Mass BitTorrent lawsuits are coming to Canada

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Update: According to Michael Geist’s blog, with the recent coming into effect of the copyright reforms, Bill C-11, there is now a maximum statutory damage of $5,000 for all copyright infringements (not per infringement, but for all infringements), with a minimum of $100. You can read more on his site here.

Until now, mass BitTorrent lawsuits have mostly been limited to the United States and various other European or Asian countries, such as Japan (link), Argentina, Austria, Denmark, Finland, France, Germany, Hong Kong, Iceland, Ireland, Italy, Netherlands, Portugal, Singapore, Switzerland, Mexico, Brazil and Poland (link). However they are starting to come to Canada in a big way (link). Canadians love file sharing and do so with entitlement and impunity. Canada tops “special” US piracy watchlist (link). All of that will likely have to change soon.

Why now?

A copyright holder has recently asked a Federal Court in Montreal to order various internet service providers in Canada to hand over the names and addresses associated with 50 IP addresses which are alleged to have downloaded one of its copyright protected movie. We’ve never heard of this happening in Canada before. (Update: Apparently, similar lawsuits have been launched last year regarding the movie Hurt Locker, you can read more about this on Michael Geist’s webpage here and here. If you don’t know who he is, he’s arguably the most prolific writer about intellectual property issues in Canada. He is a professor at the University of Ottawa and holds the Canada Research Chair in Internet and E-commerce Law). On November 19, 2012, the Federal Court in Montreal granted the copyright holder’s request. The anti-piracy company Canipre says that it has collected over one million Canadian IP addresses from the BitTorrent network in the past 5 months (link).

What’s a mass BitTorrent law suit?

This is how mass BitTorrent law suits work. A copyright holder will collect IP addresses (or hire a company like Canipre to do it for them) from the BitTorrent network of all of the users that have downloaded /uploaded its copyright protected media. The copyright holder will resolve the IP addresses to determine which internet service provider the IP addresses are assigned to. The copyright holder now has a list of internet service providers. They will then ask a court of competent jurisdiction to order the internet service providers to hand over to them the names and addresses associated with the specific IP addresses at specific times (most users have dynamic IP addresses, therefore the time is important). The copyright holder usually doesn’t intend to proceed to trial as it would be too costly. Instead, they typically send out threatening letters to the alleged copyright infringer offering to settle the matter out of court. It could be $2,000 – $10,000 or more. The average settlement in Europe was about $3,000 (link). The most prolific copyright trolls are porn studios. They try to shame the recipients into settling out of court. For example, they may send out a letter like the following:

“Dear John Doe, we are the copyright owners of “Naughty Backdoor XXX Sluts 7” and “Anal Cum Swappers 2” and we have evidence that you have downloaded the aforementioned movies and therefore infringing upon our copyright. If we do not receive a payment of $5,000 within 30 days, we will have no choice, but to file a very public lawsuit against you”.

Or it can be something like:

“Dear John Doe, we are the copyright owners of Justin Bieber’s song “Baby” featuring Ludacris and we have evidence that you have downloaded that song thus breaching our copyright rights. We are prepared to settle this out of court for $2,000 or we will be forced to file a lawsuit against you. Please also see the enclosed judgement where a woman was ordered to pay $5,000,000 in a case similar to yours.”.

Whether or not you’re actually guilty of copyright infringement, some people may be willing to pay the settlement just to avoid the embarrassment of having such a claim (even if false) made public. This is a sort of extortion. Pay us or be shamed in public. This is what happens when “copyright trolls” engage in “mass BitTorrent lawsuits”.

What happens if you don’t pay the settlement offer? They can’t send the police and raid your house can they?

You should ask this 9 year old girl in Finland that question. The Finnish police broke into her parent’s home and took her Winnie the Pooh laptop after her dad refused to pay the settlement offer. The 9 year old girl allegedly downloaded one music album on BitTorrent. (link)

Update: The father of the 9 year old girl settled the matter by paying 300 euros (half of what the copyright holder initially demanded). It looks like if the little girl will be getting her Winnie the Pooh laptop back. Interesting to note, someone reportedly sent the little girl a macbook pro. Nice! (link)

What happens when the police confiscates your computer/laptop?

The police now can take as much time as they want to find evidence on your computer to incriminate you. You may not see your computer for a very long time or you may never see it again.

I’m not worried about any of this. I don’t have anything to hide.

How many laws are there in Canada? If you can’t answer this question, how do you know that you’re not infringing upon any of them? We can assure you that notwithstanding your best intentions, you are not in compliance with every law and regulation in Canada.

I don’t use BitTorrent or engage in any filesharing programs, this doesn’t concern me.

Even if you do not use BitTorrent or any filesharing programs, this can still impact you. Your wireless network may have been compromised or you have an unsecure network. In either case, you may be the target of a copyright lawsuit even if you did nothing wrong. Furthermore, what if your ISP makes a mistake and gives your name and address to the copyright troll instead of someone else’s name? Your ISP assigns each user an IP address for a specific duration. Therefore, if your ISP makes a mistake and thinks that it assigned an IP address to when it didn’t, you can be a target of a mass BitTorrent lawsuit and have your property seized.

No way. My ISP has computers and logs. My ISP wouldn’t make a mistake with which IP address was assigned to me.

Have you ever had a mistake on your cell phone bill? Your cell phone company has computers and logs as well. Under the same reasoning, there should never be a mistake on your cell phone bill. Also, in many cases, your cell phone company is also your ISP. Yikes.

I’m using WPA or WPA2, my wireless network can’t be compromised.

Oh really? Wireless networks encryption protocols are not as secure as you may think. You can read the following articles to get a better understanding. “How to Crack WPA2 WPS WiFi password” (link). “How to Crack a Wi-Fi Network’s WPA Password with Reaver” (link). “Tutorial: How to Crack WPA/WPA2 – Aircrack-ng” (link). “Think Your WPA2-encrypted Wireless Network is Secure? Think Again.” (link). “Battered, but not broken: understanding the WPA crack” (link). “One-minute WiFi crack puts further pressure on WPA” (link). “How I cracked my neighbor’s WiFi password without breaking a sweat” (link). “Wireless are notoriously unsecured and some are not password protected. New attack cracks WEP in record time” (link).

What are your main concerns?

We have many concerns regarding some of the recent court decisions around the world. Firstly, IP addresses are not people and should not be considered as people (link). Also, IP addresses and MAC addresses can be spoofed or faked. Furthermore, as we mentioned above, wireless networks can be compromised. For all of these reasons, we do not believe that a court should order a raid on a private residence based solely on an IP address because 1) the copyright holders don’t actually plan on going to trial 2) the copyright holders don’t actually know who they’re suing as an IP address is not a person and 3) the IP address can be wrong if it’s spoofed or if the ISP made an error.

Raiding a house associated with an IP address is like saying “I want to sue someone living in a certain house, but I don’t know if the person is male or female or how old they are. I don’t know if the person I’m looking for even lives in this house. It could be a neighbor or a friend that once visited the house or it could be a person that broke into the house since the front door is always wide open. I don’t know if the person I’m looking for is dead or alive. Actually, the person that I’m looking for may never have visited this house. This could be the wrong house. It could be a house in another country, but they pretended to be this house. Essentially, it could be anybody. However, I don’t want to have to prove who it is that I want to sue, because I don’t know who it is. Nevertheless, I would like the court to order the police to enter into this house and seize all of the computers in case the person I’m looking for lives in this house. I have no way of knowing if the person I’m looking for lives nearby or only visited this house beforehand or even if this is the right house that I’m looking for, but please grand my search and seizure warrant.” By their ruling  on November 19, the Montreal Federal Court essentially said “Okay, that sounds reasonable”.

Okay, what do you recommend? What can I do?

We will explain in later articles why it may be a good idea and how to setup a VPN and Truecrypt even if you do not engage in any copyright infringing activities. For now, suffice to say that we recommend the following actions:

1) route all of your internet traffic through a VPN that does not maintain logs, preferably pay with bitcoins
2) encrypt all of your hard drives with TrueCrypt
3) secure your wireless routers with WPA2 and leave 1 guest spot open for your friends and family (but you have to set your file permissions correctly)
4) turn off logs on your router.

If you leave your wireless network unsecured, can you be held liable (due to negligence) for other people’s downloading activities?

There have been very few salient cases regarding these issues in Canada. Therefore, it’s very hard to predict. However, there is a pending case in the United States regarding this very issue. It’ll be interesting to see what the US court says. The plaintiff in this case argues that:

“Even if the defendants did not directly download the movies, they had control over the Internet access used for copyright infringement purposes” (link).

There is an interesting paper entitled “Wireless Liability: Liability Concerns for Operators of Unsecured Wireless Networks”. It discusses whether or not you can be criminally or civilly liable for having an unsecured wireless network (link). Here’s an interesting excerpt:

“Criminal liability for the actions of third parties committed over unsecured wireless networks is largely theoretical for the moment; however, civil liability is an increasingly real possibility facing wireless network operators.”

Therefore, it’s still theoretical now, but if it’s deemed illegal to have an unsecured wireless network, Americans can say goodbye to free wifi at Starbucks, McDonald’s, airports, etc.

Interestingly, TorrentFreak published 2 articles entitled “Are You Guilty If Pirates Use Your Internet? Lawyer Says NO” (link) and “Are You Guilty If Pirates Use Your Internet? Lawyer Says YES,” (link). Therefore, it’s 2 articles with different opinions written by 2 different lawyers. Here is another lawyer’s viewpoint on those 2 articles (link).

I’d like to know more about these mass BitTorrent law suits

If you would like to read more about this topic, here are some relevant articles that may interest you. One man had an ingenious defence against such an extortion letter. He claims that porn cannot be copyrighted as it obscene and has no useful art which is a requirement of copyright protection. (link). The major ISP’s in the US have implemented a 6 strike program (link). A few judges in the US are cracking down on these mass BitTorrent lawsuits (link). Virginia man owes $1.5 million for sharing 10 porn films (link). Judge tells copyright troll to put up or shut up on porn lawsuits (link). Trading popular files on BitTorrent? You’ll be spotted within 3 hours (link). Website called “I know what you downloaded” tries to inform users how public your downloading habits are on BitTorrent (link). Biggest BitTorrent Downloading Case in U.S. History Targets 23,000 Defendants (link). Judge sides with porn P2P plaintiff. Appeals court to decide if rightsholders can subpoena 1,058 people in one case (link). Accused of downloading porn, Kentucky woman sues the pornographers (link). Judge rejects copyright trolls’ BitTorrent conspiracy theory (link). Judge blasts personal-injury lawyer for running P2P “shake down” (link). “A massive collection scheme”: Yet another judge slams file-sharing lawsuits (link). BitTorrent users don’t “act in concert,” so judge slashes mass P2P case (link). P2P lawyers score a victory; mass subpoenas can proceed (link). Gay porn’s P2P “amnesty”: cough up $1,000 and you won’t be sued (link). Forget Hurt Locker; P2P lawyers lower sights to Massive Asses 5 (link). Porn purveyors target 13,000 more Does in P2P lawsuits (link). Court to Consider Breaking Up Mass BitTorrent Lawsuits (link). Porn Studios Accused of Screwing Their Fans in BitTorrent Lawsuits (link). Find Out if You’re a Target in the Biggest U.S. BitTorrent Lawsuit Ever (link).

  • Mike

    The netherlands don’t have mass bittorrent lawsuits at all. The law doesn’t force ISPz to give any information at all. So they actually don’t.