Canadian ISP forced to disclose “illegal” downloaders’ details


A Canadian court has ordered Internet service provider (ISP) TekSavvy to hand over personal details of nearly 2,000 alleged illegal downloaders.

Film producer Voltage Pictures accused the TekSavvy subscribers of infringing its copyright, and demanded information including telephone numbers and email addresses.

Canada’s Federal Court, in a ruling on February 20, told TekSavvy to disclose these numbers and addresses but attached a number of conditions to this process.

First, the court must approve all Voltage’s communications with the 2,000 subscribers. And any letters sent to subscribers must “clearly state in bold type” that the Internet users haven’t yet been found guilty of infringement or are liable for paying damages.

As a result, said TekSavvy, the ruling provides a “positive new consumer rights framework” for copyright holders seeking personal information about ISPs’ customers.

“We are pleased with these new safeguards,” said Marc Gaudrault, TekSavvy chief executive. “Until the conditions of the order are fully met we will not release customer information. TekSavvy will maintain a role in the court process moving forward to ensure that our customers’ rights continue to be at the forefront of these proceedings.”

James Zibarras, managing partner at Brauti Thorning Zibarras LLP, who acted for Voltage, said the decision is “very important” for all content creators.

“The Federal Court has clearly stated that it will not allow people who steal copyrighted digital content to hide behind the anonymity of their IP addresses. ISPs, such as Teksavvy, will in the appropriate circumstances be ordered to provide the names and addresses associated with IP addresses that have engaged in illegal downloading. That information will then be used to commence proceedings against those individuals.”

He added: “The Federal Court's decision will likely be a call to action for the entire film and music industry whose content is illegally downloaded by millions of people daily. The Federal Court has agreed that privacy concerns must yield in circumstances where infringement threatens to erode long established intellectual property rights, and people who take what doesn't belong to them without paying for it will be identified.”

The prothonotary (judge), Kevin Aalto, has been pragmatic and found a “real world approach to the ISP issue”, said Nathaniel Lipkus, a lawyer at Gilbert’s LLP in Toronto.

“Everything the rights owners do has to be approved by the court. If anything smells of opportunism or extortion then the judge won’t approve it. Right now they’re being told to tread lightly and the court is trying to keep them on a tight leash.”

With both sides claiming victory, Lipkus said it is unclear at the moment who wins from this decision.

“The way the court administrates the demand letter process will be very important, because if the letters are still toothless and an amount of money can’t be sought that is reasonable in the letter, then companies may say ‘why am I negotiating for a few hundred dollars with court supervision’. But if the court recognises that there needs to be some economies of scale, it could be really effective.

“It’s going to be really hard to strike the balance,” he said.

The decision is known as interlocutory – the lowest type of precedential ruling in Canada – and can be appealed.

US-based Voltage Pictures has made films such as Dallas Buyers Club and The Hurt Locker.

This article was first published on 24 February 2014 in World IP Review

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