Canadian ISP Distributel fights back in file-sharing case

TORONTO – Independent Canadian ISP Distributel is opposing a motion to disclose the identities of some of its subscribers who are alleged to have been involved in file sharing.

NGN Prime Productions Inc. and Riding Films Inc. allege that certain Internet Protocol (IP) addresses may have been involved in copying and sharing of three films, Recoil, Crash Site and Dawn Rider, though peer-to-peer networks.

Distributel provides service to customers in Ontario, Quebec, Albert and British Columbia.

The original statement of claimed was filed by NGN on November 14, 2012 and was later amended adding Riding Films as a plaintiff on January 10.

According to court documents, NGN and Riding Films hired Canipre Inc., a Montreal based company which provides forensic investigation services for copyright owners, to investigate the IP addresses involved in the alleged file sharing.

Canipre was also used by Voltage pictures in its case involving thousands of TekSavvy customers.

But in court documents filed Monday, Distributel is fighting back citing multiple concerns including the targeting of smaller, independent ISPs like themselves.

According to a blog post by Michael Geist, law professor and Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Distributel did not oppose a similar request filed in November 2012, but several factors led to a “change of 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,” read the blog post by Geist.

“Distributel noted the lack of evidence for the claim made by NGN, relying on an expert analysis of BitTorrent to highlight the shortcomings.”

Court documents cite Distributel’s concerns that NGN may be involved in “copyright trolling,” when a misrepresentation of potential liabilities is handed out to customers and the settlement demanded far exceeds any potential damages to the plaintiff.

Recently enacted copyright reform Bill C-11 created a $5,000 cap on potential damages for non-commercial infringement, and some Internet law experts believe fines will be lower when it comes to actions like illegal downloading.

Distributel cites further concerns that NGN fails to demonstrate a bona fide claim, stating that “numerous errors, inconsistencies and missing links” were found in the evidence.

These concerns are included in the evidence submitted by Canipre.

Court documents cite that Canipre’s owner, Barry Logan, used a “proprietary platform that provides effective means to detect unauthorized distribution of movies.” But Distributel notes that the technology is not identified and there is no description of how it works.

Additionally, when Distributel examined the IP addresses listed by city location – provided by Canipre – they found the listed locations were wrong in all but one entry, if the date and IP address were presumably correct.

But Distributel expressed a main concern of being targeted as an independent ISP company.

“The Movie Parties’ choice to pursue independent ISP companies in unfair and adversely affects the highly-competitive market for residential Internet access service. If the public perceives their privacy rights to be diminished due to their purchase of services through a smaller company, then those customers may opt for larger companies,” read the court document.

Both recent examples of file sharing cases, including TekSavvy, have implicated smaller ISPs. However, in 2011, larger ISPs Bell and Cogeco were faced with cases involving Voltage pictures and did not oppose or challenge the cases.