said by neochu:go read the new copyright law ISPS are given immunity period.
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.