Distributel trying to ‘raise the bar’ in rightsholders’ access to ISP customer info

Internet service provider Distributel Communications Inc. is trying to “raise the bar” in the way copyright owners seek Internet subscriber information through the courts, Mel Cohen, Distributel’s president and founder, said in an interview. Distributel, an independent Internet service provider (ISP) with services in Quebec, Ontario, Alberta and British Columbia, is fighting a motion by movie studios NGN Prima Productions Inc. and Riding Films Inc. to compel it to provide the names and addresses of customers associated with the filesharing of three films through peer-to-peer Internet networks. Cohen is raising questions about precision in forensic copyright firm Canipre Inc.'s investigation that associated movie filesharing with 37 Distributel IP addresses. “I guess what we’re trying to do here is establish a higher standard of what we would expect for data that could be used for the purposes,” he said, questioning, for instance, what percentage of the movie files the filesharers may have had in their possession at the time the IP address was connected to the transmission. “That’s the kind of thing we’re after here. Raising the bar a little.” NGN and Riding are seeking the names of the customers associated with Distributel IP addresses that have copied and distributed the films Recoil, Crash Site and Dawn Rider, according to court documents. A Federal Court document filed by Distributel, dated Feb. 7, said the studios hired Canipre, a Montreal-based company that provides forensic investigation services to copyright owners, to track movie filesharing using BitTorrent clients and to identify IP addresses. In the 69-page court document, Distributel said an IP address can be found though it will not identify a specific individual or a specific computer. One IP address can be used to create a wireless network shared by multiple users in a household, office, or an Internet coffee shop, it said. In the court filing, Daniel Puckett, vice-president and chief information officer at Distributel, said Canipre identifies cities associated with IP addresses though “only one of the IP addresses of Distributel’s DSL services were assigned to a customer account in the listed ‘city.’” The addresses may have been correlated at one point but are not now, he said. Distributel argues that, for digital subscriber line (DSL) or dialup Internet customers, a precise date and time are needed to confirm a user's identity. “As such, it is not analogous to a driver’s licence, a Social Insurance Number, or a fingerprint,” Distributel said in the court filing. “On the contrary, an IP address can be used as a shared component to access the internet for multiple users.” Cohen said the company is also raising questions about the time sources used in Canipre’s IP address tracking. “They didn’t give any indication to the affect, or as to how their clock was synchronized with any kind of universally accepted time source,” Cohen said. He said precise time information is necessary for Distributel to provide customer information to the court, and that Canipre's method acknowledges the universal time clock though there’s no way of knowing whether it correlates with Distributel’s time. The company said computer clocks can drift and “only if Distributel knows the exact date and time differential between the clock on the computer used at Canipre and the clock used by Distributel could an accurate correlation be made.” Identifying customer information associated with IP addresses and file transfers is also difficult because the company only maintains addresses and time logs for a limited period of time, he said. “These particular servers, we don’t really worry about,” he said. “It’s not like they’re for billing software.” Cohen added that Canipre did not determine how much of the file the filesharer had. Through BitTorrent protocol “have messages,” he said, flags will indicate how much of a particular file a user has in their possession. “If you’re alleging that someone has violated your copyright, there’s been no committed unless they actually have a substantial part of the work in question,” Cohen said. “If you don’t bother to report that, how can you allege there was a substantial part of the work that was copied inappropriately?” Fifteen seconds of a two hour movie is not a “substantial” part of the work, Cohen said, speaking hypothetically. “There’s just so little evidence given that, to release the identities based on that evidence, would be really unfair to the clients in light of what they might face,” Cohen said. “We have a fair idea now of what they might face, because we’ve seen a letter that one of our clients received from an earlier motion and it’s an offer to settle out of court for $1,500.” The movie studios can use the customer information, if granted, to seek damages or settlements under the Copyright Act. As amended by Bill C-11 this year, the Copyright Act says a single movie filesharer could be sued for “non-commercial” statutory damages ranging from $100 to $5,000 “with respect to all infringements involved in the proceedings.” The legal strategy of pursuing filesharers individually for copyright infringement typically involves settlements worth as much as a few thousand dollars each. Fearing a court battle, filesharers will generally settle with the studios out of court, as has been the case in the United States. Los Angeles-based Voltage Pictures LLC is involved in a separate case with small ISP TekSavvy Solutions Inc., which has has also expressed concerns about the request for identifying information for 2,215 TekSavvy customers whose IP addresses were linked to filesharing. Michael Wickstrom, manager of royalties with Voltage Pictures, said in November that illegal downloading costs the studio hundreds of thousands of dollars in lost revenue for a single small-scale picture or millions of dollars for a blockbuster. He said the court action against TekSavvy was part of an upcoming campaign in Canada to send a message to filesharers in the country. The Canadian Internet Policy and Public Interest Clinic (CIPPIC) last week won intervenor status in the Voltage case, and has said it will raise arguments about the legal test that should apply in the disclosure of Internet customers' names when subject to “unproven allegations by plaintiffs.” Distributel said an order for its customer information based on the studios’ evidence “would result in an unjustified violation of the privacy rights of Distributel customers.” It's also a case that could impact the businesses of small Internet providers, the company said. “Should the notion become widespread that customers of independent ISPs are more likely to be targeted for disclosure, it could negatively impact the ability of independent ISPs, already fighting against much stronger competitors, to attract customers,” Distributel said. NGN Prima and Riding Films did not respond to requests for comment by deadline. In an emailed statement, Barry Logan, principal consultant at Canipre, said it would be improper to discuss matters before the court. “While Distributel has made expert-like assertions, I expect that we will have the opportunity to show the validity of their assertions in due process,” Logan said. In reference to Distributel's arguments about subscribers' locations, he added: “The accuracy of geo-profiling is irrelevant to the issues being examined as many of the geo-profiling databases source their data from a variety of providers … It is simply a point Distributel wishes to make known to bolster their claims.” A hearing is not yet scheduled for the Distributel case, which is being heard at the Federal Court in Montreal under docket No. T-2062-12. The TekSavvy case is being heard by the Federal Court in Toronto under docket No. T-2058-12. —With reporting by Danika Grenier at dgrenier@thewirereport.ca and editing by Simon Doyle at sdoyle@thewirereport.ca

Distributel trying to ‘raise the bar’ in rightsholders’ access to ISP customer info

News | 02/19/2013 7:29 pm EST

To keep reading, get a free trial.

Already a Subscriber?

Reuse & Permissions

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us