03/12/2013 03:20 EDT | Updated 03/12/2013 03:44 EDT

TekSavvy File-Sharing Lawsuit Looking More And More Like ‘Copyright Trolling'


A file-sharing lawsuit working its way through a federal court in Ontario court is the prelude for a “copyright trolling” campaign that could see filmmakers demand thousands of dollars from Canadians they accuse of unauthorized downloading, according to people involved in the lawsuit.

The copyright enforcement group Canipre told Canadian Business magazine that a controversial lawsuit involving filmmaker Voltage Pictures and internet provider TekSavvy was launched to collect subscriber information that would then be used to send letters to internet users, asking them to pay thousands of dollars for their alleged infringement of copyright, or end up being sued in court.

Industry insiders call this "speculative invoicing" and say it's meant to make it easier to recoup losses when large numbers of people violate copyright through file-sharing. Consumers' advocates call it copyright trolling and argue it's little more than a shake-down of consumers, sometimes based on thin evidence of actual copyright violations.

In countries where copyright trolling happens, the cases rarely go to court, as most people who receive the letters choose to pay them rather than risk a legal battle.

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Copyright trolling has been controversial in the U.S., U.K. and other places where it has been employed. Courts have sometimes rejected lawsuits on the basis that they were set-ups for copyright trolling campaigns.

Voltage Pictures, maker of The Hurt Locker, went to court last fall asking that independent ISP TekSavvy hand over names associated with at least 1,100 IP addresses it suspected of downloading pirated copies of their films.

Tech law expert Michael Geist wrote on his blog that the revelation that Canipre is involved in the TekSavvy lawsuit and is helping with the "speculative invoicing" campaign actually weakens the copyright holders' case.

The Canipre admission is important because it is consistent with arguments that the case involves copyright trolling and that the Federal Court should not support the scheme by ordering the disclosure of subscriber contact information,” Geist wrote.

That argument is being advanced by the Canadian Internet Policy and Public Interest Clinic, which has been granted intervenor status in the ongoing TekSavvy case.

“Trolls’ business model involves alleging that consumers are liable for copyright infringement, and demanding compensation under threat of litigation. The compensation demanded invariably grossly exceeds the damages a troll might expect if the troll were to actually litigate and obtain judgement and a damages award. … In CIPPIC’s view, such a purpose is improper and bars the applicant from establishing a bona fide claim,” the group said in a court submission.

The TekSavvy case is not the only one in which a filmmaker is seeking compensation from unauthorized file-sharers. Distributel, an independent internet provider that operates in Ontario Quebec, Alberta and B.C., is currently fighting NGN Prima Productions’ demand that it hand over subscriber information on internet users they suspect of unauthorized downloading.

Distributel reportedly cooperated with NGN Prima at first, but decided to fight the company’s demands after an initial group of subscribers received letters from the filmmaker demanding $1,500 and warning they could face damages of up to $20,000, according to a report at Global News.

As Geist reported, that claim seems to be misleading, as Canada’s new copyright law limits liability for non-commercial infringement to $5,000.

Canipre told the media last fall it had gathered data on one million alleged file-sharers in Canada, numbers that suggest more file-sharing lawsuits could be on their way.

However, Geist notes that future lawsuits could hinge on the success or failure of the ones currently before the courts.

“The Federal Court may think twice before ordering the disclosure of personal information of thousands of subscribers in support of what is now acknowledged to be a speculative invoicing scheme,” Geist wrote.