Arrrgh, there be pirates in Canada, and you may even know them, Part 2 in a _-part series

Another week, another notice from another ISP forwarded to your intrepid blogger for his usual insightful analysis snark. But this one’s even more fun, because it’s already found its way into the courts this week. Let’s dive in to the tale of a third-rate Hollywood movie company intent on suing everyone, everyone’s favourite Canadian ISP TekSavvy, and my secret spy friend, WHO’S TOTALLY INNOCENT. I want to make that clear.

So we called my last friend Mr. X, but since we may be doing a lot of these we’re going to need better names or we’ll run out of letters. So let’s call this week’s subject Joey JoJo Junior Shabadoo. Joey JoJo is a TekSavvy customer, and just received an email from them about a pending lawsuit. Unlike with Mr. X, this letter does not accuse Joey JoJo of anything, it’s really just informational. Let’s dive in.

Dear Customer,

TekSavvy recently sent out a communication to some of our customers on the request for personal information from Voltage Pictures LLC.

Voltage Pictures! Developers of such fine films as Ball$ to the Wall. You may remember them from such famous lawsuits as The Hurt Locker case, when they went after about 25,000 people who downloaded that movie via BitTorrent. There was also a Canadian version of that case, and yours truly wrote about it in our first substantive post on this blog. While the lawsuit was eventually abandoned, what’s important about it is that a judge ordered that several ISPs attach customer information to the IP addresses that had been identified as the downloaders. That is a very important precedent in Canadian law, and one that will surely come into play in the lawsuit at issue today.

We have set up a notification system in the customer portal to let our customers know if they were on the list. Please visit the My World on the TekSavvy website to verify this information.  If your IP address is on the list, please email [email protected] for a copy of your email, with full details.

I love this. TekSavvy is like, “meh, you might want to check if you’re being sued.” The earlier communication from TekSavvy stated what was going on:

We write to inform you that TekSavvy has received a court motion from Voltage Pictures LLC that may result in disclosure of your name and contact information.

I’m really not so sure about the “may result”. I would have gone with “most probably absolutely will result given the holding in the Hurt Locker case”, but then again, I’m cynical.

The following link leads to updated documentation called the “Motion Record” received December 11th, 2012. The Motion Record contains the evidence and argument that Voltage will be relying on for its motion scheduled to be heard as early as 9:30 AM on Monday, December 17, 2012 at Federal Court of Canada

The motion was in fact presented in Court on Monday. However, the hearing was postponed by the judge until January 14th, as TekSavvy successfully argued it did not have sufficient time to alert its customers they may be involved in the lawsuit. Here’s the “Motion Record” they refer to (big-ass mofo PDF), which I urge you not to read. It’s standard stuff, outlining that Voltage hired a firm to track Torrenters of their films, the firm found the IP addresses attached to TekSavvy, and Voltage wants the Court to order TekSavvy to attach customer information to those IP addresses so they can be sued. According to this TekSavvy blog post, there are actually “a couple thousand” IP addresses involved. Yikes.

Unlike the Hurt Locker case which was just about one movie, here Voltage has identified a whole bunch of movies that were downloaded. You can see them all on page 29 of that PDF. They include such luminous titles as Generation Um…, Maximum Conviction, and the aforementioned Balls to the Wall. What kind of crap are you people downloading?

At TekSavvy, we take pride in our dedication to our customers.  We listen to our customers and try to respect their needs. We have always fought for our customers’ rights and we take their privacy seriously.

This is why we should all be using TekSavvy. They really are different.

At the same time, rights holders are entitled to enforce their rights under the Copyright Act. TekSavvy therefore encourages everyone to become familiar with their rights and obligations under copyright law.

Hmm, maybe not.

You should know that TekSavvy does not monitor our customers’ use of the Internet and has no involvement in collecting the IPs presented in this request by Voltage.  We are also not in a position to speculate on the validity of the claims, nor contest the request for information.

And we are covering our own asses. Check out that bolded part, it’s a doozy. Basically TekSavvy won’t fight to protect its customer information. They know the Canadian Hurt Locker decision. It sure makes their use of the phrase “may result” I snarked on above kind of a joke. I’d say “we’ll see how this plays out January 14th”, but I am 100% (well ok, 99.99%) sure the court will just order TekSavvy to turn over the information.

Super happy fun-time analysis hour!

What seems obvious to me about this new effort by Voltage is that it’s clearly designed to test out the new updated Copyright Act. The Motion Record refers to section 38.1 of the Copyright Act, which was part of the recently come-into-force Copyright Modernization Act you should know about by now. Interestingly, section 38.1 is where you find the limits on damages for copyright infringement ($100 to $5000 for individuals doing non-commercial infringing). So I guess those limits were not a bar to copyright owners suing after all.

What’s also interesting is that the Copyright Modernization Act has a notice and notice regime (which I’ve written about) that would make it absolutely required for an ISP to forward an infringement notice they received from a copyright holder to their customer. But those provisions are not yet in force. It’s surprising that Voltage would not wait for those provisions to be in force, as it would make their job suing people much easier. But I guess they want their money now.

As for TekSavvy choosing not to fight the request for customer information, I will leave it to TekSavvy customers to decide what they think of that. A just-published HuffPo editorial takes them to task a little bit for it. But I don’t think TekSavvy really has much choice to be honest. And at least they are generally open and transparent with their customers about it, unlike your average ISP.

Finally, as per the regulations of the Montreal-based Bloggers Collective, I am required to post the video below whenever TekSavvy is mentioned in a post. Happy Holidays everyone.