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AkFubar
Admittedly, A Teksavvy Fan

join:2005-02-28
Toronto CAN.
Reviews:
·TekSavvy DSL
reply to Bhruic

Re: Why we are not opposing motion on Monday.

said by Bhruic:

It's being discussed in this thread: »Lawsuit is bigger than you think IMO

Thanks
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If my online experience is enhanced, why are my speeds throttled?? BHell... A Public Futility.


AkFubar
Admittedly, A Teksavvy Fan

join:2005-02-28
Toronto CAN.
Reviews:
·TekSavvy DSL
reply to TSI Marc
So it appears that the judge may indeed grant disclosure based on the previous "Recoil" movie case. However since that was a first (breaking new ground for us in Canada) perhaps not all arguments for privacy may have been made to the court before the decision. We are on familiar ground this time around. CIPPIC is trying to intervene and some of the informed IP owners may also decide to challenge disclosure. It will be interesting to see what transpires on Monday. It only take one objector with a valid point to kill disclosure but it has to be good as the judge will probably side with copyright infringement over privacy concerns. I would not say that it is a done deal yet tho.
--
If my online experience is enhanced, why are my speeds throttled?? BHell... A Public Futility.

activoice

join:2008-02-10
York, ON
reply to TSI Marc
Something I was wondering about... I am wondering if one of the customers who was identified runs something like a coffee shop. If a coffee shop is offering open WIFI and someone in the coffee shop was connected to the tracker at some point doesn't that mean the coffee shop owner is on the hook for this??

In the case of something like a coffee shop,or public spaces like malls and airports would they be deemed not liable, similar to how an ISP is not liable??


AkFubar
Admittedly, A Teksavvy Fan

join:2005-02-28
Toronto CAN.
Reviews:
·TekSavvy DSL
reply to TSI Marc
That's a good question. I'm not a lawyer but I can't see how an open wifi network can hold the owner responsible. There is just no fair or reasonable way to police it.
--
If my online experience is enhanced, why are my speeds throttled?? BHell... A Public Futility.

Grappler

join:2002-09-01
Ottawa, ON
reply to Rastan
This is a matter for the Federal Courts, at this time. I believe that the Plaintiff can chose to proceed via Small Claims but they will then be restricting themselves to that court, reduced fees, etc. and there is no guarantee that they can do the same across Canada.

The Defendant cannot chose to have the matter heard in Small Claims.

Now to add to "Marc's Defence": it was stated that Marc made an "agreement" to allow TSI to notify their clients first. As has been stated this procedure will hopefully be enacted in the new year. It is very likely that the Plaintiff chose to proceed NOW in order to not have to follow the new upcoming procedure, Marc and TSI did the right thing, knowing that present case law was in favour of the plaintiff.

JonyBelGeul
Premium
join:2008-07-31
reply to MaynardKrebs
said by MaynardKrebs:

said by UK_Dave:

I'm not named in this, and I never will be unless by error.

But *when* you are named in error someday, how are you going to *prove* it wasn't you?

Burden of proof lies with the accuser, not the accused.
--
My blog. Wanna Git My Ball on Blogspot.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL

4 edits
reply to MaynardKrebs
But *when* you are named in error someday, how are you going to *prove* it wasn't you?
-----------------------------

Hi MK.

Just to clarify, I'm not in the "tough, suck it up, it won't happen to me camp". That quote suggests otherwise, and I'm hoping the effort I've put into this issue over the last few days speaks otherwise....

But to answer your question:

1. I would say I operate an open WIFI. Despite what a few have claimed, I can confirm there is no automatic vicarious liability in that case. It is legal to do so, and just like an ISP with no logs, there are no charges of "aiding and abetting".

2. I would also gather sworn statements from all the various people who come here and use my WIFI. Friends of the kids, business associates who have used my WIFI without supervision.

3. I would offer to the court a sworn, signed statement that I have never knowingly installed any P2P software on any device owned by me. I would offer the fact that I can not say the same for any other person using my WIFI, but neither am I required to know.

4. I would remind the court that it is not required of ME to keep logs to identify users of my network.

5. I would remind the court that the prosecution cannot identify ME from those IP records - and ask in open court for clarification from the prosecution as to what the computer name, or MAC address, of the offending device was to allow me to further investigate which of the 30+ devices it may have been.

Of course, it may still go against me - in a civil case we have accept it is about a judge making a call - but it would be a test case on vicarious liability in Canada. It would take a long time. It would involve huge referals and postponements. Others with more clout than me would then be fighting this case.

Just like fitting a car alarm doesnt make your car un-stealable, it just makes the next guys car more attractive.

That's how I would do it if I were wrongly accused, personally.

Cheers
Dave

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
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reply to AkFubar
That's a good question. I'm not a lawyer but I can't see how an open wifi network can hold the owner responsible. There is just no fair or reasonable way to police it.
---------------------

I can confirm that no law exists currently on the subject.

There is no general vicarious liability other than in the terms of conditions with your ISP regarding financial liability for overages.

It is ripe for a test case I believe.


drjp81

join:2006-01-09
canada
UK_DAVE is on fire!

Awesome job man. With all the routers out there with the WPS flaw, I'd simply point out to the fact that even if I reasonably try to secure my router, this flaw in the construction basically allows anyone with a PC to gain access to my wireless network. For many routers, in minutes!

»www.neowin.net/news/the-wps-wifi ··· xplained
--
Cheers!

The Mongoose

join:2010-01-05
Toronto, ON

1 recommendation

reply to JonyBelGeul
said by JonyBelGeul:

said by MaynardKrebs:

said by UK_Dave:

I'm not named in this, and I never will be unless by error.

But *when* you are named in error someday, how are you going to *prove* it wasn't you?

Burden of proof lies with the accuser, not the accused.

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON
reply to drjp81
said by drjp81:

With all the routers out there with the WPS flaw, I'd simply point out to the fact that even if I reasonably try to secure my router, this flaw in the construction basically allows anyone with a PC to gain access to my wireless network. For many routers, in minutes!

I've got one ready to go to be examined by an expert and will introduce it as evidence at my own trial. That is after I file a dozens of motions for production of documents to examine their technical methodology of network analysis and then on to examine their financials.

The template for the Canadian case's IP identification strategy is based on the declaration of Daniel Arheidt who is associated with Guardaley.

The Canadian case: »decisions.fct-cf.gc.ca/en/2011/2 ··· 024.html

A US template case that explains their theory around an IP is a person: »docs.justia.com/cases/federal/di ··· 07720389


drjp81

join:2006-01-09
canada
said by peterboro:

I've got one ready to go to be examined by an expert and will introduce it as evidence at my own trial. That is after I file a dozens of motions for production of documents to examine their technical methodology of network analysis and then on to examine their financials.

The template for the Canadian case's IP identification strategy is based on the declaration of Daniel Arheidt who is associated with Guardaley.

The Canadian case: »decisions.fct-cf.gc.ca/en/2011/2 ··· 024.html

A US template case that explains their theory around an IP is a person: »docs.justia.com/cases/federal/di ··· 07720389

Nice one mate!
--
Cheers!

The Mongoose

join:2010-01-05
Toronto, ON
reply to peterboro
said by peterboro:

said by drjp81:

With all the routers out there with the WPS flaw, I'd simply point out to the fact that even if I reasonably try to secure my router, this flaw in the construction basically allows anyone with a PC to gain access to my wireless network. For many routers, in minutes!

I've got one ready to go to be examined by an expert and will introduce it as evidence at my own trial. That is after I file a dozens of motions for production of documents to examine their technical methodology of network analysis and then on to examine their financials.

The template for the Canadian case's IP identification strategy is based on the declaration of Daniel Arheidt who is associated with Guardaley.

The Canadian case: »decisions.fct-cf.gc.ca/en/2011/2 ··· 024.html

A US template case that explains their theory around an IP is a person: »docs.justia.com/cases/federal/di ··· 07720389

Get 'em.

Hopefully they never get the chance to sue, but way to be ready.
Expand your moderator at work


drjp81

join:2006-01-09
canada
reply to TSI Marc

Re: Why we are not opposing motion on Monday.

Ok even I can see a few holes in their methodology. Someone is going to have a field day with these guys.
--
Cheers!

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL

1 recommendation

reply to drjp81
With all the routers out there with the WPS flaw, I'd simply point out to the fact that even if I reasonably try to secure my router, this flaw in the construction basically allows anyone with a PC to gain access to my wireless network. For many routers, in minutes!
----------------

Hi.

I think if there was a legal responsibility to secure one's own network - backed up in law by vicarious liability - then complicating issues re: manufacturers liability to provide devices which are secure, and quite technical proofs about how that security can be circumvented may come into play. It's too complicated for this bear of little brain.

But until that happens, and it might, I'd stick to keeping it simple and saying what I said earlier. It's not secure, because it doesn't have to be.

Then we have to see how a judge interprets it. Does a nameless mass IP trawl operation implying automatic guilt on no other evidence, provide more of a sound basis for judgement than a sworn, honest statement of the facts backed up by realistic questions and concerns of a non-technical, easily explained nature.

Of course, if I did pirate things, I might not be comfortable with this defence. It would involve lying under sworn oath - and I for one wouldn't get into that territory for all the tea in China - and I like my tea!

Cheers
Dave


Tx
bronx cheers from cheap seats
Premium
join:2008-11-19
Mississauga, ON
kudos:12
Reviews:
·TekSavvy DSL
reply to peterboro
said by peterboro:

said by drjp81:

With all the routers out there with the WPS flaw, I'd simply point out to the fact that even if I reasonably try to secure my router, this flaw in the construction basically allows anyone with a PC to gain access to my wireless network. For many routers, in minutes!

I've got one ready to go to be examined by an expert and will introduce it as evidence at my own trial. That is after I file a dozens of motions for production of documents to examine their technical methodology of network analysis and then on to examine their financials.

The template for the Canadian case's IP identification strategy is based on the declaration of Daniel Arheidt who is associated with Guardaley.

The Canadian case: »decisions.fct-cf.gc.ca/en/2011/2 ··· 024.html

A US template case that explains their theory around an IP is a person: »docs.justia.com/cases/federal/di ··· 07720389

»www.zeropaid.com/news/93346/judg ··· f-crime/

This as a good read

JonyBelGeul
Premium
join:2008-07-31
reply to The Mongoose
said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

Plaintiff - I accuse this man of downloading my movie without my authorization.
Judge - Do you have evidence to support your allegations?
P. - I have an IP associated with the act, and I have a name associated with the IP, therefore I submit that the name associated with the IP committed the infraction.
J. - Do you have direct evidence that the name did the deed?
P. No.
J. The defendant says he did not do it.
P. I still believe he did.
J. Belief is not sufficient evidence. Charges dropped. Case dismissed.

But according to what you say, this is what happens instead:

J. Well, in spite of the defendant claiming his innocence, in spite of lack of direct evidence, if you believe he's guilty, then he's guilty.
--
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shepd

join:2004-01-17
Kitchener, ON
kudos:1
reply to TSI Marc
If only the burden of proof was that simple. Ever fought a parking ticket? The meter maid goes on the stand and says "Yes, he was parked there at that time". No evidence, just a statement.

No signature on the ticket, had a second court date. No proof that the meter maid had the right time on the ticket. Doesn't matter. The judge simply stated he's 51% sure the meter maid is telling the truth.

Now, of course, Voltage isn't a friend of the court, so they'll have to be a little bit more serious than that, but not all that much. Fortunately, the amount they'll win is miniscule.

The Mongoose

join:2010-01-05
Toronto, ON

1 edit
reply to JonyBelGeul
said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

There is no "burden of proof" in the way people think of this, only balance of probabilities. If it's more likely the defendant did the alleged deed than not, the plaintiff wins.

So a judge is going to ask "what is more likely...that this person shared the file or not?" That's it. And that's a much easier bar to meet than "beyond a reasonable doubt".

Does that mean Voltage would win lawsuits? No. But it's not a slam dunk by any means. And it's illegal in Canada to threaten to sue someone if you don't plan to sue them. Once voltage sends out their extortion letters, they are required by law to sue a certain percentage of them.

Torabo

join:2009-09-01
said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

*edit*
I'm pretty sure its illegal if its part of an extortion scheme, though that's more so because its extortion, but regular threats? don't people do that all the time? heck I'm pretty sure I've read in the papers about people threatening to sue each other over something or other.
Expand your moderator at work

Grappler

join:2002-09-01
Ottawa, ON
reply to TSI Marc

Re: Why we are not opposing motion on Monday.

Burden of Proof starts with the Plaintiff, no ifs, ands or buts; look at it from this perspective: you cannot defend against unknown evidence, this has to be presented into court first.
(Note: Disclosure does not constitute "evidence" until such time as it is entered into the courts).

Notice I stated "Burden of Proof starts"...

Once the plaintiff presents their case or during the presentation, subject to cross examination, they have now established their "Burden of Proof", it is now up to the defendant to tear that apart, some of which may be accomplished during cross examination. If they are able to successfully cross examine and make swiss cheese out of the plaintiff's case then the case may end there and the defendant wins. However, most likely they will then have to present evidence which disputes the plaintiffs case. This is when the "Burden of Proof" shifts to the defence.

funny0

join:2010-12-22
reply to Torabo
said by Torabo:

said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

slander of title...harrassment laws etc....all fall under that. ALSO class actions are what this is for...it might even be said you could be counter sued for fraud...again this is where lawyers know more ....but as i have said in examples OK you all downlaoded my PRECIOUS i want all your names and addresses all i have to do is come up with how much money to file in court....

and marc won't fight it so he can warn you a week ahead a time ...oh joy....
sounds like about 10 violations of the charter of rights and freedoms be a coming if someone wants too...

funny0

join:2010-12-22
reply to Grappler
said by Grappler:

Burden of Proof starts with the Plaintiff, no ifs, ands or buts; look at it from this perspective: you cannot defend against unknown evidence, this has to be presented into court first.
(Note: Disclosure does not constitute "evidence" until such time as it is entered into the courts).

Notice I stated "Burden of Proof starts"...

Once the plaintiff presents their case or during the presentation, subject to cross examination, they have now established their "Burden of Proof", it is now up to the defendant to tear that apart, some of which may be accomplished during cross examination. If they are able to successfully cross examine and make swiss cheese out of the plaintiff's case then the case may end there and the defendant wins. However, most likely they will then have to present evidence which disputes the plaintiffs case. This is when the "Burden of Proof" shifts to the defence.

yup and the first thing one asks for in any court is each others evidence ...its called discovery.... and when there's shows no known way to prove you did any commerical acts in the downloading or sharing case will and should be dissmissed.

resa1983
Premium
join:2008-03-10
North York, ON
kudos:10
reply to The Mongoose
said by The Mongoose:

said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

There is no "burden of proof" in the way people think of this, only balance of probabilities. If it's more likely the defendant did the alleged deed than not, the plaintiff wins.

So a judge is going to ask "what is more likely...that this person shared the file or not?" That's it. And that's a much easier bar to meet than "beyond a reasonable doubt".

Does that mean Voltage would win lawsuits? No. But it's not a slam dunk by any means. And it's illegal in Canada to threaten to sue someone if you don't plan to sue them. Once voltage sends out their extortion letters, they are required by law to sue a certain percentage of them.

I'm sure Voltage sent out their extortion letters last year when they handpicked the 10 IPs from Bell, Cogeco & Videotron... The case was given multiple extensions, and was finally dismissed for not filing suit.
--
Battle.net Tech Support MVP

Grappler

join:2002-09-01
Ottawa, ON
reply to Torabo
said by Torabo:

said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

You can threaten someone with a civil action all you want, it is not illegal, Sec 346(2) CCC. You cannot however threaten someone with a criminal action, in the hopes of obtaining a favour (extortion), sec 346 CCC, however you cannot threaten anyone with the publication of a defamatory libel, sec. 302 CCC.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL
Hey folks. I thought about a new thread for this, then thought against it.

I've looked through most of the current ones, but can't find any discussion of the following:

"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"

Does anybody out there know what the "inaccurate data" was in the original submission to TSI? i.e are we talking missing seperators in a CSV, or are we talking wrong addresses?

Cheers,
Dave

JonyBelGeul
Premium
join:2008-07-31
reply to shepd
said by shepd:

If only the burden of proof was that simple. Ever fought a parking ticket? The meter maid goes on the stand and says "Yes, he was parked there at that time". No evidence, just a statement.

No signature on the ticket, had a second court date. No proof that the meter maid had the right time on the ticket. Doesn't matter. The judge simply stated he's 51% sure the meter maid is telling the truth.

Now, of course, Voltage isn't a friend of the court, so they'll have to be a little bit more serious than that, but not all that much. Fortunately, the amount they'll win is miniscule.

Eyewitness testimony is evidence. However, here there is no eyewitness to Voltage's allegations.
--
My blog. Wanna Git My Ball on Blogspot.

JonyBelGeul
Premium
join:2008-07-31
reply to The Mongoose
said by The Mongoose:

said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

There is no "burden of proof" in the way people think of this, only balance of probabilities. If it's more likely the defendant did the alleged deed than not, the plaintiff wins.

So a judge is going to ask "what is more likely...that this person shared the file or not?" That's it. And that's a much easier bar to meet than "beyond a reasonable doubt".

Does that mean Voltage would win lawsuits? No. But it's not a slam dunk by any means. And it's illegal in Canada to threaten to sue someone if you don't plan to sue them. Once voltage sends out their extortion letters, they are required by law to sue a certain percentage of them.

Probabilities are based on evidence. We're back to burden of proof, which lies with the plaintiff.
--
My blog. Wanna Git My Ball on Blogspot.