Of the many film companies that have tried to turn piracy into profit, Voltage Pictures and parent company Voltage Holdings stand out as some of the most tenacious.
With links to the dark factory of surveillance and regulation of piracy Guarda LeyVoltage is currently suing Virgin Media customers in the UK to recover money while warning that something much worse could happen.
Voltage is also active in Canada, demanding cash settlements from the same type of people, backed by similar evidence, and backed by similar creative legal theories that attempt to hold Internet bill payers accountable for their failure to identify precisely the main offenders.
An order issued by the Federal Court of Canada last week demonstrates that when there is insufficient evidence, a logical assessment of the law can significantly undermine plans for an easy influx of cash settlements. Given the similarities between Canadian and UK law, the order and the reasoning behind it should prove interesting to recipients of the Voltage letter on both sides of the Atlantic.
Background
In 2017, piracy watchdog firm Maverickeye set out to collect the IP addresses of BitTorrent users sharing the Voltage-owned sci-fi movie “Revolt.” Canada has a so-called “notice and notice” regime, so Voltage identified ISPs tied to IP addresses and sent out initial warning notices, which were forwarded by the ISPs to affected subscribers. Second notices were sent after Maverickeye found the same IP addresses sharing the same job a week or more later.
On March 16, 2018, a statement was filed against 110 “Doe” defendants, identified only by their IP addresses. On December 3, 2018, a so-called “Norwich” discovery order was obtained which, like its UK counterpart, required ISPs to disclose the names and addresses of subscribers associated with the alleged infringing activity.
Voltage later called 30 of those internet subscribers the “worst of the worst” after allegedly sharing “Revolt” over a period of weeks to months, possibly to thousands of people. This evidence was supported by an affidavit from Benjamin Perino, who in court documents is described as the former CEO of GuardaLey and creator of the hack tracking software used by Maverickeye.
The fact that Perino currently runs an affiliate based in Cyprus Guardaley Technologies Ltd. is not mentioned in the order and as no defense was filed in the action, once again the mechanics and evidence produced by the Maverickeye software went unchallenged.
Default judgment of voltage demands
Since these “worst of the worst” defendants did not file a defense, Voltage sought default judgment against them. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) was granted leave to intervene, arguing that Voltage should not be able to sue in absentia because it had not done enough to identify the people who had actually infringed.
Judge Angela Furlanetto ultimately agreed that all of the defendants were indeed at fault. However, an examination on the merits must take place before rendering a judgment. Given the undisputed evidence, the judge concluded that portions of the film “Revolt” had indeed been shared online in copyright infringement, but the thorny question remained: the defaulting defendants, identified as ISP account holders and payers bills, were they the real offenders?
Direct infringement and discovery
CIPPIC argued that an Internet subscriber/payer and an Internet user cannot be assumed to be the same person and as such, Voltage did not identify the persons behind the monitored IP addresses at the time. where the alleged offenses were committed.
Judge’s summary of Voltage’s position notes that “there is no technological way to pierce the veil of the internet to determine who was actually using IP addresses at the time the work was offered for download”, which which effectively admits that via an IP address alone, Voltage cannot identify the real counterfeiter. Of course Voltage wouldn’t give up this easily.
The company insisted that since it had provided evidence of recidivism (supported by notices of infringement), the charge should be moved, thus forcing the defendant internet bill payers to refute their association with the offense monitored via their IP address. The judge disagreed, noting that in default proceedings in Canada, all allegations are considered dismissed. The plaintiff must show, on a balance of probabilities, that he has named the correct defendants – the infringers.
CIPPIC said Voltage should have obtained more evidence before seeking default judgment, but Voltage expressed concern about potential privacy breaches. Obtaining all electronic devices (or forensic copies) belonging to all individuals associated with an IP address would be intrusive, as would requests for ISPs to provide detailed Internet activity logs.
In a previous Voltage case, the Court said privacy rights should be violated “in the most minimal way” and, in that case, Judge Furlanetto suggested that written discovery could be used to seek information. about the nature of the system behind an IP address. This may include the type of control the owner of the IP address has over users and devices, the number of users behind an IP address, and the actions taken by the bill payer in response to first and second notices of offense.
“In my view, an attempt must be made to determine the Internet user responsible for the alleged infringement before a presumption can arise that the Internet subscriber is that user or an appropriate adverse inference can be drawn on the basis of the no response,” the judge ordered. bed.
“A direct connection must be addressed by the evidence between the Internet subscriber and the alleged infringing use or sufficient steps taken to draw an adverse inference against the Internet subscriber. A presumption of infringement is not sufficient. On the Based on the actions taken and the evidence filed, I cannot conclude that a direct violation by Default Internet Subscribers has occurred.”
Voltage Relief Plan – “Authorized” Infringement by Bill Payers
Tension settlement actions always seek to maximize pressure on the Internet bill payer. In the UK, their settlement letters state: “This letter assumes that you, as the account holder for the infringing IP address, were the user of the affected device at the dates and times” when the film was been shared.
The letters go on to note that Voltage may sue if it can show on a balance of probabilities that the bill payer was the direct infringer or that the bill payer “authorized or permitted” someone another to infringe Voltage’s rights by using the broadband connection.
The concept of authorization in the UK depends on whether the defendant (in this case an internet bill payer) participated in a copyright infringement committed by someone else in a more only minimal, in that he now bears some responsibility for the violation itself. . The authorization is interpreted broadly, but in Twentieth Century Fox Film Corporation v Newzbin LimitedJudge Kitchin found this authorization does not extend to “a mere authorization, assistance or even encouragement”.
Unlike Canada, Voltage does not send warning notices to UK bill payers. So it’s much harder to say that they knew something about the offense but failed to stop it. However, the warning notice system in Canada does not help Voltage either, because even when these notices have been sent to the bill payer, it is still necessary for Voltage to establish a relationship between the bill payer and the infringer. .
“To establish authorization in this context, in my view, one must consider not only whether the default defendant had knowledge of the alleged infringing activity, but also the relationship and scope control over the user and whether the Internet subscriber had some capacity to prevent the act of concern,” Judge Furlanetto wrote.
GuardaLey’s Benjamin Perino sees things very differently. He thinks home Wi-Fi routers should be password protected and bill payers should configure them with a blacklist to ban specified devices. A whitelist should also be in place to restrict access to specified devices alongside filtering to completely block BitTorrent traffic.
Of course, it’s entirely possible that defaulting bill payers took steps to prevent infringement, but somehow failed. Perhaps, faced with a complete lack of technical knowledge, they warned everyone in the house that if a hack took place, there would be consequences? Maybe the counterfeiter holds the ultimate power in the house, is a violent drunk, refuses to foot the bill, and can’t be reasoned with?
The truth is, Voltage doesn’t know, and the Federal Court finds it problematic. If the film company wants to go the licensing route, they need evidence to prove it, perhaps obtained through some kind of discovery. In the meantime, Judge Furlanetto says there is insufficient evidence to support a finding of infringement by authorization.
Conclusion
In view of the foregoing, three choices were available to the court: to render a judgment by default, to dismiss the action or to order that the action be continued at trial where the plaintiff can prove his case.
Based on the inadequacies of evidence, Judge Furlanetto declined to issue a default judgment against the Internet subscribers. She also declined to dismiss the action because if Voltage can provide proper evidence to identify the offenders (and/or show authorization), he may be able to move his case forward.
With that in mind, Voltage was ordered to hold a case management conference to outline next steps before a trial. Alternatively, Voltage is free to address the evidentiary shortcomings pointed out by the judge and return later with a new motion for default judgment.
Judge Furlanetto’s order can be found here (pdf)
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