Teksavvy Wins Appeal in Defense of Accused ‘Pirating’ Subscribers

Over the past several years, hundreds of thousands of piracy warnings have been sent out to Canadian pirates under the ‘notice-and-notice’ scheme.

While these notices can no longer include settlement demands, following a recent update in legislation, accused pirates can still get in trouble. Several movie companies have filed for Norwich orders, asking the court to subpoena ISPs to hand over customer information, so they can contact these people directly.

These cases lead to the so-called ‘copyright trolling’ practices we’re seeing elsewhere in the world. They are filed by rightsholders of films such as The Hitman’s Bodyguard, Criminal, London Has Fallen, and Dallas Buyers Club. And with hundreds of IP-addresses being targeted per case, their scope is quite broad.

Most ISPs don’t challenge these subpoena requests but in a recent case Internet provider Teksavvy decided to take a stand. When ME2 Productions, the company behind the film Mechanic: Resurrection, requested the personal details of several customers, the ISP decided to appeal.

Among other things, TekSavvy argued that the evidence provided by the copyright holder is not sufficient enough to warrant handing over customer information.

Last week the Federal Court of Canada sided with the Internet provider.  Judge William Pentney concluded that the evidence put forward by the movie company was not sufficient. This is problematic, as it could result in the wrong persons being targeted, he concluded.

“This case illustrates why it is so important for the Court to have the best available evidence,” Judge Pentney writes.

For example, unlike the movie company claimed, it appeared that several of the targeted subscribers never received an initial notice of copyright infringement, which is a requirement in these cases.

“One can easily imagine the reaction of such individuals when this is the first notice they would have received of the matter. This is precisely what Parliament was seeking to avoid when it adopted the notice and notice regime in the Act,” the order reads.

Perhaps even worse, one of the IP-addresses that was listed didn’t even belong to TekSavvy. These and other issues make it clear that subpoenas should only be issued when there’s sufficient evidence.

James Plotkin of law firm CazaSaikaley, who has defended accused file-sharers in the past, notes that this is an important ruling.

“The Federal Court sent a strong message that copyright plaintiffs must put forward ‘the best available evidence’ in order to obtain a Norwich order, or otherwise explain why that evidence is unavailable,” Plotkin says.

Among the issues highlighted in the order is the declaration of Daniel Arheidt, who works for the German BitTorrent tracking outfit Maverickeye. His evidence is at the basis of the clerk’s affidavit, but it’s not a sworn statement, and nor is Mr. Arheidt available for cross-examination.

The court also highlighted the privacy aspect of this case. Specifically, the order states that ISPs have a legal obligation to protect the privacy of their customers. While most ISPs chose not to appeal the order, TekSavvy certainly has an interest in doing so.

“TekSavvy is in possession of the personal information of its customers. It has a legal obligation to protect such information and an obvious commercial interest in doing so,” Judge Pentney noted.

This important angle was also raised by Plotkin, who noted that because the accused file-sharers are no party at this stage, their ISPs are the only ones who can protect them.

“The subscribers are not parties to the motion, so they have no say in whether the Norwich order that would force disclosure of their information should issue. The ISPs are the only ones able to look after their subscribers’ interests,” Plotkin says.

In the present case, the court found that several mistakes were made. If TekSavvy didn’t stand up for its customers, the privacy of these people would have been at stake.

“Mistakes like this can result in violations of privacy on the basis of erroneous information furnished to the court by the plaintiff. This might be accidental and not malicious,” Plotkin says.

“But regardless of intent, the court should not countenance corner-cutting by plaintiffs when the privacy interests of subscribers, who are without a voice in the proceeding, are at stake.”

TekSavvy did not immediately reply to our request for comment (see update below). In a statement to The Wire Report, the ISP’s vice-president of regulatory affairs, Andy Kaplan-Myrth, said that they are pleased with the decision which confirms that copyright enforcement requires a balance of disclosure and privacy interests.

The Federal Court order is by no means the end of these type of cases. Movie companies and other copyright holders can still request Norwich orders going forward. However, they will have to make sure that they base their requests on the best available evidence.

Update: Shortly after publication, we received the following comments from TekSavvy’s Andy Kaplan-Myrth.

“TekSavvy works hard to protect our customers privacy rights. While we acknowledge that we have a role to play in copyright enforcement, we also have a responsibility to make sure that the privacy interests of our customers are respected. That is especially true in a proceeding like this one where the individuals themselves are not aware of the proceeding until it may be too late. In this case, we reviewed the evidence that the movie studios were relying on to get us to identify our customers, and we didn’t think it came up to the required standard. With this decision, the court agreed with us.”

“This decision builds on a line of earlier decisions that copyright enforcement requires a balancing of interests, in this case balancing the business interest for disclosure against the privacy concerns of subscribers. In this decision, the court outlines the type of evidence that should normally be provided for a Norwich order, and we expect courts and other ISPs to join us in holding plaintiffs to those obligations in the future to protect consumers.”

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