Copyright Trolls Get Bad-Tempered Cross-Examination Over File-Sharing Evidence
Posted: 30 Jun 2013
After some success in the United States, movie company Voltage Pictures exported their pay-up-or-else anti-piracy scheme to Canada. So far it hasn’t been an easy ride.
The company is currently targeting around 1,100 subscribers of Ontario ISP Teksavvy but before they get their hands on their personal details Voltage’s anti-piracy company Canipre was required to answer a few questions.
Earlier this month the Canadian Internet Policy and Public Interest Clinic (CIPPIC) were given the opportunity to cross-examine Canipre, and a bad tempered affair it was too. Present were Canipre owner Barry Logan, his/Voltage’s lawyer James Zibarras, Teksavvy lawyer Nicholas McHaffie and David Fewer for CIPPIC.
The examination began with Fewer asking Logan a few questions about his background and education, then turning to his company.
“Can you describe the ownership structure of Canipre?” Fewer asked.
“That’s irrelevant,” said Zibarras.
Most subsequent attempts at learning anything about the company’s structure were met with refusal to cooperate ordered by Zibarras. In fact, throughout 87 pages of transcript covering the case and Canpire’s business, Zibarras ordered Logan to say nothing a total of 34 times, even down to the number of employees the company has.
It appears Canipre were present to say what they were obliged to, and not a single word more. Even on Canipre’s actual business with Voltage the anti-piracy company was prepared to say little.
“This strikes me as an excellent way to drum up business. You identify infringing content on the Internet and take that evidence to potential clients. Is that an activity that you’ve undertaken?” said Fewer. “Is that an activity that you’ve undertaken with respect to Voltage in this lawsuit?”
“Don’t answer that,” Zibarras told Logan.
With nine refusals down and 25 more to go, the discussion soon turned to Canipre’s evidence – the IP address. Over what should be a straightforward question – of whether an IP address actually identifies a person – turned into a messy back and forth, with Fewer trying to pin down the reality of the situation and Zibarras trying to protect his clients’ interests.
“Well, I would suggest that I’m merely trying to acknowledge what I wouldn’t have thought was a controversial point, that a subscriber is distinct from an Internet user, from a user of equipment,” said Fewer of Logan.
“That’s an argument. If there’s a specific if he has specific knowledge about a particular user that you want to ask him about that’s fine, but you’re putting an argument to him,” said Zibarras.
Finally, though, Fewer’s point was grasped for the basic point it was trying to make.
“What you’ve attested to is that Voltage will be unable to determine the identities of those persons who are distributing their copyrighted works,” Fewer said.
“Right,” said Zibarras, “because all we have is an IP address.”
Moving on, things started to get very interesting. Canipre admitted that it does not operate its own forensics systems “under its custody or care” but uses those of a third party under license. But questions as to the nature of those system were met with hostility.
“Some people like [those] you’re trying to protect through your intervenor status would be very interested in that information to try and launch cyber-attacks on the software that’s been threatened many times already since this litigation began,” Zibarras said.
“Well, I’m going to object to that characterization. In no way am I here to protect people launching cyber-attacks, and I resent the implication that that would be the case, Mr Zibarras,” responded Fewer.
“Well, have you read your website?” Zibarras retorted.
“I wrote a good chunk of it, yes,” quipped Fewer.
With tensions mounting, some details of the anti-piracy monitoring system were revealed. According to Logan the system works by “handshaking” with other torrent clients in a swarm. It then grabs a single 16 Kb data packet of allegedly infringing content and stores that as evidence. Logan denied that the system ever distributed any data.
Fewer then turned to the system’s operators, Guardaley, and a surprise revelation.
“You’re not, I understand, familiar with the judgment in Guardaley Limited v. Baumgarten Brandt, is a judgment of the 3rd of May, 2011. German case, case number 16055/11?” questioned Fewer.
“German case?” Zibarras responded. “German case,” confirmed Fewer.
“That’s a case in which Baumgarten Brandt had entered into a relationship with Guardaley, filed a suit after discovering that Guardaley was aware of flaws in its technology, but that Guardaley had refused or chosen not to disclose those flaws to Baumgarten,” Fewer added.
Zibarras and Logan weren’t aware of a few other things either, including that the court found that the Guardaley software “identifies people who neither upload nor download”, and “operated as a honeypot.” Then a killer:
“And you are not aware that that court found that Guardaley does not indicate how it identified each IP address, so there’s no way to discern actual infringers from the innocent?” Fewer asked.
“No…I….No,” said Logan.
Tensions were increasing and the refusals to answer questions came more and more frequently, with the previously quiet Teksavvy lawyer objecting at one point when Zibarras described Teksavvy subscribers as infringers, even though it had been established that subscribers were not necessarily infringers.
Finally, Fewer turned to the Voltage lawsuits that were withdrawn after the company had already obtained alleged infringers identities. Had Voltage used the litigation process as a tool to obtain settlements?
“We’re now so irrelevant we’re dealing with other litigation. We’re not even in this litigation; we’re dealing with other litigation. That’s how far the net of relevancy’s been cast, Mr. Fewer. If that’s it, we’ll call it a day,” Zibarras said.
END
The full transcript is available here : (.pdf)
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