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Arcturus

join:2008-04-18
London, ON
reply to Epiralawler

Re: If TekSavvi doesn't fight on Jan 14th, I'm leaving them.

said by Epiralawler :

First of all I am not a lawyer, nor am I certified to practice law in the province of Ontario. Neither is anyone so far in this thread that I can identify. Please take everything heard here with a grain of salt and seek the proper advice if its needed.

If tek fights this like poeple want it will mean Tek is actually incriminating itself (as a company) for wilful commercial infringement (because they are profiting off of the data).

Remember there is no 3rd party exemption for ISPs in Canada (or anyone else). If an ISP (or IP owner/poster) doesn't bend over and negotiate--it gets held responsible for 3rd party usage of the assets it is responsible for.

In essence, the ISP is responsible not you, unless the ISP sides with the plaintiff completely. This is going to either have to be modified in an amendment to the Copyright Act, or through case law (as it has not been tested yet) but this is how the law works here.

>In essence, the ISP is responsible not you, unless the ISP sides with the plaintiff completely.
That is last part is not in the law, the ISP is responsible regardless if they co-operate or not. There is nothing in the law that abides an infringer of the law because they co-operated to find other infringers.

So, Teksavvy should be fighting for our privacy. (If they lose this case, they could be the ones sued for all 2000 cases). Just as much as any individuals.
No-one is expecting them to show up and fight for people in a piracy case in court. This isn't a piracy case in court. This is a privacy case in court. On if they should release customer information based on flimsy/incorrect evidence. For a company that has shown in the past the abuse such information.
No-one wants Teksavvy to stand up in court and say these customers didn't do X, we want them to stand up in court and point out to the judge that 1. The information Voltage has is a. inaccurate at best, b. not proof of commercial copyright infringement,(the case in my understand was entered as a commercial infringement case against all 2000 IPs) and 2. Point out the history of court abuse Voltage has, and say it is likely this case is going to lead to that same abuse.

Doing any of the above does not leave them anymore vulnerable under copyright law than not fighting this aspect of the case. Other than trusting the word of Voltage that if Teksavvy lets them eat their customers and they promise not to sue Teksavvy. or perhaps they even have a backdoors contract signed to hand over their own customers on behalf of Voltage for immunity. It seems to be a possible explanation...givin all consideration to the above

OR

Tell us in actual factual language, and information provided by their lawyers as to WHY this is not the case. So far I have no seen this provided from us as to why Teksavvy is not fighting for our privacy.

IANAL


neochu

join:2008-12-12
Windsor, ON

1 recommendation

To Op, your free to go to wherever you want to go for your Mandated; non essential telecommunications service. But, wherever you do the law is the same and this can happen to ANY ISP in Canada--big or small.

Its just the bigger ISPs have more money and resources to deal with frivolous claims related to legislative cross conflicts due to poorly planned and implemented amendments.

said by Arcturus:

Tell us in actual factual language, and information provided by their lawyers as to WHY this is not the case. So far I have no seen this provided from us as to why Teksavvy is not fighting for our privacy.

Let me weigh in on the anonymous posting. Though without actual case law references and direct references to the legislation itself--it's hard to prove. Without skirting the definition of "Legal Advice without a Law Licence in Ontario" at least.

Of course no lawyer actually involved with the case (or persons involved) are going to be giving out information subject to client-attorney privilege publicly. Naturally, that means they wont be jeopardizing the case by weighing in on this thread.

So in reality your proof is impossible to give, making you un-convinceable. That is fine.

I suggest you speak to a qualified legal professional if you so wish to for more details. It is clear you probably should be pursuing your own claim against them for your perceived privacy violations.

I also suggest anyone reading this post and is a concerned TekSavvy Customer file a complaint with the Privacy Commissioner. It is clear there is potentially enough risk for them to become involved.

said by Arcturus:

>In essence, the ISP is responsible not you, unless the ISP sides with the plaintiff completely.

That is last part is not in the law, the ISP is responsible regardless if they co-operate or not. There is nothing in the law that abides an infringer of the law because they co-operated to find other infringers.

[...](If they lose this case, they could be the ones sued for all 2000 cases). Just as much as any individuals.

3rd Party Liability. In the eyes of Canadian Common Law, Tek Savvy can be held responsible for the actions of its subscribers who use its infrastructure. It gets very complicated but because of its status under the Telecommunication's act 'the buck stops' at Tek as the primary 3rd party. There is nothing in the amendments or other rulings to suggest common law doesn't apply to copyright legislation.

The workings of 3rd party liability would suggest that providing the requested information would be in "good faith" but it depends on the claim as originally structured as to what Tek's further responsibilities are (in relation to the "dumb pipe" claims in CTRC rulings).

3rd-hand discussion about the details would suggest that Tek would be released from liability if it disclosed the information as requested without dispute. Though this would be a matter of case law, not legislation (neutral 'dumb pipes' don't dispute requests for data, just provide connection and billing data on court ordered request -- without discussing case mechanics or validity).

said by Arcturus:

...So, Teksavvy should be fighting for our privacy...

As you know privacy in Canada is governed by the Privacy act and a few pieces of related legislation (Electronic Documents act, for example). Per the the regulations enforced by that legislation the request is for Tek to "disclose" to Voltage sufficient enough information to identify the primary infringers--as presented in its copyright lawsuit. That act says nothing about the quality of evidence presented in the source claim or the practices of the entity making the request; only what can or cannot be disclosed and how when a claim is made.

See the issues with the risk of 3rd party Liability above as well. Tek cannot weigh in on the "validity of evidence" (Disputing the disclosure request in this way actually means arguing against Prima Facie) without exposing itself to 3rd Party Liability. That is in Common Law.

Remember, it is co-defendant in a Lawsuit with the 2000 users as a 3rd party (facilitator) there are specific requirements it has to meet as such.

Its hands are tied as expectations are for Tek to comply with its Common Law obligations while honouring the Privacy act. That means if it has conflicting obligations it is outside of the current case to deal with.

No-one is expecting them to show up and fight for people in a piracy case in court. This isn't a piracy case in court. This is a privacy case in court. On if they should release customer information based on flimsy/incorrect evidence. For a company that has shown in the past the abuse such information.

No-one wants Teksavvy to stand up in court and say these customers didn't do X, we want them to stand up in court and point out to the judge that 1. The information Voltage has is a. inaccurate at best, b. not proof of commercial copyright infringement,(the case in my understand was entered as a commercial infringement case against all 2000 IPs) and 2. Point out the history of court abuse Voltage has, and say it is likely this case is going to lead to that same abuse.

Tek Savvy is a 3rd party co-defendant in a copyright infringement (piracy) lawsuit filed by Voltage Pictures, under the most current version of the copyright act. Tek is the identified 3rd party that has sufficient enough information to identify the 2000 who carry the primary liability (secondary privacy issue). If tek discloses this information without disputing any part of the claim (abusive/bad faith/poorly constructed, etc) then it is probably no longer liable.

For them to meet their customer's expectations as you have explained means going after both Voltage's Prima Face (evidence as presented, court history) and Bona Fide (commercial infringement claim, method of data collection, source of data) in open court. US case law would suggest most of the customer issues discussed here are actually closer to Bona Fide then Prima Facie which makes the argument more difficult in a Canadian court. Either way, disputing those is something you deal with in your Statement of Defence.

Filing that that Means Tek is openly defending against the claim levied against it (for its users), or if Voltage listed all 2001 defendant's involved individually... In conjunction with them.

For Tek to actually file anything in court at all (dumb pipe or not) they are potentially exposing themselves to negligence. Because they did not take better precautions to protect their equipment from infringing use (also from the CTRC Rulings).

Its no different in a libel suit where Tek would refuse to provide appropriate IP information of a user who is being accused of libel in an internet posting. In fact, standard procedure for such a situation suggests that you accuse the ISP with 3rd Party Liability in order to force them to comply with disclosing the identity of your John or Jane Doe. Should they comply in the same way as requested here, they are released from the claim with prejudice. Technically as well, the Privacy act requires such a situation before compliant disclosure can be made. That also means the winner could be responsible for an ISP's costs in making that identification.

Though it sounds like Voltage didn't take this approach. More like their argument is that, Tek benefits from heavy data use as profit. Tek heavily advertises unlimited data usage for the purpose of heavy traffic and has designed packages to facilitate this. That is more then enough circumstantial evidence to prove that Tek commercially benefited from its customer's infringement activities.

That is probably why Tek is such a big target for this right now. Its also why CIPPC is involved given the internet buisness culture and the other uniquely Canadian mitigating factors.


GermanVPN

@leaseweb.com
As a seperate note I see today the Swedish Supreme Court ruled that two ISP's have to hand over personal information on two clients for file sharing.

Interestingly they both fought, one ended up losing and just riding it out, the other went out of business during the fight.

funny0

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

To Op, your free to go to wherever you want to go for your Mandated; non essential telecommunications service. But, wherever you do the law is the same and this can happen to ANY ISP in Canada--big or small.

Its just the bigger ISPs have more money and resources to deal with frivolous claims related to legislative cross conflicts due to poorly planned and implemented amendments.

said by Arcturus:

Tell us in actual factual language, and information provided by their lawyers as to WHY this is not the case. So far I have no seen this provided from us as to why Teksavvy is not fighting for our privacy.

Let me weigh in on the anonymous posting. Though without actual case law references and direct references to the legislation itself--it's hard to prove. Without skirting the definition of "Legal Advice without a Law Licence in Ontario" at least.

Of course no lawyer actually involved with the case (or persons involved) are going to be giving out information subject to client-attorney privilege publicly. Naturally, that means they wont be jeopardizing the case by weighing in on this thread.

So in reality your proof is impossible to give, making you un-convinceable. That is fine.

I suggest you speak to a qualified legal professional if you so wish to for more details. It is clear you probably should be pursuing your own claim against them for your perceived privacy violations.

I also suggest anyone reading this post and is a concerned TekSavvy Customer file a complaint with the Privacy Commissioner. It is clear there is potentially enough risk for them to become involved.

said by Arcturus:

>In essence, the ISP is responsible not you, unless the ISP sides with the plaintiff completely.

That is last part is not in the law, the ISP is responsible regardless if they co-operate or not. There is nothing in the law that abides an infringer of the law because they co-operated to find other infringers.

[...](If they lose this case, they could be the ones sued for all 2000 cases). Just as much as any individuals.

3rd Party Liability. In the eyes of Canadian Common Law, Tek Savvy can be held responsible for the actions of its subscribers who use its infrastructure. It gets very complicated but because of its status under the Telecommunication's act 'the buck stops' at Tek as the primary 3rd party. There is nothing in the amendments or other rulings to suggest common law doesn't apply to copyright legislation.

The workings of 3rd party liability would suggest that providing the requested information would be in "good faith" but it depends on the claim as originally structured as to what Tek's further responsibilities are (in relation to the "dumb pipe" claims in CTRC rulings).

3rd-hand discussion about the details would suggest that Tek would be released from liability if it disclosed the information as requested without dispute. Though this would be a matter of case law, not legislation (neutral 'dumb pipes' don't dispute requests for data, just provide connection and billing data on court ordered request -- without discussing case mechanics or validity).

said by Arcturus:

...So, Teksavvy should be fighting for our privacy...

As you know privacy in Canada is governed by the Privacy act and a few pieces of related legislation (Electronic Documents act, for example). Per the the regulations enforced by that legislation the request is for Tek to "disclose" to Voltage sufficient enough information to identify the primary infringers--as presented in its copyright lawsuit. That act says nothing about the quality of evidence presented in the source claim or the practices of the entity making the request; only what can or cannot be disclosed and how when a claim is made.

See the issues with the risk of 3rd party Liability above as well. Tek cannot weigh in on the "validity of evidence" (Disputing the disclosure request in this way actually means arguing against Prima Facie) without exposing itself to 3rd Party Liability. That is in Common Law.

Remember, it is co-defendant in a Lawsuit with the 2000 users as a 3rd party (facilitator) there are specific requirements it has to meet as such.

Its hands are tied as expectations are for Tek to comply with its Common Law obligations while honouring the Privacy act. That means if it has conflicting obligations it is outside of the current case to deal with.

No-one is expecting them to show up and fight for people in a piracy case in court. This isn't a piracy case in court. This is a privacy case in court. On if they should release customer information based on flimsy/incorrect evidence. For a company that has shown in the past the abuse such information.

No-one wants Teksavvy to stand up in court and say these customers didn't do X, we want them to stand up in court and point out to the judge that 1. The information Voltage has is a. inaccurate at best, b. not proof of commercial copyright infringement,(the case in my understand was entered as a commercial infringement case against all 2000 IPs) and 2. Point out the history of court abuse Voltage has, and say it is likely this case is going to lead to that same abuse.

Tek Savvy is a 3rd party co-defendant in a copyright infringement (piracy) lawsuit filed by Voltage Pictures, under the most current version of the copyright act. Tek is the identified 3rd party that has sufficient enough information to identify the 2000 who carry the primary liability (secondary privacy issue). If tek discloses this information without disputing any part of the claim (abusive/bad faith/poorly constructed, etc) then it is probably no longer liable.

For them to meet their customer's expectations as you have explained means going after both Voltage's Prima Face (evidence as presented, court history) and Bona Fide (commercial infringement claim, method of data collection, source of data) in open court. US case law would suggest most of the customer issues discussed here are actually closer to Bona Fide then Prima Facie which makes the argument more difficult in a Canadian court. Either way, disputing those is something you deal with in your Statement of Defence.

Filing that that Means Tek is openly defending against the claim levied against it (for its users), or if Voltage listed all 2001 defendant's involved individually... In conjunction with them.

For Tek to actually file anything in court at all (dumb pipe or not) they are potentially exposing themselves to negligence. Because they did not take better precautions to protect their equipment from infringing use (also from the CTRC Rulings).

Its no different in a libel suit where Tek would refuse to provide appropriate IP information of a user who is being accused of libel in an internet posting. In fact, standard procedure for such a situation suggests that you accuse the ISP with 3rd Party Liability in order to force them to comply with disclosing the identity of your John or Jane Doe. Should they comply in the same way as requested here, they are released from the claim with prejudice. Technically as well, the Privacy act requires such a situation before compliant disclosure can be made. That also means the winner could be responsible for an ISP's costs in making that identification.

Though it sounds like Voltage didn't take this approach. More like their argument is that, Tek benefits from heavy data use as profit. Tek heavily advertises unlimited data usage for the purpose of heavy traffic and has designed packages to facilitate this. That is more then enough circumstantial evidence to prove that Tek commercially benefited from its customer's infringement activities.

That is probably why Tek is such a big target for this right now. Its also why CIPPC is involved given the internet buisness culture and the other uniquely Canadian mitigating factors.

go read the new copyright law ISPS are given immunity period.
what your saying is for any reasons anyone can pester a company and sequester information on the customers or employees
FALSE. don't need to be a lawyer to know that ( see privacy law and charter of rights and freedoms for a start , this aint america eh )
teksavvy is NOT a 3rd party to the actions here by the new copyright law they are effectively a transmission , the liability falls on the actions of the individual.

we also have a bc ruling on that based on the fact that linking to infrimging is not illegal its up to the person doing it and they get liability.

the case was wildly heralded as a sane response or tons a websites would go poof and news sites would have been screwed.

THIS IS NOT A LIBEL SUIT
its a commercial copyright infringement lawsuit.
its aim is to say these people profited from the use of someone's creation without authorization or license.

ITS BEEN ( in my opinion ) Wrongly filed as it should be princial matter not federal and small claims action of non commerical infringment. THEN in fact the actual names dont matter to be had also. a judge could have the list and rule and a judgement be passed on to the users. a way to keep privacy there and follow not only the spirit of the law but its intent.

Again TSI didn't read the new copyright law they are given immunity.

MaynardKrebs
Heave Steve, for the good of the country
Premium
join:2009-06-17
kudos:4
reply to Arcturus
said by Arcturus:

That is last part is not in the law, the ISP is responsible regardless if they co-operate or not. There is nothing in the law that abides an infringer of the law because they co-operated to find other infringers.

So, Teksavvy should be fighting for our privacy. (If they lose this case, they could be the ones sued for all 2000 cases). Just as much as any individuals.

Common carriers (Bell, Rogers, Telus, TSI) are NOT held responsible for aiding & betting when a terrorist makes a phone call or sends an e-mail plotting an act of mass destruction. Nor are they held responsible when a gang of bank robbers use cell phones to communicate with one another. Canada Post isn't held responsible when extortion letters are sent by Voltage.

Oh....I forget....we're talking about Hollywood and US interests...... Of course, Bell Rogers, Telus, TSI, Acanac all are accessories to heinous criminal acts of copyright infringement and must be held accountable. Bring on the black helicopters & Seal Team 6.


Good One

@videotron.ca
IP/Copyright Lawyer, Howard Knopf, put up another post that includes Teksavvy.

Basically, it's Predictions for 2013, but he just lays it out w/o making predictions because Teksavvy has the ability to write their own outcome of this whole Voltage affair.

See:

What to Watch for in Canadian Intellectual Property Law in 2013
»www.excesscopyright.blogspot.ca/ ··· -in.html

Here are a few things to look out for this year. These are essentially in the form of questions – for most of which there is no easy answer to predict. So, I’ll refrain from predicting.

COPYRIGHT

The year will no doubt kick off with the Voltage Pictures “mass litigation” campaign. It might be noted that a similar effort by Voltage involving Quebec based ISPs that did not oppose the motion to disclose their clients’ identities fizzled last year for unknown reasons – and with no individuals actually being sued. This time around, some seem to think that Voltage is more determined. Will feisty, progressive Teksavvy, the ISP that has built its reputation on being customer-friendly, actually stand up and fight for its customers’ “privacy” without taking sides on “piracy”? That’s what Shaw and Telus did vigorously and successfully in 2004, with Bell and Rogers onside if not quite as actively. What should/will Teksavvy do if it turns out to be relatively easy for it to challenge the adequacy of Voltage’s material for the motion that seeks disclosure of the names and addresses of potentially thousands of Teksavvy’s customers? The law on this, including the evidentiary concerns that could arise, was clearly laid out in the BMG case by the Federal Court of Appeal in 2005 and the background is all there on CIPPIC’s website. If Voltage’s widely circulated current material is indeed inadequate (upon which I make no comment) and an ISP as savvy as Teksavvy doesn’t challenge its adequacy at the outset, what signal will this send to future potential mass litigators and copyright “trolls”? And to Canadian ISP customers generally and Teksavvy’s customers in particular? What could CIPPIC do if it is permitted to intervene? Is this something that CIPPIC will have to do on a regular basis? What will happen if the names and addresses are eventually provided to Voltage? Will there actually be lawsuits, or will there simply be high pressure settlement demands en masse? To be continued on January 14, 2013 in the Federal Court.


Continues...

He is saying Teksavvy has the ability to write their own future (and history) here.

Now, I think many of us get the feeling that Teksavvy is just moving aside in order to let CIPPIC handle this. But, my faith isn't with CIPPIC, though they bring a lot to the table, as academics.

Arcturus

join:2008-04-18
London, ON
reply to MaynardKrebs
I don't personally think TSI or any carrier should ever be responsible (and I don't believe Canada laws does either), I was discussion with someone who said that was the case, and entertaining that even if it were the case TSI should still be fighting for people's privacy and rights.

As for the person I gave the benefit of the doubt for then assume for some reason TSI is giving out *my* information (as far as I am aware they are not), nor should they be unless it is a mistake (that I would be unable to prove as a mistake).

He told me I should be suing TSI and whatever for giving out my information, only they are not giving out my information! Why on earth would you assume that?!? Oh right if I argue for privacy I'm a child raping, pirating murderer.

funny0

join:2010-12-22
if you read hte copyright law it has network provisions that limit the isps liability and it basically in lamens terms says that if and as long as your not telling people to infringe and say running a torrent site or infringing software that they cant be held liable for we the users actions

also a not long ago case in bc that went to the supreme court sais that also again its up to the users to visit an infringing link as in
no problem to BE a torrent site and post the links to the torrents as they are not the infringing material and its YOU the user that is responsible for your actions. ergo the isp nor a website can be held liable. THATS A SUPREME COURT ruling where someone tried to sue based on someone linking to other content.

i also found bad news ina sense

one little line gave voltage more power to sue for commercial infringement if they can prove profits were made on there stuff.
BUT good news is in the same section as listed the non commercial damages they list the commercial ones.

and its crazy
500-20000 FOR ALL INFRINGEMENTS
voltage cant sue you for 10000 for 3 movies the law does not permit that.
in fact when the new trek comes out you could by the way that is worded go sell 30000 dollars worth turn yourself in and give them 20 grand and walk away laughing

again this is further proof this law should be struck down as that is telling counterfeiters the real harmers the wrong message.

poor folk are cruelly and unusually going to bear the brunt of the force of this law.

now im not a lawyer seek one please, and my views are me also learning as i go too and yea under 14000 income you can get legal aid BUT there are issues when it comes to federal courts and what you can get legal aid FOR. i urge people to check this out

also the small claims courts max was upped 2 january's ago to 25000

also learning that they removed a section that gave federal courts the last say in all matters which is a weird one and i think what they are trying to do is give each province a chance to find its own ways with this law. SO a more conservative province like alberta might go harder on you then , quebec and ontario , primarily a NDP/liberal area.
that part should also be struck down it creates confusion in the law and charter rights usually forbid that and ask for clarity when it comes to a law.

NOW voltage has waived statutory to goto commercial punitive damages so can someone give me
a site to read up on how that all works.

the idea here is to provide at least some knowledge to the users and i think going forward that things like this to help people will mitigate risk and allow us all to better enjoy the larger internet.

it took me an hour t find on google for example the full re-amended full copyright law.
its not nice of a govt to only post the amended bits and i'd argue the charter tells you to make stuff clear , that adds total confusion for any citizen wishing to learn about the laws of our land. I think it is dne on purpose as previous govts did not do that.

Liberals yes would post the changes and then link to the new bill in its entirety.

oh and i bought myself a bluray writer that came with burn software so i can put my own works onto such....funny as heck you need to pay to upgrade to put your own videos on to a disk , basically they shipped me a back up device .....ergo you can burn files but not videos.

Funny thought i'd share that with you all that i prolly will just make videos and such and NOT do any HD stuff and not do dvdr and not do bluray cause of this law ...i actually want people to play with my stuff and enjoy it.

my 2 cents....

oh and one other aspect if some other person uploaded the already cracked dvdr they should not try the anti circumvention bits on anyone ...and marc if ya goto iptv stuff please oh god please dont turn into the big bad wolf on us all and look around for animators and people willing to cheaply make stuff and do a decent quality...

i'd pay for a new thing that has little in league with all thats out there...i'd help it get off the ground as best i could.BUT if you get into iptv are you just a dumb pipe anymore? Will you sue people that download yourstuff? See how it goes....thats a part that it all went wrong with isps....

Grappler

join:2002-09-01
Ottawa, ON
said by funny0:

now im not a lawyer seek one please, and my views are me also learning as i go too and yea under 14000 income you can get legal aid BUT there are issues when it comes to federal courts and what you can get legal aid FOR. i urge people to check this out

it took me an hour t find on google for example the full re-amended full copyright law.
its not nice of a govt to only post the amended bits and i'd argue the charter tells you to make stuff clear , that adds total confusion for any citizen wishing to learn about the laws of our land. I think it is dne on purpose as previous govts did not do that.

As you stated you are not a lawyer and the statements you are making are borderline outrageous, at least when you do make a statement provide the link to support that statement:

Legal Aid in Ontario (a provincial matter), income levels cap at $18K gross for a single person. You are incorrect to state that a person can get Legal Aid for under $14K income, you are also incorrect stating there are issues when it comes to Federal Court, if you wish to help then let the people form there own opinions by also directing them to the appropriate source, in this case:

»www.legalaid.on.ca/en/default.as ··· ault.asp.

#2 - The government did not just post "amended bits" of the Copyright Act, the full act up to date can be found here:

»laws-lois.justice.gc.ca/eng/acts ··· dex.html

And here:

»www.canlii.org/en/ca/laws/stat/r ··· -42.html

Incidentally both links show up on the first page of a Google search.