Distributel Fights Back Against Motion to Disclose Subscriber Information in File Sharing Case

By Michael Geist

Distributel, an independent ISP with services in Quebec, Ontario, Alberta, and B.C., has fought back in a file sharing lawsuit launched by NGN Prima Productions, opposing a motion to disclose the names of subscribers alleged to have engaged in file sharing. It appears that NGN is using Canipre to identify alleged file sharers, the same company that has supplied information to Voltage Pictures in its case involving thousands of subscribers at TekSavvy. Distributel did not oppose a similar request in November 2012, but says in court documents filed today that several factors led to a change in position when NGN filed another request for more names.

First, Distributel was concerned with how NGN treated its subscribers, demanding a $1500 settlement in a notice claiming that subscribers could face up to $20,000 in damages. Distributel noted the lack of evidence for the claim made by NGN, relying on an expert analysis of BitTorrent to highlight the shortcomings. Moreover, Distributel says NGN is engaged in copyright trolling, citing the misrepresentation in the potential liability (the law now features a cap of $5,000 for non-commercial statutory damages) and the settlement demands that far exceed actual damages.

Second, Distributel argues that NGN failed to meet the requirements for disclosure established in the BMG Canada v. Doe case by failing to demonstrate a bona fide claim. In support of its argument, Distributel points to “numerous errors, inconsistencies, and missing links” in the evidence. Geographic information included in the evidence was often erroneous and there was little evidence about how the information on Distributel subscribers was obtained.  Further, Distributel argues that significant evidence was not provided: no information on how much of the work was copied, no evidence that a substantial portion of a film was infringed, no evidence of which P2P networks were used, and no information on the subscribers’ P2P pseudonyms.

Third, Distributel expresses concern with the targeting of smaller, independent ISPs. This particular case involves two other small ISPs (Access Communications, ACN) and the company argues that pursuing independent ISPs is unfair as it may affect consumer choice for Internet services.

Fourth, Distributel raises privacy concerns, including the lengthy delay from data collection until the time when this motion was raised. Moreover, NGN did not provide evidence that there are no other ways to obtain this information.

Fifth, Distributel cites the Voltage – TekSavvy case for the need for reasonable compensation for the expenses incurred by the ISP.  Distributel says that NGN has not provided for reasonable compensation in the draft order it presented to the court.

Distributel’s decision to oppose the motion points to mounting ISP frustration with file sharing lawsuits that come after the government send clear signals that such actions were unwelcome.  While Bell, Cogeco, and Videotron did not oppose or challenge a case involving Voltage Pictures in 2011, more recently TekSavvy has fought for the right to notify its customers and to allow CIPPIC to intervene in a case involving thousands of subscriber names.  Distributel has taken the next step of reversing a prior position by opposing a motion for disclosure of subscriber names, sending a strong message that it will carefully examine the evidence and motives of rights holders before standing aside in the quest for subscriber information and inevitable settlement demands that follow.

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