betting that the easy way out is to pay the settlement fee.”

Through a forensic software investigation conducted by Montreal-based Canipre Inc. over two months from Sept. 1 to Oct. 30, Voltage says it singled out BitTorrent transactions related to its copyrighted works associated with more than 2,000 Internet protocol addresses belonging to TekSavvy customers.

TekSavvy said last week it sent out about 1,100 warning notices as some customers had more than one IP address associated with their account.

In court Monday, Nicholas McHaffie, a lawyer for the ISP, said the company had tried to ensure all customers associated with those IP addresses were alerted to their potential involvement in the court case.

However, through error, about 40 clients who were not customers at the time were contacted and about 90 others who should have been contacted were not.

Mr. Justice John O’Keefe of the Federal Court of Canada agreed that the errors and the fact that the motion deals with new issues in Canada warranted an adjournment.

James Zibarras, a lawyer for Voltage, opposed the delay, arguing that TekSavvy had known about the issues since Nov. 1, although the motion to compel the disclosure of its customers’ details was not filed with the court until Dec. 7 and it was after that time that TekSavvy began notifying customers.

Mr. Zibarras said the independent ISP was concerned about its reputation and the notice to customers was “purely a PR initiative that we consented to,” a point Mr. McHaffie disputed, arguing that the court runs on the notion that people affected by a case receive notice. “[It was] not a PR exercise,” he said.

“Our primary concern is to make sure that nobody gets caught in the crosshairs who may quite literally not be involved at all,” Marc Gaudrault, chief executive of TekSavvy, added outside the court. “If, at the end of the day it turns out that what they’re alleging is actually what happened, the law is the law, we can’t say, ‘Do unlawful things.’ ”

Ottawa recently overhauled the copyright legislation and the Copyright Modernization Act, once known as Bill C-11, received royal assent in June and most of its provisions came into force on Nov. 7.

The new law provides for a penalty from $100 to a maximum of $5,000 for all infringements related to personal use that occurred prior to a legal action. Under the old rules, the maximum fine was $20,000 per infringement, which remains the case for violations for commercial use.

Voltage is likely to send letters to the individuals involved asking they pay an amount akin to what could be awarded by way of statutory damages or face proceeding to court.

Mr. Fewer said the appropriate amount of damages is more like the cost of “an iTunes rental or at most the purchase of a DVD…. But if you even want to argue the damages you still have to hire a lawyer and go to court and deal with all that.”

Voltage has filed similar lawsuits in the past targeting thousands of U.S. Internet users it believed illegally downloaded The Hurt Locker and even a B.C. action in 2011 aimed at extracting the identities of dozens of users.

Last month a Federal Court judge in Montreal ordered Internet providers to turn over the names and addresses associated with about 50 IP addresses in a case brought by NGN Prima Productions Inc., which, like Voltage, also used Canipre as its forensic investigation firm.

But the TekSavvy case appears to set a Canadian precedent in terms of the number of users implicated.

Mr. Fewer said such cases, which rarely if ever end up in court after the identities are disclosed, are a means of generating revenue for films that didn’t earn much at the box office. “It’s not a legitimate business model. It’s a misuse of copyright and a misuse of the courts,” he said.

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