Firm seeks Customer information in Copyright Infringement Lawsuit

December 10, 2012

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Firm seeks Customer information in Copyright Infringement Lawsuit

Recently we sent out a communication to our customers with the intent to help them understand the Copyright Modernization Act and TekSavvy’s position on how we view our responsibility to our customers and our legal duties under both copyright and privacy laws. We received a tremendous response to that communication. Many have expressed questions and concerns about it.

We too are concerned.

Last week we received a motion from Voltage Pictures LLC, for customer information associated with a significant number of IP addresses. They advised us that they would be seeking a court order on December 17th.

First, we want you to know that we have not provided any information to Voltage. We would only do so under court order.

Secondly, if you are the subject of their request, earlier today, we sent out notices to those affected. We sent an email to the same address that you would normally receive your invoices from us. Please be sure to check your inbox.

Now, what is it that has us concerned?

We are frankly puzzled by the approach that Voltage has taken. It seems contrary to the government’s intent with copyright reform, which was to discourage file sharing lawsuits against individuals, while still protecting copyright holders’ rights. The manner and the timing of this action also seems unusual given that the government recently created a roadmap for addressing file sharing and copyright infringement within its legislation. Its starting point is a notification system to subscribers to discourage infringement without immediate threats of lawsuits or disclosure of their personal information. That system is not yet finalized though. In light of these factors, Voltage’s actions seem odd to us.

It appears to us that a notice period is essential, especially in cases where large privacy disclosures may be involved. Without this notice, a customer could be the subject of a lawsuit and not even know about it. Surely this is in part why the government is seeking to enact such notice provisions in the policy.

At this point there are many unanswered questions. How does Voltage intend to proceed? How will the courts rule if customers should retain legal counsel? Under what conditions might the court order the disclosure of customer information? If Voltage is successful, how many more notices will Canadian ISPs receive? Is there a limit to what the court will allow?

And likely the biggest question: What liability could a customer face? From all that I’ve read, non-commercial infringement carries a damage award as low as $100 and as high as $5000 for all infringements. It also appears that the intent is to keep damage awards low in such cases. Experts that have written on the topic note that - the law now says that in the case of infringements for non-commercial purposes, there is a need for an award to be proportionate to the infringements, with consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff. They go on to point out that - the government provided assurances during the copyright reform process that "Canadians will not face disproportionate penalties for minor infringements of copyright." Of course, we have no way of knowing what the courts will actually do in specific situations.

TekSavvy wants to protect its customers’ privacy rights and rights to be notified of lawsuits that could affect them. At the same time, we must abide by the legal process. Through all of this you can be sure of our commitment to our customers.

We will:

1) Continue to be as transparent as possible, and inform you when developments happen.

2) Notify you as soon as possible should we receive a request for customer personal information.

3) We will not provide your personal information to any third parties unless required by a court order.

What exactly have we been served with to date?

There are currently two legal documents that are publicly available. Those are the Statement of Claim dated November 14th, which is a general submission to the court outlining the claims against as yet unknown defendants. TekSavvy has not been formally served with this document since we are not a defendant in the case, but we obtained a copy from the Court as we were interested in it and felt that you might be too. The second is a Notice of Motion which serves as TekSavvy’s notice that some of our customers’ names and contact information are being requested by way of a motion to the Federal Court of Canada so that Voltage can pursue its claims against them. The Notice of Motion was served on us on December 7th. TekSavvy had previously been provided with a file of IP addresses in November. Due to the large number of IPs involved and inaccurate data in the file that had to be clarified with Voltage, it has taken a significant amount of time to get to the point where we could identify the customers affected by the Notice of Motion in order to be able to advise them of the upcoming motion.

What makes this case different?

The sheer volume of copyright infringement claims that Voltage is pursuing against individuals at one time is what’s different in this case. The file provided by Voltage contains a couple thousand of IP addresses, which we will not be making public for obvious reasons. This very large volume has posed many challenges for us as we have tried to determine which of our customers could be affected and how to give them notice in the most efficient and timeliest manner possible. It will also likely pose challenges for the court dealing with the claims as it decides of how to deal with both the provision of notice of the claims to potential defendants and the processing of the actual claims of infringement. We are unable to find any similar case of this scale. Consequently, we have retained legal counsel to help us through this process to advise us on our rights and obligations as an ISP, so that we can apply our own judgement to the situation in an appropriate manner. This case may well help determine how other such future cases are handled.

If you are targeted in one of these actions, we urge you to seek your own legal advice. That is your choice and responsibility. We need you to understand that we are unable to assist you legally.

There are so many unknowns about this that I urge you to become familiar with copyright reform so that you know your rights under the law and you can respond appropriately. Know that TekSavvy is not taking this lightly as it affects us too and as always, we believe that making your voice heard is a key component to a healthy internet in Canada. I will be monitoring this situation very closely. Please visit again as we will continue to post updates as things progress.

Marc – CEO/TekSavvy

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