Piracy is a lot like religion and politics. It tends to polarize opinion and get in the way of finding common ground for thoughtful discussion. That's the pattern we've seen in Voltage Pictures' demand for information from TekSavvy about putative pirating of their movies. Clashes between the studio and the ISP have touched off a rancorous debate that has divided even like-minded members of the pro-Internet community.
The single issue that has most divided the pundits' concerns whether or not TekSavvy CEO Marc Gaudrault let down his customers and the public interest by not opposing the Voltage motion from the get-go. Most of the arguments share one principal concern: that opposing the Voltage motion would have been the most effective and maybe only way to protect customer privacy, as well as to ward off future suits of this kind.
A lot of ink has now been spilled on this point, especially in light of the fact that Marc and his lawyers arrived at their decision after considering factors that remain confidential. Nevertheless, some further comment seems to be in order.
Putting privacy in perspective
First of all, I'm no longer convinced that the biggest public interest issue in this case is privacy, a sentiment I know will not win much sympathy. For one thing, I believe Marc did his best to protect his customers' privacy by giving everyone, especially those on the charge list, advance notice despite it not being a legal requirement. TekSavvy has also spent a great deal of time and money weeding out numeric IPs that didn't match an account, in an attempt to protect otherwise innocent customers.
Moreover, people treat their privacy in many different ways, depending on context and the cost-benefit analysis. There's a mountain of evidence, empirical and anecdotal, that millions of North American onliners either can't be bothered to look after their privacy or are eager to trade it for favours from Web merchants and publishers. Another uproar has just hit the news with Facebook's latest assault on its users' privacy. That would be graph search, the social platform's attempt to beat Google at its own game. As a parent, I'm far more worried about my teenage daughter's long-term use of Facebook, whose business model is and always will be premised on invasion of privacy. People are inclined to worry a lot less about their privacy when they can see supposed benefits but can't see the hidden costs, like damage to career or education prospects.
The question I want to ask is not whether privacy is important -- it is -- but rather, whether it's more important than other problems lurking in the Voltage suit. Marc has told me that one of the main issues he's worried about is what will happen to the notice-and-notice mechanism once it becomes law. He would like to see it applied in a way that reduces the burden created by rights owners on both end-users and ISPs. The system might work much better if, for example, notice was applied as a first-line mechanism with no immediate threat of litigation -- especially mass litigation.
More burdens for indie ISPs
Marc, who thus far is claiming $190,000 in costs, is in my opinion quite right to be concerned about the burden on ISPs of the kind created by Voltage. He is not alone in this view. In his closing remarks at the second court hearing, Mr. Justice Mandamin expressed great concern over the prospect of having 1,000 defendants crowding into his courtroom. The Federal Court, along with everyone else involved, has been hit for the first time ever with a mass lawsuit, while the ink on the new copyright legislation, the Copyright Modernization Act, is barely dry.
To put this another way, notice-and-notice might act as a useful deterrent even without the immediate threat of litigation. In Voltage's case, however, that mechanism looks on the basis of their track record like an integral part of its extra-judicial revenue model. Law professor Michael Geist had a comment on this matter in a recent email:
"At this stage, I don't think the decision [not to oppose] has many implications for notice-and-notice, given that those provisions haven't even taken effect yet. There are two big issues at this stage. First, what is the role for ISPs in the face of demands for subscriber personal information. Second, will the court consider that the volume of requests [...] matters when considering the standard to apply on whether to order disclosure of subscriber names."
The new legislation has confirmed the safe harbour status of ISPs when they merely provide the platform over which customers send their packets. But being spared liability for infringement does nothing to address what ISPs are required to do once a rights holder notifies them of alleged infringing activity on their network.
The procedure is costly and time-consuming, and as some have noted about TekSavvy, any involvement in this messy business is bound to alienate some customers. By the way, while we're assessing TekSavvy's performance, let's not forget that Voltage came up here in 2011 to smoke out end-users who had allegedly downloaded The Hurt Locker, and none of the three ISPs implicated -- Cogeco, Vidéotron and Bell -- even showed up in court, let alone objected.
So while we should certainly worry about customer welfare, let's not confine our worries to their privacy. As I have argued in dozens of blog posts over the last three years, broadband customers in this country have plenty of other issues to complain about, including high prices, slow speeds and lousy service, especially when compared to most other OECD countries. Take France, for example. Over there, the leading independent ISP, Free, offers a 100-Mbit/sec fibre connection for about $47. And their bundle includes unlimited calling to 107 countries and 185 TV channels, with no data caps. Eat your heart out, Canada.
Don't let copyright actions undermine competition and choice in broadband
It now looks as though Canadian ISPs will have no entrenched protection from the fast-track, mass litigation practised by Voltage, unless and until a Canadian court determines that this model has no place in our jurisdiction. ISPs also have no guarantee that a presiding judge will award them the costs they request.
Dwayne Winseck of Carleton University has disagreed with me over many aspects of the Voltage case, although in his latest post he compares TekSavvy's approach pretty favorably to what other ISPs have done. He also noted in an email that he too is very concerned about the harm smaller ISPs may suffer if the current system isn't adjusted to account for the Voltage method of doing business: "It needs to be established once and for all that ISPs can't be turned into agents on behalf of copyright claimants such as Voltage."
As Dwayne points out, it is an important copyright policy goal to ensure we have alternative ISPs like TekSavvy: "A more competitive and diverse supply of Internet providers means that subscribers will be less vulnerable to a handful of players being shaken down by copyright claimants for their personal information." After years of the CRTC's half-hearted efforts to create sustainable competition in the residential broadband market, let's not forget the incumbent ISPs still own 93 per cent of the customer base.
While I see no easy fix to these problems, it's crucial we not lose sight of the long-term implications for the overall health of Canada's broadband infrastructure. Ottawa now needs to find ways to ensure that its copyright legislation will not reduce competition and consumer options. The last thing this country needs is a copyright regime under which our independent ISPs have yet another barrier to keep them from developing a solid business and the opportunity to offer a service distinctly different from what the incumbents provide.