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New Wave of Canadian FileSharing Lawsuits Hits Roadblock

By Drew Wilson

Late last year, Canadians were treated to news that an anti-piracy outfit working on behalf of Voltage media was gearing up to sue Canadians by the millions for the downloading of copyrighted movies on BitTorrent. While those operating on the side of the plaintiffs of the case practically insinuated that going through the courts was merely a formality and that the jig was up and a million users will be hearing from lawyers about possible litigation, that formality turned out to be an increasingly large roadblock in the path to mass litigation.

When news spread that there was the possibility of a mass flood of litigation against alleged copyright infringers over the Internet, some took the anti-piracy efforts comments to their word. “Canada prepares for crackdown on BitTorrent movie pirates” wrote Global News. “Things are looking a little scary for Canadian BitTorrent users” wrote wrote ZeroPaid. “Will Canadians feel compelled to pay? We may soon find out.” wrote TorrentFreak. With comments like that, it would be no surprise that some would think that a massive litigation campaign was going to happen tomorrow and that the courts have already had their say in the matter. Not so – at least, a flood of lawsuits will not happen tomorrow and the courts aren’t done hearing arguments in the original TekSavvy case – the case that sparked the fears in the first place.

One observer on the case wrote a summary of the case (via Michael Geist) recently. If anything it all, it shows that the courts have not, in fact, had their final say on the matter contrary to the numerous reports late last year. The legal arguments in court are, in fact, still happening.

Recently, CIPPIC (Canadian Internet Policy and Public Interest Clinic) wanted to take part in the case and offer expert guidance for the courts. They argued that their years of experience with legal matters including privacy and technology as well as their courtroom experience make them qualified to partake in the proceedings. The plaintiffs disagreed arguing on numerous grounds including saying that they waited until the last minute to ask, that CIPPIC was conspiring with TekSavvy and that the case shouldn’t take so long. Unfortunately for plaintiffs, the judge disagreed and allowed CIPPIC time to build their case, agreeing with the notion that this is a delicate case that should not be rushed.

With TekSavvy saying that they had already spent about $190,000 in this whole ordeal and the overall concerns for privacy of the users in this question, the case seems to echo the one back in 2005 when record labels first attempted to bring filesharing lawsuits to Canada. While record labels hoped that it would be an open and shut case so they could do to Canadian citizens what they had been doing to their US counterparts, the case, it turned out, wasn’t that simple. For one, there were concerns for the privacy of the individuals. Canada, after all, has built a reputation for having strong privacy laws. For another, there was the costs associated with getting a users information based on IP address. ISPs, at the time, argued that it costs money to have an employee track down the IP address, associate IP address with the time given, then look up the customers information. That could be taken as suggesting that record labels are unfairly putting a new cost of doing business on ISPs and a strong case could be made that the record labels should bear that cost. Ultimately, the case for the record labels collapsed and the file-sharing lawsuits never came to be.

While the case in the Voltage/TekSavvy is not yet settled, it is far from over. There are plenty of possible outcomes here. There could, after much delay, be the opening of the floodgates for file-sharing lawsuits. On the other side of the coin, there could be a repeat of what happened in 2005 where, once again, file-sharing lawsuits are stopped dead in its tracks. So, unless you are one of those who have received notice in this case, mass Canadian file-sharing lawsuits are not yet happening.

Drew Wilson on Twitter: @icecube85

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