Validation of Legal Privacy Concerns TSI Vs. Voltage
[Links included in original blog post]
Howard Knopf has an excellent post validating a lot of the privacy concerns I have raised with respect to Teksavvy Vs Voltage. While Im not a lawyer, it seems that one of the top copyright lawyers in the country tends to agree with a lot of the concerns Ive raised around privacy and the legal role of the ISPs around copyright law. The first is with respect to ISPs taking a neutrality status. I stated:
Me: Teksavvy went as far as to say they cant get involved in defending due process because the new copyright laws say they have to remain neutral. In fact nowhere in the new copyright legislation does it mention ISPs, service providers, neutral or safe harbor. It was however supported in the copyright consultations that, ISPs should be exempt from copyright infringement liability simply because they act as intermediaries. Basically under notice to notice, this would mean all they had to do was to pass the information from a plaintiff off to their consumers to be exempt from copyright damages.
Knopf backs up this claim stating:
Knopf: There is no reason to believe that the taking of active, reasonable and responsible steps by an ISP to safeguard and preserve its customers privacy would in any way jeopardise the ISPs cherished neutrality status. There is nothing in existing Canadian law or the still un-proclaimed provisions of Bill C-11 that would point to the contrary. What is apparent, however, is that ISPs are subject to PIPEDA privacy law and cannot divulge customers private information in a mass copyright litigation case without the customers consent or a court order. In the BMG decision in 2005, the Federal Court of Appeal (FCA) made it clear that:
Pursuant to PIPEDA, ISPs are not entitled to voluntarily disclose personal information such as the identities requested except with the customers consent or pursuant to a court order.
Defending privacy is in no way whatsoever tantamount to encouraging or even tolerating piracy.
Another quote from my post with respect to how privacy is handled in court:
Me: To explain further; Its businesses that assume any and all legal risk when it comes to their consumers privacy. If a motion to obtain account information is not opposed in court, it sends the message to the judge that the business agrees with the legal merits of the request. Judges very rarely look at the merits of the request unless the businesses oppose that requests, because businesses assume the legal risk if that request is found to be without merit at a later date.
Three points Knopf brings to the table in his latest post I wanted to bring to my readers attention. The first:
Knopf: Indeed, it is conceivable that in some cases there may be a real risk in not challenging the adequacy of the disclosure order material, both in terms of a business and even, conceivably, a legal sense.
Knopf: Flash forward from 2005 to 2011 when Voltage Pictures sought disclosure of customers private information from certain Quebec-based ISPS, one of which, Vidéotron, was actively on side with BMG in 2004. In any event, the ISPs simply took no position and did not oppose the order or even appear at the hearing of the motion. The Federal Court was apparently satisfied with the paper work that was presented and left unchallenged. The proper parties had been served. Understandably, the court granted the order. It is not the courts role nor is the court equipped to conduct its own investigation, which might even require cross-examination, into the adequacy of such material.
Knopf: Our judicial process is based upon the adversarial system. If nobody steps up to the plate to oppose a proceeding, and the paperwork is in order, the Court cannot be expected to conduct its own inquiry as to the adequacy of the paper work. A non-profit organization such as CIPPIC cannot be expected to intervene in every instance of inadequately framed mass litigation disclosure motions simply because others who could or should do so are unwilling or dont care. In any event, it cannot be assumed that an intervener such as CIPPIC would be given the right to cross-examine on an apparently problematic affidavit, if this were in fact the situation.
One of the things this tells me is that my line of questioning around the privacy issues surrounding the Teksavvy case is correct. A lot of my arguments with respect to the law surrounding the privacy concerns are correct. Teksavvy has been front and center on consumer issues. Marc Gaudrault the CEO of Teksavvy is a super nice guy and well liked. I have nothing against Marc or Teksavvy other than how this all came down. Right from the get go, Ive been hammering these privacy issues and rightfully so. Consumers need to be made aware of whats actually happening here.
Its important that those affected by this do have the right line of questioning with respect to independent legal advice as well, to make sure that their rights are being adequately protected by their ISPs. If that turns out not to be the case, than consumers need to take note of this. This could have profound impacts on not just copyright, but by not challenging the legal merits of requests, opens the system up for mass abuse. That in itself should not be acceptable, and questions as to why Teksavvy (of all ISPs) is not questioning this and opening the door to such abuses by the legal arguments they made around neutrality is extremely concerning, not just for consumers, but also the business community as well and their respected ISPs.
Knopfs entire post is excellent and a must read on where current copyright law is right now, and the law surrounding ISPs role in all of this.--
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