MONTREAL – “Technological advances, including the Internet, are a significant benefit to society but technology should not be employed as a tool to obliterate the privacy rights our society also deems so important.”
So says the Statement of Facts submitted by independent ISP Distributel opposing a January motion filed by movie production companies NGN Prima Productions and Riding Films who say some of the customers of the ISP have been illegally downloading and copying three different films, violating their copyrights.
The ISP is opposing the film companies’ demand that it turn over personal information of over two dozen of its customers which NGN and Riding allege are tied to IP addresses that may have been involved in unauthorized copying and sharing of the movies Recoil, Crash Site and Dawn Rider, three straight-to-video titles released in 2011 or 2012.
According to Federal Court documents, back in November of 2012, Distributel was ordered by the court to disclose the names and addresses of customers associated with 27 different IP addresses. At that time, the company didn’t pay much attention to the motion and the subsequent court order (which are commonplace for ISPs) and provided four names associated with 11 of the IP addresses while letting the court know that the rest were unknown to them as they were allocated to Distributel as third party internet access providers so they could not identify them without the network owner (in this case, a cable company).
In December, says an affidavit from Distributel vice-president and CIO Daniel Puckett, one of the customers Distributel identified received a letter from NGN saying the customer could be liable for penalties of up to $20,000 for his unauthorized copying of Recoil, but the company also included an offer to settle for $1,500. “The letter caused us at Distributel to have some concern as to the Plaintiff’s fair treatment of the John Doe,” said Puckett in the affidavit. “When we examined the information provided in the Plaintiff’s motion, we saw no evidence that a complete copy of movie was ever in the possession of the John Doe. Nor any evidence that the John Doe’s computer exchanged any data with any computer other than that of the Plaintiff.”
So, when NGN, joined this time by Riding Films, filed this similar motion in January seeking more names to go after from Distributel, Access Communications and ACN Inc., Distributel decided it was time to intervene, “because we realized what we were dealing with,” company president Mel Cohen told Cartt.ca in an interview.
The letter to the customer threatening a $20,000 penalty, according to Distributel, is confusing and misleading, since the recent changes to the Copyright Act remove the potential for a $20,000 penalty for individual consumers. Prior to the passage of C-11 on November 7, individuals could face damages anywhere from $500 to $20,000 for such copyright violations. However, C-11 set a range of damages for individuals to be set somewhere between $100 and $5,000. The $20,000 limit remains for businesses copying for commercial purposes.
“That letter was misleading, or at least confusing,” added Cohen. “It talked about a $20,000 limit which was in the old legislation and the letter was sent after the new legislation was already proclaimed into effect, which only proscribed a $5,000 limit, so why are they even mentioning $20,000?”
“And then it offered to settle out of court. $1,500 for downloading a copy of a made-for TV movie that you could record on your PVR for nothing?” asked an incredulous Cohen. Plus, there are myriad other issues such as out of whack computer clocks that make proper identification of downloads more difficult – and open wireless networks which could mean an identified customer has been victimized by someone using his Wi-Fi network to illegally download movies. As well, an IP address doesn’t identify a particular device doing the downloading either, he added.
What this letter looked like to Cohen, was a new business model, where the courts are used to boost revenues for film companies. “We figured we better do something so that this doesn’t become a viable business model in Canada,” he explained.
What’s also curious, says Distributel, is that the film companies seem to be going after just independent ISPs, not the big ones. The NGN/Riding motion it is opposing asks for customer information from just it, Access (the cable co-operative serving Regina) and independent ISP ACN of Montreal.
Earlier this year, customers of another independent ISP, TekSavvy, were also targeted by a different production company, Voltage Pictures. These court cases and the subsequent publicity, could certainly damage the growth of independent ISPs. “Distributel is concerned with the (film companies’) apparent selectivity. Motions for disclosure of confidential customer information have been well publicized and will likely continue to be so,” reads the company’s Statement of Facts. “Should the independent ISPs appear to be disproportionate targets for disclosure motions, it could negatively impact the ability of independent ISPs to compete in an already tough market.”
The motion was supposed to have been heard on Monday, February 11th, but it was adjourned at the request of NGN and Riding Pictures. No new date has been set. Cartt.ca sent an e-mail to the lawyer representing the film companies seeking comment but that that query has yet to be answered.
