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tired

join:2010-12-12
Reviews:
·TekSavvy Cable
·TELUS
reply to resa1983

Re: Why we are not opposing motion on Monday.

said by resa1983:

Do we know anything about the program that they used (Guar something)? Does it really use honeypots? Isn't there an angle that can be used to get things thrown out?

Unfortunately there isn't a lot of information about the product.

There is a funny case though in Germany where Guardaley Observer picked up a client from a rival p2p-monitoring firm Ipoque which resulted in them getting a notice. Ipoque's client just asked Guardaley's client if it could send some data but nothing was actually transferred so they're wondering how they could be accused of copyright infringement. Unlike regular users, Ipoque had every piece of network data logged and stored so could prove it and because they are competitors a financial incentive to fight it

The technical details here: »www.scribd.com/doc/62983561/Ipoque-Rev
And a German description of the incident here: »www.haftungsrecht.com/aktuelles/···sen.html


TSI Marc
Premium,VIP
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reply to tired
said by tired:

I was hoping for an English translation based on what you've seen and heard from this experience

Logically, if not legally, point (a) seems to fall on a lot of levels -- past behaviour in the US showing their intention isn't to actually bring 2000 cases to suit, questions about the accuracy of their evidence collection, is there any evidence to bring a commercial case against anyone, etc.

Even if it gets to the point where there is a case there seem to be a lot of unknowns that have yet to be resolved in Canada -- is downloading a film for personal use legal, is the account holder responsible for all activity on the account, is torrenting distribution, etc. Allowing the floodgates to open and start this party off with 2000 of these precedent setting cases (because we know they're actually going to sue and not just extort people, wink wink) all coming at once does not seem like the Canadian way.

Surely it would make logical sense to have a handful of test cases go through first before giving a known troll ammunition to seriously mess around with the financial well-being of so many people.

I don't want to start making legal arguments here, but in the last Voltage case against Bell, Cogeco and Videotron, the judge decided that the "bona fide claim" test was met just because it had started an action: "Voltage Pictures LLC has a bona fide claim against the defendants: it has brought an action against them for having infringed its copyright when they copied and publicly distributed the film Hurt Locker."

Also, what the Court of Appeal said in BMG was that "It is sufficient that they show a bona fide claim, _in the sense that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons_". Whether they are BMG or Voltage and only wanting to write cease and desist letters instead of go through to trial is an "improper purpose" for this test is uncharted territory in Canada. This is what I posted about originally; this is new ground for a lot of people.

responding further to your post - My understanding is that their statement of claim, they aren't necessarily limiting it to "commercial" infringement - they say the Defendants are people "who have unlawfully and without Voltage's authorization or consent copied and distributed Voltage's protected Works in breach of the laws of Canada."

Part of the problem is I'm (*definitely*) not here to make Voltage's case for them or give them arguments. Let's just say that the points that have been raised here are ones we have given a lot of thought to and are continuing to do so. I can also say that what Voltage does in this case, even if the names are ultimately ordered disclosed, will *definitely* be considered as part of any strategy decision by the next ISP who receives a request, whether that is TekSavvy or any other ISP.

I understand a test case approach has been adopted sometimes in the US (at the suggestion of the judge, not the ISP). There can be problems (who wants to be the test defendant?), but it can certainly make sense sometimes. Another issue is that even if the test case wins, it depends why - if it's because the IP address turned out to be wrong or a wifi or something, then that won't necessarily mean all the other claims are also dead.
--
Marc - CEO/TekSavvy


TwiztedZero
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1 edit
reply to resa1983
said by resa1983:

Do we know anything about the program that they used (Guar something)? Does it really use honeypots? Isn't there an angle that can be used to get things thrown out?

From:PCWorld
"Underlying the program is a service provided a German company, Guardaley IT, that uses "real-time monitoring" of BitTorrent transfers to identify movie downloads then captures IP addresses and time stamps them. The IP addresses are traced and the originating ISPs are then subpoenaed to reveal the identity of the associated user."

--
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tired

join:2010-12-12
Reviews:
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reply to resa1983
said by resa1983:

Does it really use honeypots?

Sorry, I forgot to answer this part. The honeypot allegation comes from their bittorrent client advertising that they have 50% of the file downloaded and allowing other clients to come pull from them at the same time their client pulls from the person who is being observed.

So it's not a honeypot in the sense that they aren't creating their own torrents and uploading them to pirate sites to see who will grab them (that was how I interpreted it when I first heard the claim).

I suppose it could be considered a honeypot if they actually do have half the file and are letting people download it for the purpose of capturing IPs, but nobody knows if that's actually what's happening or if they just respond to requests with garbage data.

Fuzzy285

join:2012-12-12
reply to TSI Marc
(e) the public interests in favour of disclosure must outweigh the legitimate privacy concerns.

Well, that's it right there. Where the infraction was for personal use, the studio is out maybe $10, and statutory damages don't apply. So you add the cost of the Court's time, the ISP's cost to comply (which is passed on to consumers), and the cost to the defendant in legal fees and you tell me if the "public interest" is served best in allowing this nonsense to proceed. The plaintiff made the bold assertion the infractions were for commercial purposes. That means they should have enough evidence to support it. No? Come back when you do.


Dr Facts

@gc.ca
reply to TSI Marc
said by TSI Marc See Profile
This is not me giving any opinion one way or another on the current situation. I'm merely trying to help ppl understand how the courts and judges and lawyers see these things.
[/BQUOTE :

Fair enough and in those cases time was a factor as well, too much time between the alleged infringement and their filling.

I guess that's why Voltage wanted to move quick and in doing so stumbled a bit.

But still, from what I can see, it all falls apart because there is no reliable way to say for certain X IP address downloaded X bittorrent at X time. It's your system and you guys weren't able to do do it without error. Now we have a third party running a fourth party app with a shady history from a remote location? That still sounds pretty hearsay to me.

So it boils down to Voltage saying so and so did, so and so saying no, and then what? Hand them a hard drive? Okay, the files aren't there because a) they never were or b) the drive that did have them is now at the bottom of a river.

The judge then has to decide if someone is lying I guess?

What a bloody stupid messy waste of time.



Cueco

@31.6.53.x
reply to TSI Marc
a) the applicant must have a bona fide case against the unknown alleged wrongdoer

bona fide Latin, In good faith. Honest; genuine; actual; authentic; acting without the intention of defrauding.

All you need to do is show historically that these type of claims cannot be proven with the IP's alone, and that the technology the claimant used is suspect and has been dismissed in the past.

Which makes their entire whole claim not honest, not genuine, and with intention to defraud, by trolling. Simply exhorting money from the IP's with hints and suggestions and unproven abilities to tie the IP's to the claim (as above).


Leigh Beadon

@bell.ca
reply to TSI Marc
The key question, in my mind, is that (a) test which, as you mentioned, was changed to bona fide from prima facie.

Voltage certainly has a prima facie (at first glance) claim here. But a bona fide (good faith) claim? As the CIPPIC letter requesting adjournment asserted, they do not... and given the well-established behaviour of Voltage in the U.S. (not to mention the increasingly angry reaction from judges to such operations) I think there is a solid argument for that.

We all know what Voltage's plan is here: get the info, then send out threat letters and try as hard as possible to avoid ever having to go to court, by simply scaring everyone into settling. Their reason for requesting this info is /not/ a good faith intention to bring 2000 actions for copyright infringement.

Given that -- and I am genuinely asking, not trying to be accusatory -- why not stand up for your customers against a notorious shakedown operation?


AkFubar
Admittedly, A Teksavvy Fan

join:2005-02-28
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reply to TSI Marc
The fact that people's contact info was misidentified when trying to match it to the IP by TSI already introduces doubt that very basis of the allegation - that the people id'd are actually the ones that did the infringing. The identification of names is far from certain implication imo.
--
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TraderOne

@teksavvy.com
reply to TSI Marc
Hi Marc,

Under what legal obligation that Teksavvy needs to log customers' IP for 60 days? If there is no such legal obligation, don't you feel Teksavvy should be partially responsible for dragging its customers into this Voltage's crap because Teksavvy tracks customers' private information for its own benefit?

I don't think notifying its customers and tell its customers to je*k off themselves is a responsible action for an ISP who keeps saying working hard to protect its customers' privacy, but tracks its customers for no legal obligation.

The Mongoose

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

The fact that people's contact info was misidentified when trying to match it to the IP by TSI already introduces doubt that very basis of the allegation - that the people id'd are actually the ones that did the infringing. The identification of names is far from certain implication imo.

There's no question that a determined defendant could show lots of ways in which mistakes could have led to a false positive. Whether that will outweigh Voltage's evidence in the eyes of the court is the key question.

Of course, we all hope this gets thrown out and Voltage never gets the chance to link IPs to users.


TSI Marc
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1 edit
reply to Leigh Beadon
said by Leigh Beadon :

The key question, in my mind, is that (a) test which, as you mentioned, was changed to bona fide from prima facie.

Voltage certainly has a prima facie (at first glance) claim here. But a bona fide (good faith) claim? As the CIPPIC letter requesting adjournment asserted, they do not... and given the well-established behaviour of Voltage in the U.S. (not to mention the increasingly angry reaction from judges to such operations) I think there is a solid argument for that.

We all know what Voltage's plan is here: get the info, then send out threat letters and try as hard as possible to avoid ever having to go to court, by simply scaring everyone into settling. Their reason for requesting this info is /not/ a good faith intention to bring 2000 actions for copyright infringement.

Given that -- and I am genuinely asking, not trying to be accusatory -- why not stand up for your customers against a notorious shakedown operation?

In legalese. prima facie, is a higher test then a bona fide.

Here's what was said in the BMG case, quoted from the Court of Appeal:

“In my view, it would make little sense to require proof of a prima facie case at the stage of the present proceeding. The appellants do not know the identity of the persons they wish to sue, let alone the details of precisely what was done by each of them such as to actually prove infringement. Such facts would only be established after examination for discovery and trial. The appellants would be effectively stripped of a remedy if the courts were to impose upon them, at this stage, the burden of showing a prima facie case. It is sufficient if they show a bona fide claim, i.e. that they really do intend to bring an action for infringement of copyright based upon the information they obtain, and that there is no other improper purpose for seeking the identity of these persons.”

edit:

That’s not to say that we agree that Voltage has necessarily met either test. Ultimately that’s for them to prove and the court to decide, which is part of our not taking a position on the motion (we don’t consent, we don’t oppose).

--
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tired

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1 recommendation

reply to resa1983
said by resa1983:

Do we know anything about the program that they used (Guar something)? Does it really use honeypots? Isn't there an angle that can be used to get things thrown out?

Ok, this is the last time I'm replying to this post... Promise.

The reason there isn't a lot of information on GuardaLey Observer is that isn't actually its name. The software is called International IPTracker. For information on how it works, check out this court declaration: »beckermanlegal.com/Lawyer_Copyri···rExA.pdf IPP is an (umm... what's the nice word for alias) of GuardaLey. If you look at the picture on page 5 you'll see the caption under their server is "GL Observer". The affidavit that accompanies this declaration can be found »beckermanlegal.com/Lawyer_Copyri···eser.pdf and is eerily similar in parts to the one by Barry Logan that was served to TekSavvy.

What I find really interesting is that the software is "based on Shareaza 2.4.0.0", which was released under the Gnu General Public License which makes me wonder if GuardaLey or IPP have the right to sell the software to Canipre or if they are somehow in violation of the GPL? That could be one approach.

Another perhaps is to question the validity of the program. Should they be required to release the source code in order for a third party to ensure that it actually does what is on the box? And along those lines, is there an affidavit from anyone familiar enough with the source code to make the claims, or is that part of the motion hearsay?

There is some worrying history about this software to take what it does at face value, including the above referenced fiasco with Ipoque that ended up with GuardaLey being sued by one of their former law firm partners, Baumgarten Brandt.

I don't think the software angle is being played up enough. It is, after all the only witness against the John Does.


TSI Marc
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1 recommendation

reply to Leigh Beadon
said by Leigh Beadon :

The key question, in my mind, is that (a) test which, as you mentioned, was changed to bona fide from prima facie.

Voltage certainly has a prima facie (at first glance) claim here. But a bona fide (good faith) claim? As the CIPPIC letter requesting adjournment asserted, they do not... and given the well-established behaviour of Voltage in the U.S. (not to mention the increasingly angry reaction from judges to such operations) I think there is a solid argument for that.

We all know what Voltage's plan is here: get the info, then send out threat letters and try as hard as possible to avoid ever having to go to court, by simply scaring everyone into settling. Their reason for requesting this info is /not/ a good faith intention to bring 2000 actions for copyright infringement.

Given that -- and I am genuinely asking, not trying to be accusatory -- why not stand up for your customers against a notorious shakedown operation?

Since to my understanding the bona fide test is supposed to be lower than the prima facie test, I would have thought that if they meet prima facie, they meet bona fide. But I take your point to mean that there’s an argument that they don’t meet bona fide (and wouldn’t meet prima facie either) because of their conduct in the US and what we can infer from the fact that the request is for 2000 IP addresses. I agree that there may be an argument there – it’s not one that I think has been applied in any Canadian court as far as I know, but as I’ve said elsewhere, this is uncharted territory. CIPPIC has made this point in its letter and presumably will in its intervention request – CIPPIC’s awareness of the case and their resulting intervention request is I guess a direct positive arising out of our decision to insist on notice and make sure this wasn’t just done quickly and quietly like last cases have been.

Unfortunately, your question about why TekSavvy itself doesn’t raise this argument puts me in a tough place: I either give you a lame answer that might not satisfy you, or I end up making Voltage’s arguments for them in a public forum, which I’m not going to do. I guess my best response is that the point is one we have given a lot of thought to and are continuing to do so. I can also say that what Voltage does in this case if the names are ultimately ordered disclosed will *definitely* be considered as part of any strategy decision by the next ISP who receives a request, whether that is TekSavvy or any other ISP. As it stands, we think we’ve done customers a real service by giving them notice and raising the issue in public.
--
Marc - CEO/TekSavvy


TwiztedZero
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Well stated Marc


Guspaz
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reply to TSI Marc
said by TSI Marc:

Unfortunately, your question about why TekSavvy itself doesn’t raise this argument puts me in a tough place: I either give you a lame answer that might not satisfy you, or I end up making Voltage’s arguments for them in a public forum, which I’m not going to do. I guess my best response is that the point is one we have given a lot of thought to and are continuing to do so. I can also say that what Voltage does in this case if the names are ultimately ordered disclosed will *definitely* be considered as part of any strategy decision by the next ISP who receives a request, whether that is TekSavvy or any other ISP. As it stands, we think we’ve done customers a real service by giving them notice and raising the issue in public.

So, if Voltage ultimately takes the TSI IPs, sends out 2000 extortion letters, but never actually files a single lawsuit, the next time they tried to make an IP request to TekSavvy, there is a possibility that you might oppose their motion on the grounds that they used the same argument last time and never filed any lawsuits?
--
Developer: Tomato/MLPPP, Linux/MLPPP, etc »fixppp.org


Leigh Beadon

@bell.ca
reply to TSI Marc
Thanks for the reply And that was my mistake about prima facie versus bona fide in terms of which was stricter -- however, as you say, I do still wonder whether they meet either bar.

It is interesting, actually -- because by focusing things on the intent, the bona fide standard really *highlights* the problem here (even though that same standard is an element of the higher prima facie standard). In this case, it seems as though it would be easier for Voltage to demonstrate that they have prima facie evidence of infringement -- *except* for the element of bona fide intent to bring action, which we all know they *don't* have based on past behaviour.


TSI Marc
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reply to dillyhammer
said by dillyhammer:

said by TSI Marc:

(d) the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs;

This is the part that disturbs me the most. It almost puts TSI in a conflict of interest, when the disclosure of private customer information results in a revenue stream. Legal costs too. So lawyers have a vested interest in protracted proceedings. Yuck.

Seems like everyone is making money throwing customers under a bus, no?

Mike

I meant to answer this earlier.

While it may appear like that on the surface, there’s two reasons that this isn’t the case. First, “reasonably compensated” doesn’t mean that TekSavvy gets to make a big old profit on this, just that it can get reimbursed so it isn’t out of pocket. I can assure you – this isn’t our business model!! We make our money on providing quality Internet service, not on complying with court orders (or not) to produce IP addresses. Second, while we don’t know what amount the Court will order Voltage to pay us or what number we might be able to agree on/negotiate, I can tell you for sure that when all is said and done, we will almost certainly be out of pocket on this one because of the approach we have decided to take in providing notice to people and getting it all out in public. We don’t think that’s throwing customers under a bus by any means. We’re prepared to incur that cost and think that it’s worth it – but don’t tell me we’re making money on it!

As for the lawyers, all I can say is that they’re getting paid for giving legal advice as they always do. The situation here is no different than any litigation (more litigation, more fees), but that doesn’t mean they have a conflict any time they act on a case. The fact that Voltage has to pay legal costs just means that TekSavvy and other ISPs shouldn’t ultimately have to be the ones paying for Voltage to get the information they are after.
--
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MaynardKrebs
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reply to TSI Marc
said by TSI Marc:

What would your argument to the judge be? look.. these guys have a clear history of this stuff... I know there is currently nothing in the law but you should change the law or tweak it for these special cases..

So get into evidence the profitability (loss) of each of these titles as of the date of the initial court filing (Dec. 11th???). Then suggest to the Court that the plaintiff is attempting to turn a loss on properties which clearly have no appeal to the public into a profit via extortion.

MaynardKrebs
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1 edit

1 recommendation

reply to dillyhammer
said by dillyhammer:

said by TSI Marc:

(d) the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs;

This is the part that disturbs me the most. It almost puts TSI in a conflict of interest, when the disclosure of private customer information results in a revenue stream. Legal costs too. So lawyers have a vested interest in protracted proceedings. Yuck.

Seems like everyone is making money throwing customers under a bus, no?

Not really.

TSI makes no money on this, even if they cost it out @ $200/IP once all costs are factored in. In fact, TSI is probably out-of-pocket at the end of the court hearings. The only winners in this are the lawyers representing the plaintiff & defendant. Even the full cost of the Court isn't covered in any 'costs' motion - the bulk of the Court costs are infrastructure & Court officials salaries/pensions - which all taxpayers pay for.

If I were the judge, I'd make Voltage post a $1MM bond against fully burdened Court costs in order to proceed with the case.

And I'd make sure if I was the Judge, that Voltage did in fact sue people - as they claimed they would on the 17th. If they don't sue the vast majority of the John Doe's once they get the PI information, I'd throw everyone @ Voltage (and their lawyers) into jail for contempt.


dillyhammer
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said by MaynardKrebs:

TSI makes no money on this, even if they cost it out @ $200/IP once all costs are factored in.

That's about 460,000 bananas.

Are they sending the data over to voltage etched on solid gold plates? Or do the 4 staff needed to sort this out make 115,000 a month?



They, like everyone attached to this POS lawsuit, will be inflating the hell out of their costs to rake in the bananas.

Mike
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thm655321

join:2003-09-01
Canada
To ensure that Voltage passes the test, the court should make it a condition of the provision of the names/addresses that Voltage be required to initiate proceedings against each person they wish to deal with prior to being allowed to send any form of settlement letter to such persons.

That in and of itself might very well put the nail in Voltage's strategy.

resa1983
Premium
join:2008-03-10
North York, ON
kudos:10
My buddy made this excel spreadsheet, linking all the movies Voltage is suing for, as well as how much they made in theaters...

Its certainly interesting, and shows WHY they're doing the lawsuits: many of them bombed out completely, and only 1 of the movies was even decent.
--
Battle.net Tech Support MVP


mlerner
Premium
join:2000-11-25
Nepean, ON
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That's funny and apparently there were some high rated movies 7+ but didn't make much at box office. Probably would be considered cult-ish. But that's Hollywood, majority want flashy marketable movies.

Guess Voltage is the only who doesn't know the business or is in denial.


hm

@videotron.ca
reply to resa1983
When I was at walmart the other day, these titles didn't even exist. So I wonder how much "revenue" was really lost.

But, then again, being in Quebec means it just may not be available here since they have to release in both languages. Might be available in the rest of Canada though. No clue.


hm

@videotron.ca
reply to mlerner
said by mlerner:

Guess Voltage is the only who doesn't know the business

Something I noticed that they said over and over again in regards to lawsuits here, the US and the UK, is that going after people is an after-market revenue stream.

So I think they know the troll business very well.


drjp81

join:2006-01-09
canada

1 edit
reply to TSI Marc
Deleted:Already getting flamed.
--
Cheers!

resa1983
Premium
join:2008-03-10
North York, ON
kudos:10
Wow.. Long spiel for nothing..

Read the thread, especially Marc's posts from pages 23 to 25.
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Battle.net Tech Support MVP

Marbles_00

join:2005-02-14
Hamilton, ON
reply to resa1983
@resa1983

You might want to get your buddy to verify the list. I was astonished to find the movie Conviction there. Looking up the IMDB, no where is Voltage listed or associated to this movie. Looking at Voltage's website, no where is this movie listed. Which is good because I enjoyed it and to find out that it may have been associated to this scum company made me vomit in my mouth a little.

I think your buddy meant to list Maximum Conviction (which he does later list anyways). Let's hope that was in error.

resa1983
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said by Marbles_00:

@resa1983

You might want to get your buddy to verify the list. I was astonished to find the movie Conviction there. Looking up the IMDB, no where is Voltage listed or associated to this movie. Looking at Voltage's website, no where is this movie listed. Which is good because I enjoyed it and to find out that it may have been associated to this scum company made me vomit in my mouth a little.

I think your buddy meant to list Maximum Conviction (which he does later list anyways). Let's hope that was in error.

You're right! Updated file.
--
Battle.net Tech Support MVP