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Canadian ISP Fights Back Against Copyright Trolls 66

Posted by timothy
from the you-and-what-army dept.
An anonymous reader writes "Distributel, an independent Canadian ISP, has fought back in a file sharing lawsuit by opposing a motion to disclose the names of subscribers alleged to have engaged in file sharing. The company did not oppose a similar request in November 2012, but says in court documents filed on Friday that several factors led to a change in position after it received another request for more names. Those concerns include evidence of copyright trolling, privacy issues, and weak evidence of actual infringement by its subscribers. The decision to fight back points to mounting ISP frustration in Canada with file sharing lawsuits that come after the Canadian government sent clear signals that such actions were unwelcome."
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Canadian ISP Fights Back Against Copyright Trolls

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  • by eksith (2776419) on Saturday February 09, 2013 @06:10PM (#42846459) Homepage

    From part 11 of the "Statement of faccts" in that motion :

    An IP address does not identify a specific individual or even a specific computer. As such, it is not analogous to a driver's license, a Social Insurance Number, or a fingerprint. On the contrary, an IP address can be used as a shared component to access the internet for multiple users. For example, it may be used to create a wireless network shared by multiple persons in a household, or in an office local area network, or an Internet coffee shop.

    Now I've seen many of the summaries for a lot of these motions (not one against them 'till now, since most ISPs offer resistance with a wimper) and not once have I seen an ISP actually explain what an IP is with layman-friendly clarity and how fickle a method of identifying a user it is. If this is how everyone treats IP addresses, there really wouldn't be any standing for disclosure of personally identifying information on any user unless law enforcement is already conducting surveillance on that IP.

    But that's not what happened here.

    They (copyright/troll folks) basically used a piece of software that flagged (apparently) content matching some signature of theirs to a bunch of addresses with no corroborating evidence like which P2P network was being used, if that, pseudonyms (although, I was under the impression most networks don't require them now), protocols or anything remotely grounding their assertion that their copyright was violated.

    This is basically a fishing exepedition and this time, the ISP called on it. I don't know what they're normally like or if they offered resistance like this in the past. TFA says they didn't fight a notice back in November 2012. But these guys asking for subscriber info has no standing at all. Kudos to them for standing up to this!

    • by eksith (2776419)
      Oops, "facts". That spelling issue again.
      • Oops, "facts". That spelling issue again.

        It's okay, the copyright troll referenced in this article seems to lack an understanding of them as well.

        • Oops, "facts". That spelling issue again.

          It's okay, the copyright troll referenced in this article seems to lack an understanding of them as well.

          ZING!!

    • not once have I seen an ISP actually explain what an IP is with layman-friendly clarity and how fickle a method of identifying a user it is

      I agree - we often hear what it isn't, but never what it is. How about this? An IP address is like a street name. Just because someone on Main Street has done something suspicious, it doesn't mean everyone on Main Street is to blame.

    • by Elbereth (58257)

      But Slashdot bans people based on IP address. Does that mean that Slashdot itself is ignorant?

      • Yes. The solution would be much better addressed by a micro-payment for new accounts rendered in computational protein folding.

      • But Slashdot bans people based on IP address.

        They do? You sure wouldn't know it by seeing all the spammers clogging the journal system.

    • Moreover, bit rot caused by heat and intergalactic cosmic radiation have been shown to mis-route internet communication. Domain names are slightly more resistant to this effect which can only be mitigated by world-wide adoption of ECC RAM, since affected they appear to be misspelled. However when am IP addresses is affected there is no outward tell.

      You can reliably say that the force of the inherit cosmos ensures plausible deniability in the digital age, and that by extension anonymity is a force of nature.

  • extortion? (Score:5, Interesting)

    by zentigger (203922) on Saturday February 09, 2013 @06:17PM (#42846509) Homepage

    FTFA:
    a notice claiming that subscribers could face up to $20,000 in damages

    Considering the law now features a cap of $5,000 for non-commercial statutory damages would this not count as extortion?

    • Re:extortion? (Score:5, Interesting)

      by MightyMartian (840721) on Saturday February 09, 2013 @06:42PM (#42846667) Journal

      It's a $20,000 ceiling for commercial infringement and $5,000 for personal. Does this mean that the entertainment industry is going to claim all infringement in Canada is commercial?

      Here's my tip folks. If you get a letter that claims you could be on the hook for up to $20k, retain a lawyer. Might cost you a few hundred bucks, but with these companies now prepared to jump to commercial claims, I imagine they'll be prepared to walk away from any defendant who retains a lawyer.

      Perhaps interested Canadians should band together to create a legal fund to fight such civil suits.

      • by Kjella (173770)

        It's a $20,000 ceiling for commercial infringement and $5,000 for personal. Does this mean that the entertainment industry is going to claim all infringement in Canada is commercial?

        It means that until they've conclusively decided it's not commercial - which they won't until they're at trial looking at what they can actually prove so they're technically not lying - they're going to say up to $20k because it's a much bigger, scarier number. Besides, it could theoretically limit their options later and lawyers never give an inch without good reason. Just like in the US they sue for $150k/work, not because they'll actually get that but because that's the upper statutory limit.

        • by Anonymous Coward

          Except that in Canadian cases the judges get pissed when lawyers level a blanket accusation of commercial infringement across the board at a collection of IP addresses. The judges are likely to decide that motions for your side should be denied where possible because you are obviously seeking profit through extortion, something they don't see as a proper use of the court system.

          Judges in Canada are not elected, as well as being well paid government employees who are intentionally held seperate from the poli

      • by Anonymous Coward

        No, don't feed the lawyers, I am one, but you do not need a law licence to reply "Go piss up a rope, I will defend and take costs in cause"

        MFG, omv

    • by epp_b (944299)

      Extortion, harassment, intimidation, racketeering, predatory litigation ... take your pick. I'm sure they're are several more I've forgotten.

    • It's even more sleazy and disreputable than that (which is one of the reasons this troll is likely to lose). The letter said "Law A allows up to $20K in damages" and then a little while on, it said "In addition, Law B allows up to $5K in damages". The clear implication is the recipient could be on the hook for twenty-five grand.

      The bit they forgot to mention? Law B was actually a modification to law A, reducing the maximum damage award from $20K to $5K. The motion calls this "a clear misrepresentation
    • I would imagine it would be up to the prosecution to prove that the defendant was a commercial concern. Most defendants could bring a preponderance of evidence that they are not (no commercial tax ID registered in their name, residential internet connection, etc).
  • by BlueStrat (756137) on Saturday February 09, 2013 @06:47PM (#42846687)

    The decision to fight back points to mounting ISP frustration in Canada with file sharing lawsuits that come after the Canadian government sent clear signals that such actions were unwelcome."

    Umm...*whose* actions, exactly? The ISPs? The lawsuit-bringers? The file-sharers? All of the above?

    I'm not usually one to harp on poorly-written submissions, but this confuses a major component of the story, at least for those unfamiliar with the current details of domestic Canadian politics.

    I don't blame the submitter, however.

    I blame Canada! :-P

    Strat

    • Re:Umm... (Score:4, Informative)

      by green1 (322787) on Saturday February 09, 2013 @07:39PM (#42847001)

      I found the summary easy enough to understand, though that's perhaps due to my knowledge of the current stare of copyright in Canada.
      Basically when the last copyright bill was shovelled through parliament the government promised that it wouldn't lead to individuals being charged for private infringement. To try to guarantee that they put in place a cap of a maximum of $5,000 for ALL past infringements combined making the act of sending a lawyer after someone potentially more expensive then you could possibly recoup in court. (Also note that is a maximum, and the minimum is substantially less. The court is unlikely to award everyone the maximum penalty as that wouldn't differentiate between someone copying a few movies, and copying every movie ever made)

  • by CastrTroy (595695) on Saturday February 09, 2013 @07:40PM (#42847011) Homepage
    It's odd, but they only seem to be targeting the small ISPs. First Teksavvy, and now Distributel. It's odd that they aren't going after Bell or Rogers. Either they figure the little guys won't have the money to hire lawyers to fight (Teksavvy didn't) or there's something more nefarious going on. My theory is that they are in kahootz with the big ISPs who paid them off to either keep quiet, or payed them off to go after the little guys to scare people away from using smaller ISPs.
    • by Mashiki (184564) <mashiki&gmail,com> on Saturday February 09, 2013 @07:43PM (#42847031) Homepage

      It's odd that they aren't going after Bell or Rogers.

      Rogers and Bell are "content producers."

    • Re: (Score:3, Interesting)

      by ruir (2709173)
      Nah, they are building an war chest, and create critical mass volume and precedents on law to go after some bigger fish. However, they dont want to mess with people with vast resources, that have more to gain taking them to court then settling.
    • by Cassini2 (956052)

      Roger's has officially rolled over and plays ball with the troll's. They have a system where they will automatically forward a legal letter or something.

      • Roger's has officially rolled over and plays ball with the troll's. They have a system where they will automatically forward a legal letter or something.

        Scurrilous behaviour, and I'd be changing ISPs if I were a Rogers customer and had confirmation of this. Not that I infringe; I just think it's no part of an ISPs business to actively aid and abet in the extortion of its own customers. Of course, Rogers has never sided with its own customers.

      • by rikkards (98006)

        No they send you an email and that's it. I have received three and am still with them. It's literally the minimum any company can do to ensure that they don't get wrapped in to this.

        Rogers and Bell have not played ball with any of these situations. Them as well as Videotron were asked to provide names with the whole Hurt Locker fiasco and only Videotron obliged. Rogers and Bell told them to get a warrant otherwise go and take a hike. Hell I downloaded Hurt Locker to see what all the hoopla was. Didn't get a

    • No. In Australia, they tried suing a big ISP (Third Largest) that has an antipiracy policy (If you report piracy to us, we will hand the information on to the police) and found themselves in the highest court in the land being told that to get the information they were demanding, it would cost them $200 per user. Also, that this information must be sought in a timely manner or they would have to pony up for the ISP to cache the logs and traffic streams.

      ISP smiled sweetly with it's hand out and racketeer

  • File sharing should occur over a secure connection, such as SSH. End of story.
  • by Svet Ivanov (2837497) on Sunday February 10, 2013 @10:08AM (#42850041)
    Some things to consider in Canada:

    First, in general, the losing party pays legal costs of the successful party. The amount is usually from 50% to 60% of what the successful party should have paid its lawyers.

    Second, foreing plaintiffs may be required to post “security for costs” before they proceed with an action. This is to protect the costs of a successful defendant.

    Third, courts are ill-equipped to deal with multiple defendants, especially if there is a likelihood that they may be self-represented. It is diifuclt to see how a court would allow a lawsuit against hundreds of unrelated defendants identified only by IP addresses obtained by a third party (an ISP).

    With the new changes in the copyright law, it only takes one case of non-commerical infringement to set damages at $100 for the whole “trolling” enterprise to be a questionable proposition. On the other hand, if the target defendant collecting on judgments in Canada is usually difficult and expensive unless the debtor has real estate. So all that makes the Canadian legal landscape somewhat inhospitable for US-style litigation.

    In Distributel's case, it looks like this is the second motion they were served with. They did not oppose the first one and it looks like as a result of the first disclosure, only threatening demand letters were sent. There were no actions before the courts.

    Following this case and the Voltage vs. Does case (involving the ISP Teksavvy), reminds me of the UK case of the ACS Law firm (http://en.wikipedia.org/wiki/ACS:Law) where the lawyers set up loval shell corporations to own the rights (to avoid security for costs likely) and then send around 40,000 misleading letters to customers identified by IP addresses from ISPs not opposing motions for disclosure. The firm collected about a million pounds in several years. The lawyer behind it was eventually suspended because of the misleading demand letters and it seems his case killed any future litigation in the immidiate future. It remans to be seen whether this will play out in Canada.

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