Motion Record of Distributel Communications Limited

Court File No.
: T-2062-12
FEDERAL COURT
BETWEEN:
NGN PRIMA PRODUCTIONS INC.
AND RIDING FILMS INC.
Plaintiffs
-and-
JOHN DOE AND JANE DOE
Defendants
MOTION RECORD OF DISTRIBUTEL COMMUNICATIONS LIMITED
(Response to motion for leave to conduct examination for discovery of non-party)
FASKEN MARTINEAU DuMoulin LLP
Barristers and Solicitors
Suite 1300, 55 Metcalfe Street
Ottawa, ON KIP 6L5
Gerald (Jay) Kerr-Wilson (LSUC# 41507H)
Marisa E. Victor (LSUC# 52065B)
Tel: 613-236-3882
Fax:613-230-6423
Lawyers for the Distribute! Communications
Limited
TO:
The Administrator
Federal Court
Thomas D' Arcy McGee Building
90 Sparks Street, 5th Floor
Ottawa, ON KIA OH9
AND TO:
Me Greg Moore
2200-2000 McGill College
Montreal, QC H3A 3H3
Lawyer for NGN Prime Productions Inc. and Riding Films Inc.
AND TO:
Access Communications Co-operative Limited
2250 Park Street
Regina, SK S4N 7K7
AND TO:
ACNinc.
1100 Ave. des Canadiens-de-Montreal, Suite 450
Montreal, QC H3B 2S2
Tab
1.
2.
3.
4.
5.
6.
7.
8.
A.
B.
TABLE OF CONTENTS
Document
Affidavit ofDaniel Puckett, Sworn February 7, 2013
Exhibit A to Daniel Puckett Affidavit - Customer Letter
Exhibit B to Daniel Puckett Affidavit- CRTC Data
Affidavit of David Zvekic, Sworn February 7, 2013
Written Representations
Excerpt from the House of Commons Debates, Hansard, October 18, 2011
Industry Canada Fact Sheet on Copyright Remedies, October 26, 2011
Copyright Act, (RSC, 1985, c. C-42), s. 38.1
PIPEDA s. 3, 5, 7(3)(c), 8(8) and s. 28
Rule 238(3)(d) of the Federal Court Rules
Court File No.: T-2062-12
BETWEEN:
FEDERAL COURT
-and-
AFFIDAVIT OF DANIEL PUCKETT
Sworn February 7, 2013
I, Daniel Puckett, ofthe City of Toronto, MAKE OATH AND SAY:
Background and Qualifications
Plaintiffs
Defendants
1. I am Vice President and Chief Information Officer (CIO) of Distribute}
Communications Limited (Distribute!). I have been employed by Distribute}
since 1990 and have personal knowledge of the matters herein.
2. Within this affidavit where I refer to "we" or "Distribute}" I refer to myself or
staff under my direction whose duties and performance I have personal
knowledge of.
3. Distribute} has been in business since 1988 and has provided Internet access
services since 1997.
0001
4. As CIO of Distribute! my responsibilities and day to day activities include:
a. reporting to the Management board;
b. providing technology vision and leadership in the development and
implementation of Distribute! corporate j affiliate wide Information
Technology (IT) and Information Systems (IS); and
0002
c. providing vision and leadership in the development and
implementation of Information & Assets, Corporate Security and the
Prevention of Wrongful Loss Systems, and in certain cases regulatory
compliance.
5. As Vice President and Management Board Member of Distribute!, I am called
on to lead projects or perform tasks that may be unrelated to IT /IS/Security
in general. Such projects or tasks may involve other corporate management
or staff in a variety of roles.
6. As Director of various Distribute! affiliates or subsidiaries (Xinflix Media,
Acanac), I am called upon to provide direction and to oversee the operations
of identified entities and to perform the required duties of that office.
7. I also directly supervise and manage several departments and groups that
are responsible for Strategic and Tactical Planning, Development, Evaluation
and Coordination of IT /IS systems and services in accordance with objectives
as defined and prioritized by the Management Board.
a. IT /IS Systems include, but are not limited to, the Systems and
Processes in place that provide business with the tools of conducting
business. It includes workstations, telephones, cell phones, LANs,
W ANS, firewalls, routers, data storage, data retrieval, data archiving,
data back ups, portable data devices, printers, fax machines, scanners,
commercial software, custom software, support contracts, suppliers of
services, web servers, email communications, ticketing systems,
voicemail, call queuing, document management, web services, billing
systems, costing systems, invoicing systems, and accounting systems.
8. Additionally, I am responsible for the security of company Information &
Assets and the Prevention of Wrongful Loss and Security systems including
Physical Plant Security, Electronic Data Security, Physical File Security,
Building Security Liaison, and Security staff.
a. Wrongful Loss includes theft of equipment, services, unauthorized
access, non-ordinary business exposure to liability such non-
compliance with regulations and standards, especially regarding 911,
and issues of safety and fraud.
9. Within all these areas my responsibilities include:
a. Approve, coordinate and control all projects related to selection,
acquisition, development and installation of IT /IS systems for
corporate I affiliates.
b. Develop and maintain corporate policies and standards aimed at
maximizing effectiveness and minimizing costs related to the
acquisition, implementation and operation of IT /IS systems.
c. Develop, monitor, and approve annual operating and capital budgets
for IT /IS and other responsible areas as required
0003
d. Maintain knowledge of current technology, equipment, prices and
terms of agreements. Develop the technology vision and planning
process that will regularly evaluate new technologies and recommend
changes.
e. Maintain problem logs, documenting system errors or defects.
f. Develop, communicate and enforce policy and procedures to ensure
the integrity, security and privacy of information entrusted or
maintained.
g. Ensure that all IT /IS systems and networks operate according to
internal standards, external compliance standards, regulatory
agencies and legal requirements.
h. Ensure that appropriate levels of staff are available to support and
maintain the corporate I affiliate IT /IS and other systems.
10. Further, I have been engaged in computer software design for 34 years, since
1978 coinciding with the general availability of personal computers. I
possess the knowledge and skill to write software in several languages
including but not limited to C, C++, Basic, Delphi, Visual Basic, SQL, Bash, Perl,
PHP as well as have developed in Object Oriented Programming, Real-time
programming, Multitasking I Parallel programming and Finite state machine
modeling environments.
11. I possess the knowledge and skill to develop and operate in several Internet
and Communication standard environments including but not limited to:
Integrated System Digital Network (ISDN) Q.91, Transport Control Protocol 1
Internet Protocol (TCP /IP), User Datagram Protocol I Internet Control
Message Protocol (UDP /ICMP), Advance Intelligent Network (AIN) Bellcore
GR 1298; FR15, Transaction Capabilities Application Part (ss7) TCAP, Voice
over IP I SIP communications.
12. I have attended numerous process improvement and technology training
courses in Directing, Controlling and Managing projects; Object-Oriented
Analysis and design; Voice on TDM and IP Networks; Voice in IP networks;
Network Design; and Security.
IP Addresses
13. For the purposes of this affidavit, I use the term IP address to refer to a
numerical identifier assigned to a computer or computers in order to permit
them to communicate information over a network using the Internet
Protocol (IP).
0004
14. An IP address does not refer to a person. It is not analogous to a driver's
licence or a Social Insurance Number or an email address, which usually refer
to a specific or single person. In normal usage a single IP address may be in
use by multiple persons, be they sharing a household network, an office local
area network, wireless Internet coffee shop, or not in use by any person at
all.
15. Distribute! offers Internet connectivity to its residential end users through 3
separate technologies. The first technology used is dial access also known as
"Dial-up Internet" (DA) using an analogue modem operating on a standard
phone line. This method of communication occupies the telephone line
during data transmissions and as a result, the telephone line is not available
for any voice telephone calls.
16. The second technology is Digital Subscriber Line access (DSL). Under this
method Distributelleases connections to the customer's premises on
telephone lines that the telephone company has connected to special
equipment that allows the carriage of high speed data while simultaneously
allowing the telephone line to be available for ordinary voice telephone calls.
Distribute! has lease arrangements with local telephone companies such as
Bell Canada or Tel us Communications.
17. The third technology is Third Party Internet Access (TPIA) over cable. Under
this method Distribute! leases connections to the customer's premises on the
local cable television company's lines. These lines have been connected to
special equipment that allows the carriage of high speed data while
simultaneously allowing the line to be used for television signals as well.
Distribute! has lease arrangements with several local cable television
companies such as Videotron, Rogers, Cogeco, and Shaw.
18. In order to facilitate Internet connectivity, Distribute! reserves certain blocks
of IP addresses for use by its DSL Internet customers; certain blocks for use
by its cable Internet customers served under TPIA agreements; and certain
blocks for use by its DA Internet customers; and finally other blocks for its
internal and corporate use.
0005
19. In the cases of DSL and DA these addresses are assigned using a local pool
method where the customer's equipment provides a set of access credentials
and if correct, Distribute! equipment issues an available IP address from a list
of unused IP addresses. In the case of TPIA, the cable company assigns an
available IP address using the Dynamic Host Configuration Protocol (DHCP).
20. Both methods of address assignment, local pool and DHCP, result in any
particular connection receiving any available IP address that has been
reserved for that type of connection. It also results in any particular IP
address being assigned to multiple customers' computer equipment over a
period oftime. Party 1 may turn on his computer equipment and be assigned
IP address A which he then uses while accessing the Internet. He may then
turn his computer equipment off and back on and be assigned IP address B.
One moment later Party 2 may turn on his computer equipment and be
assigned IP address A
21. Where the IP address has been reserved for use by DSL or DA services,
Distribute! is able to identify the customer account which is associated with
that IP address if Distribute! is provided with the exact IP address, exact date,
and exact time. This is the case unless Distributel's information has been lost
or purged. Distribute! purges records when they are no longer required for
its business purposes. Distribute! does not use this information for billing
purposes.
22. Where the IP address has been reserved for use by cable Internet services,
the IP address assignment is performed by the TPIA operator. Distribute! is
able to identify the cable operator that performed the assignment but does
not know which customer account is associated with which assignment. Only
the TPIA operator has this information. That TPIA operator should be able to
identify the customer account which is associated with that IP address if it is
provided with the exact IP address, exact date, and exact time, unless the
TPIA operator's information has been lost or purged.
Accurate Time
23. I have reviewed the Exhibit 'A' referred to in the Affidavit of Barry Logan. In
that Exhibit I observe a column labeled "HitDateUTC." I believe this entry
indicates a timestamp created by the computer operated by Barry Logan
expressed in Coordinated Universal Time (UTC) when it detected the IP
address given in the column labeled "IP Address."
24. UTC is a standardized time zone and time most closely resembling Greenwich
Mean Time (GMT) except that GMT is not precisely defined. UTC is based on
International Atomic Time which is the absolute standard by which clocks
may be measured against for accuracy.
25. Computer clocks drift. They can drift from their set time due to temperature
fluctuations, electrical current flow variations and magnetic interference
from other components. I have personally observed clocks on high quality
main boards lose or gain 2 minutes in one hour of operation As a result,
computers that generate critical timestamps are routinely configured to
constantly check their time against a known to be accurate time source. The
time sources are called Time Servers and use the Network Time Protocol
(NTP) to provide accurate time to requesting machines.
26. Distribute! has not routinely considered the Radius equipment logs, which
we employ to create logs that are used in the correlation of an IP address to a
customer account, to be critical. As previously stated, Distribute! does not
use these logs for billing purposes. We know that we have a routine drift,
between the 4 machines that can generate such records, to vary in time by as
much as 2 seconds from accurate time sources.
2 7. Only if Distribute! knows the exact time differential between the clock of
Barry Logan's computer and the clock of Distributel's DHCP services would
we know how the timestamp indicated in the column "HitDateUTC" relates to
Distributel's records.
28. No information as to the clock synchronization state at the time of creation of
the logs in Exhibit "A" has been provided. Without this information
Distribute! is not able to reliably identify the customer account assigned that
IP address at the time of the log's creation.
Geographic Region
29. In that same Exhibit "A", I observe a column labeled "city", which in Barry
Logan's Affidavit, paragraph 23 is described as "a particular geographic
region" of the IP address that he has 'tracked' to a peer and a particular ISP.
30. I can confirm that at the 'HitDateUTC'listed in Exhibit "A", only one of the IP
addresses of Distributel's DSL services were assigned to a customer account
in the listed 'city'.
31. It is possible that at a different time these IP addresses were all assigned to
customer accounts in those cities since, as previously stated, Distributel's IP
addresses are frequently assigned from one customer account to another.
Retrieving customer information
32. The steps required to identify a customer name and address in association to
an IP address include sequentially querying and examining the results of four
Radius servers, one IP address allocation database.
0006
33. The queries, and the analysis of the results of the queries, must be performed
by a trained technician. The results of his work must be re-verified by a
separate independent set of queries performed by a separate and equally
trained technician.
34. The process above results in: no information found; a set of authentication
credentials; or an indication that the IP address is allocated to a particular
TPIA cable operator.
35. This result is then passed on to a separate staff member in the Privacy Office.
This trained staff member will perform queries against one or more of
several customer administration systems. After analyzing the results of
these queries, this staffmemberwill have an established hypothesis ofwhich
customer was associated with the provided IP address at the date and time
provided. The process is then repeated to ensure accuracy and consistency in
the results.
36. Once the Privacy Office is satisfied that the retrieval was performed in a
manner consistent with the policies and practices approved by me, then that
information may be provided to the requesting agency or party.
Prior Motion
37. On November 14, 2012 Distribute! was notified of a Motion to be heard by
the Federal Court on November 19, 2012 to order the disclosure of
information, specifically the customer names and addresses associated with
27 IP addresses. At that time we did not oppose the Motion as it had been
standard practice for Distribute! to rely on the Court to protect the privacy
rights of the individual.
38. On November 21 we received the Court order requiring the disclosure of the
customer names and addresses associated with 27 IP addresses. On
November 22 Distribute! provided 4 names associated with 11 of the IP
addresses and an explanation that the names and addresses of 17 of the IP
addresses were unknown to Distribute! as the IP addresses were allocated to
TPIA providers.
39. Subsequent to the release of the information, on December 8, 2012, one of
the customers included in the 4 above contacted our Privacy Office. He was
seeking assistance in defending himself from the demands of a letter that he
received from the Plaintiff. In that letter the Plaintiff provided notice to the
John Doe that he could face penalties of up to $20,000 and that the Plaintiff
has evidence that the John Doe had made an infringing copy of the movie
Recoil. The Plaintiff offered to settle with the John Doe in exchange for
$1500. The letter is attached as Exhibit A to this affidavit.
0007
0008
40. The letter caused us at Distribute} to have some concern as to the Plaintiffs
fair treatment of the John Doe. When we examined the information provided
in the Plaintiffs Motion, we saw no evidence that a complete copy ofthe
movie was ever in the possession of the John Doe. Nor any evidence that the
John Doe's computer exchanged any data with any computer other than that
of the Plaintiff.
Independent ISPs
41. The Canadian Radio-television and Telecommunications Commission (CRTC)
produces an annual report on the communications industry available online.
42. The most recent edition, Communications Monitoring Report September
2012, gives statistics on the degree of competition in the internet
sector. Excerpts from this report are attached as Exhibit B to this affidavit.
43. Collectively, Independent Internet Service Providers (ISPs) like Distribute},
Access Communications Co-operative Limited and ACN Inc. garnered 6.7% of
the 2011 revenues for residential internet access services (CRTC report
Table 5.3.1), from 7.6% of the subscribers (CRTC report Table 5.3.2). The
other 93% share was held by the large incumbent telephone and cable
companies, such as Bell Canada, Rogers and Videotron. Independent ISPs
face some very powerful competitors, and our low market share numbers
reflect this.
44. Furthermore, in Distributel's response to the order granted as a result ofthe
previous Motion brought by the Plaintiffs, 17 IP addresses were identified as
requiring investigation from the Cable companies. The current motion is a
request for new Distribute} customer identities, despite there having been no
follow up request by the Plaintiffs for an order to compel the cable
companies to provide customer data for the IP addresses we identified as
being within their purview in response to the previous motion.
45. We are concerned with the Plaintiffs' apparent selectivity. Were the actions
of the Plaintiffs' non-prejudicial or non-selective, there would surely have
been Motions brought against the large incumbents, since their customers
comprise 93% of the total. Moreover, they would have followed up on their
first set of IP addresses with the cable operators we identified before
bringing a further motion for new alleged infringers.
46. These actions for disclosure of confidential customer information have been
well publicized, and will likely continue to be so. Canadians value their
privacy. 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. This is of significant
concern to Distributel's management and me.
SWORN BEFORE ME at the City of
Ottawa, in the Province of Ontario,
this 7th day of February, 2013
)
)
)

) DANIEL PUCKETT
)

the Province of Ontario
Christophii'Jahn ,
Commissioner, aiD., ....-.ara.at.

Expires August 14, 2C)1S.
0009
This Exhibit "A" attached to and
forming part of the Affidavit
of Daniel Puckett sworn before me
this ih day of February, 2013.
Chilstuplaolahn Paul
Commissioner. ate.,
while a Student-at-Law.
Ai.!!;J,U$l 1.4, 2015.
0010
-
Goudreau Gage Dubuc
SE.N.C.R.L LLP.
T514.397J602
F 514.397.4382
2000. McGill College
#2200
Montreal {Quebec)
Canada H3A 3H3
www.ggd.com
Goudreau Gage Dubuc
PROPRlETt INTELLECTUELLE
INTELLECTUAL PROPERTY
Direct dial: (514) 397-7485
Email: gmoore!:d.com
Our Ref.: J
2
.
11
)
On met vos idees a t'abri
A home for your ideas
November 27, 2012
Subject: Copyright Violation via P2P network
Dear Sir,
We are the attorneys for NGN PRIMA PRODUCTIONS INC., the owner of the
copyright in the motion picture Recoil.
Our client is concerned about the unlawful file-sharing of its work over peer-to-peer
("P2P") networks. This practice reduces income for all of those who are involved in
the production of its films and limits its ability to invest in new projects.
To help address this issue, NGN PRIMA PRODUCTIONS INC. instructed a software
company to identify instances when Recoil was made available for download on P2P
networks without its consent.
Evidence was obtained demonstrating that the following IP addresses were used to
copy an unauthorized copy of Recoil and to make it available for download using the
BitTorrent protocol:
IP Adresses I Dates and Times
As owner of the copyrighted work, NGN PRIMA PRODUCTIONS INC. then obtained
an Order from the Federal Court of Canada, which required that Distribute!
Communications identify the customer who used these particular IP addresses on
those dates. You were identified as the subscriber associated with these IP
addresses.
0 0 11
~ .
r
t.
f
Goudreau Gage Dubuc
2
PROPRIETE INTELLECTUELLE
Your actions
Since you have been identified ~ tije subscriber associated with the relevant IP
addresses, NGN PRIMA PRODUCTtONS INC. believes that you have infringed its
copyright by:
making a copy of Recoil on your computer without authorization; and
making a copy of the film available to be downloaded by others.
NGN PRIMA PRODUCTIONS INC. is in a position to include you as a defendant in
Federal Court File T-2062-12. In that case (a copy of the statement of claim is
attached for your reference), our client is seeking compensation for the unauthorized
copying and distribution of its film over P2P networks, along with the reimbursement
of the costs incurred to enforce its rights. You have not yet been named as a
defendant in this case and you do not need to contact the Federal Court. If NGN
PRIMA PRODUCTIONS INC. succeeds, the Court would establish the amount to be
paid.
Offer to settle
. NGN PRIMA PRODUCTIONS INC. would prefer to reach an amicable settlement
with you, avoiding the additional time and costs of litigation.
Should you accept to settle this matter, NGN PRIMA PRODUCTIONS INC. would
agree not to commence proceedings against you, in exchange for the following
commitments:
1) you would be entitled to keep one copy of Recoil for your private use;
2) you would agree not to copy the film and to stop making it available to others,
whether by way of P2P networks or otherwise;
3) you would compensate NGN PRIMA PRODUCTIONS INC. by sending a
cheque to our firm for $1500, which represents:
damages caused by the unauthorized and unlawful copying and
distribution of the film;
legal costs, including amounts to prepare the court materials filed to
date and to attend at court to obtain the order referred to above; and
the administrative fees charged by your ISP to comply with the court
order.
00 !12
..
Goudreau Gage Dubuc
PRO.PR I ETE I NTE LL EC TU ELLE
0013
3
Should you not agree to these terms, NGN PRIMA PRODUCTIONS INC. reserves its
right to seek a higher amount by adding you as a defendant in Court File T-2062-12.
The Copyright Act allows the court to assess statutory damages anywhere between
$1000 and $20,000. We are of two cases
1
where the court awarded $5000
per film to compensate for copyright Infringement, and of one case
2
where the court
awarded $1000 for each of 14 films that were copied and distributed without
authorization. In each case, the court also ordered that additional amounts be paid to
cover costs and interest.
In addition, a bill before the Canadian Parliament would allow copyright owners to
recover up to $5000 for non-commercial infringements.
3
If you are willing to conclude a settlement agreement according to these terms (which
is a legally binding contract), kindly sign the document attached to this letter and
return it to us with a cheque for $150J payab;e to "Goudreau Gage Dubuc LLP, in
trust", and quoting reference number on the back. We advise you to keep a
copy for your records.
We recommend that you seek independent legal advice and, if you dispute our
client's allegation of copyright infringement, that you explain your position to us as
soon as possible.
If you do not accept the offer to settle or explain why you dispute these allegations of
copyright infringement within 15 days following the date of this letter, our client
reserves its right to proceed against you.
We look forward to hearing from you.
Yours very truly,
GOUDREAU GAGE DUBUC LLP
-
GM/sb
Enclose: Statement of Claim
Settlement Agreement
1
Film City Entertainment Ltd. v. Golden Formosa Entertainment Ltd., 2006 FC 1149; Film City
Entertainment Ltd. v. Chen, 2006 FC 1150.
2
L.S. Entertainment Group Inc. v. Formosa Video (Canada) Ltd., 2005 FC 1347.
3
Bill C-11, An Act to amend the Copyright Act, I st Sess., 41
51
Pari., 20 II, cl. 46.1.
Reference number: L:e .::zJ
Goudreau Gage Dubuc LLP
2200-2000 McGill College
Montreal, Quebec
H3A3H3
SETTLEMENT AGREEMENT
Re: NGN PRIMA PRODUCTIONS INC., Recoil ("the film")
Dear Sirs,
In return for an agreement by NGN PRIMA PRODUCTIONS INC. not to commence
proceedings against me in relation to the matters set forth in your letter of November
27, 2012, I agree:
1) not to copy the film and to stop making it available to others, whether by way
of P2P networks or otherwise;
2) to pay $1500 to "Goudreau Gage Dubuc LLP, in trust" to compensate NGN
PRIMA PRODUCTIONS INC. for its damages and costs.
I shall be entitled to keep a single copy of the film for my private use.
I understand that this is a legally binding contract between me and NGN PRIMA
PRODUCTIONS INC. and I have had the opportunity to seek independent legal
advice.
Signature:
Name:
--------(please print)
Date:
0014
BETWEEN:
TO THE DEFENDANTS:
Court File No. T- ,;}Q;:2- /;J.
FEDERAL COURT
SIMPLIFIED ACTION
NGN Prima Productions Inc.
-and-
STATEMENT OF CLAIM
Plaintiff
Defendants
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are
required to prepare a statement of defence in Form 171B prescribed by the Federal
Courts Rules, serve it on the plaintiff's solicitor or, where the plaintiff does not have a
solicitor, serve it on the plaintiff, and file it, with proof of service, at a local office of this
Court, WITHIN 30 DAYS after this statement of claim is served on you, if you are
served within Canada.
If you are served in the United States of America, the period for serving and filing your
statement of defence is forty days. If you are served outside Canada and the United States
of America, the period for serving and filing your statement of defence is sixty days.
Copies of the Federal Courts Rules, information concerning the local offices ofthe Court
and other necessary information may be obtained on request to the Administrator of this
Court at Ottawa (telephone 613-991-4238) or at any local office.
0015
0
IF YOU FAIL TO DEFENP THIS PROCEEDING, judgment may be given against you
in your absence and without further notice to you.
(Date):
Issued by:
NOV 14 2012
R e g ~
TAGRIPAKL
ru::C:aStRY t>:FFlCER
AGENT DU GR.E.FFE
THE FEDERAL COURT OF CANADA
30 McGill College
Montreal, Quebec H2Y 3Z7
Tel. 514-283-4820
Fax 514-283-6004
TO: John Doe and Jane Doe
Adressesses unknown
This Exhibit "B" attached to and
forming part of the Affidavit
of Daniel Puckett sworn before me
this i
11
day of February, 2013.
Chiretopla Jam Paul
Commissioner, ate., Pravlnc8 afOiillto.
while a Student-at-law.
Expires August 14, 2015.
0017
I+ I
Canadian Radio-television and
Telecommunications Commission
Conseil de Ia radiodiffusion et des
telecommunications canadiennes
Communications
Monitoring Report
September 20 12
www.crtc.gc.ca
0018
Canada
This publication is only available electronically: http://www. crtc.gc.ca
This publication can be made available in alternative format upon request.
Ce document est egalement disponible en franr;ais.
Catalogue No. BC9-9/2012E-PDF
0019
...
-5
0
Communications Monitoring Report- Section 5.3
Statistical information -Internet market sector
Table 5.3.1 Internet revenues($ millions)
2007
Incumbent TSPs (excluding out-of- I
territory)
Dial-up
High-speed
Subtotal
Cable BDUs
Dial-up
High-speed
Subtotal
Incumbent TSPs (excluding out-of-
territory) and cable BDUs subtotal
Dial-up
High-speed
Subtotal
Other TSPs
Dial-up
High-speed
Subtotal
Total
Dial-up
High-speed
Residential total
territory)
Cable BDUs
territory) and cable BDUs subtotal
OtherTSPs
Incumbent TSPs (out-of-territory)
Resellers,utility telcos, and other
carriers
Other TSPs subtotal
Business access total
Business transport total
Business total
Higher capacity access and transport
Lower capacity access
Wholesale total
Applications, equipment, and other
Internet-related services
Grand total
141
1,331
1,469
5
1,935
1,940
145
I 3,264
I 3,409
83
128
214
228
3,394
3,622
434
169
604
112
223
335
938
73
1,011
54
147
201
778
5,613
2008
116
1,406
1,522
2
2,129
2,131
118
3,535
3,654
71
175
245
189
3,710
3,899
457
201
657
98
241
339
997
76
1,073
54
I 161
215
939
6,126
2009
92
1,506
1,598
I
2,419
2,420
93
3,925
4,018
48
219
267
141
4, 144
4,285
444
227
671
93
255
348
1,019
67
1,086
48
213
261
868
6,499
I
I
2010
64
1,588
1,652
I
2,572
2,573
65
4,160
4,225
31
282
313
96
4,442
4,538
478
284
762
81
282
364
1,125
77
1,202
42
218
260
772
6,772
2011
I
46
1,732
I
1,778
2,811
2,811
47
4,543
4,590
I
I
growth
2010-
2011
-21.8%
9.1%
7.7%
-40.1%
9.3%
9.3%
-28.0%
9.2%
8.6%
23 -28.0%
310 10.0%
332 ~ 6.3%
69
~ ~
C:4,923 ~
481
309
790
81
272
353
1,142
52
1,194
53
266
319
766
7,202
-27.8%
9.3%
8.5%
0.8%
8.7%
3.7%
-0.5%
-3.8%
-3.1%
1.5%
-32.4%
-0.6%
26.4%
21.7%
22.5%
-0.7%
6.3%
2012
CAGR
2007-
2011
-24.3%
6.8%
4 .9%
-38.7%
9.8%
9.7%
-24.7%
8.6%
7.7%
-27.7%
24.7%
11.7%
-25.7%
9.4%
8.0%
2.6%
16.2%
7.0%
-7.9%
5.1%
1.3%
5.0%
-8.2%
4.2%
-0.4%
16.0%
12.2%
-0.4%
6.4%
Wholesale Internet access and transport services are generally sold to ISPs. These services are used by the ISPs to provide nternet access service to
their retail customers. Sales to non-ISP entities, such as VoiP service providers, are included in the wholesale revenues pr ented in Table 5.3.1 as
"Higher capacity access and transport" revenues.
"Lower capacity access" includes services such as Bell Canada's GAS, TCC's VPOP, DSL, and cable BDU-provided TPL service, as well as
satellite capacity and dial-up btmdled with Internet access sold to ISPs.
In previous years, modem rental fees for residential service were included with Internet access service revenues. Howeve the fees are no longer
included as of2008. In 2008, the fees were approximately $121 million.
I. Due to changes in company reporting, the business transport total in 20 II is not comparable to previous years.
Source: CRTC data collection
$332M I $4,923M = .0674 -> 6.7%
148
Excerpt from http ://www.crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2012/cmr2012. pdf
Page 148, table 5.3.1 referenced in Affidavit
0020
Communications Monitoring Report- Section 5.3 I 2012 Q Q 21
Table 5.3.2 Residential Internet subscribers, by type of TSP (part 1 of 2)
2007 2008
Incumbent TSPs (excluding out-
of-territory)
Dial-up 566
% annual growth -11 .8 -23.5
%share of total dial-up 60.6 59.1
High-speed 3,405 3,584
%annual growth 10.0 5.3
%share of total high-speed 40.7 39.5
Subtotal 3,971 4,017
% annual growth 6.3 12
%share of total 42.7 40.9
CableBDUs
Dial-up 18 18
% annual growth -53.8 1.9
% share of total dial-up 1.9 2.4
%annual growth
1
13.2 9.1
% annual growth 12.5 9.1
% share of total 49.5 51.1
Incumbent TSPs (excluding out-
of-territory) and cable BDUs
subtotal
Dial-up 584 451
% annual growth -14.1 -22.8
% share of total dial-up I 62.5 61 .6
%annual growth 11 .8 7.5
%share of total 922 92.0
Other TSPs
Dial-up 350 281
%annual growth -37.4 -19.7
%share of total dial-up 37.5
High-speed 379
Subtotal 729 785
% annual growth -17.7 32.9
% share of total 7.8 8.0
150
2009
286
-33.9
58.8
3,673
2.5
38.4
3,959
-1.4
39.3
14
-24.4
2.8
5,358
7.4
56.0
5,372
7.3
53.4
299
-33.6
61.6
9,031
5.3
94.3
9,331
3.4
92.7
187
-33.6
38.4
545
82
5.7
731
82
7.3
2010 2011
210 137
-26.6 -34.9
57.3 55.5
3,762 3,876
2.4 3.0
37.6 372
3,972 4,011
0.3 1.0
38.3 37.6
10 7
-23.0 -28.9
2.8 3 .0
5,642 5,839
5.3 3.5
56.4 56.0
5,653 5,846
5.2 3.4
54.5 '
54.8
I
220 144
-26.5 -34.6
60.1 58.5
9,404 9,713
4.1 3.3
94.0 932
9,625 9,857
3.1 2.4
92 .8 92.4
146 102
-21.7 -30.1
39.9 41.5
604 712
10.8 18.0
6.0 6.8
750 815
2.5 8 .6
G)
7.6
~
7.2% of total
CAGR
2007-2011
-29.9%
3.3%
0.3%
-19.4%
6.3%
6.2%
-29.4%
5.0%
3.6%
-26.5%
17.1%
2.8%
Excerpt from http://www.crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2012/cmr2012.pdf
Page 150, table 5.3.2 referenced in Affidavit
BETWEEN:
Court File No.: T-206212
FEDERAL COURT
-and-
AFFIDAVIT OF DAVID ZVEKIC
Sworn February 7, 2013
Plain tilts
Defendants
I, DaVid Zvekic, live in the City of Torol)to and I hereby MAKE OATH AND SAY that
all of the following statements are TRUE, and that I have personal knowledge of the
matters herein:
l. I am employed as a software-developer, systems analyst and software designer by
Distribute! Communications Limited, a telephone company and Internet Service
Provider (ISP), and have been so .employed since November of 2000. Prior to my
current employment I was .employed as a compQter programmer and client-server
database developer by Cybershift.com, a maker of commercial "time and
attendance" software, since early 1999. Prior to that employment I was employed
as a computer programmer, database developer, database administrator, and
systems analyst by Distribute} Communications Limited since mid.:.1996.
2. I studied at York University, and graduated in 1997 with a Specialized Honours
Bachelor of Science specializing in Computer Science. This study included the
and applied operation of computer systems, software and hardware,
operating systems, computer software and digital logic design and theory,
information processing systems. database and me-systems, mathematics, logic,
the scientific method as well as less intensive study in other sciences namely
physics, chemistry, psychology and astronomy.
3. I have been writing computer software since 1982, when I designed and wrote my
first computer program, at 9-years-old, using the Apple n computer (a program
which rendered, in high resolution, mathematical graphical patterns). I have been
programming computers regularly ever since. The first commercial software I
wrote, when I was 17-years-old, was a program called Scoreboard+PLUS for high
school athletic departments to track student athletic achievement.
4. My n01ma1 professional duties at Distribute! include reading and understanding
computer software protocols, computer languages, analyzing and improving, as
well as debugging, the functioning of computer software designing,
writing and modifying computer software systems and software programs as
needed for Distributel's business functions as well as troubleshooting software
s.ystems that do not perfotni according to expectations, and performing needs
assessments to optimize business functions. Those duties also include the
responsibility and successful design and writing of billing software, assisting in
the design of telephone switching logic, and writing specifications for data
exchange protocols between independent software systems in the company and
other software prQjects.
5. Furthennore, as part of my professional experience at Distributel, I was required
to develop an automated computer software system to process call detail record
(CDR) computer logs and call setup detail record (CSDR) computer logs and
other data in real time. This was in order to prevent fraudulent telephone usage
and to predict future fraudulent activity before it occurs. This software called
"fraudbox" currently runs continuously at Distribute! and is entrusted to
automatically reconfigure Distributer s telephone switching system to prevent
fraudulent traffic as well as to notify appropriate staff. This software is
considered a mission critical system by Distnbutel as any interruption or failure in
its operation can result in tens ofthousandsof dollars of losses to toll fraud.
6. Furthermore as part of my professional experience at Distribute! I have previously
been required to review a protocol used in the telecommunications industry called
Exchange Message Interface (EMI) in order to design and write software to
facilitate the exchange of third party account receivables between Distribute! and
other telephone carriers. The software Distribute} uses was designed by me to
comply with the EMI protocol, and is currently in use on a daily basis. This
software must accurately exchange data with external computer systems
belonging to third party telephone carriers based upon the EMI specifications and
testing procedures set up by me in co-operation with other carriers' technical
personnel The EMI specification is over I 000 pages in length.
.0023
7. I am highly qualified to study the operation of software protocols and to
determine how they function, how they were intended to function. I am highly
qualified to design and write software.to implement those protocols and put them
into practice on a computer system. I am also highly qualified to study computer
logs to extract infonnation and to determine what can be learned for the purpose
of making conclusions on the probable or necessary human or computer activities
which are consistent with the data contained in computer logs.
8. As part of my duties I have been asked to review the BitTorrent protocol
("BitTorrent .. or "Protocol") and the functioning of BitTorrent in order to assess
its operation and to determine what infonnation BitTorrent will make available to
an investigator attempting to ascertain the activities of users of BitTorrent
software on the Internet
9. I have downloaded copies of the BitTorrent specification from www.bittorrent.org
which is run by the creators of the BitTorrent protocol. I have thoroughly
reviewed the specifications as well as used and observed the functioning of freely
available BitTorrent client software to determine its mode of operation. I have
also consulted numerous other sources of infonnation on BitTorrent. I have also
investigated the data contained inside the electronic data files BitTorrent uses to
facilitate communication and the transfer of data over the Internet.
BitTorrent
10. BitTorrent is a protocol designed to allow the efficient distribution of electronic
fJles over the Internet between multiple computers known as Peers. In this
Protocol, any Peer attempting to download a fJ.]e, would do so by acquiring
"pieces'' of the file from multiple independent computers (which are all also
referred to as "Peers''). Bach Peer interested in a file is expected to help lessen
tlie workload of other Peers by making available any piece of the fJ.le it possesses
to the other Peers on request and to communicate the availability of pieces it
possesses.
11. Since BitTorrent specifies the transfer of information between computers as peers
it is commonly referred to as a or a "P2P" protocol. The transfer of
data is also commonly referred to as "file sharing,. because computers transfer the
data amongst each other rather than download from a single specific source such
as a file server.
12. The Protocol defines that a file being transmitted is subdivided into multiple
pieces. Each piece is a small fragment (often 0.1% or less) of the entire flle. It is
these which are uploaded and downloaded amongst Peers. Each Peer must
collect all of the pieces before it has succeeding in obtaining a complete file.
13. I have observed a ftle defmed with over 15,000 pieces. With each piece
containing only 1/15,000 of the entire file. If this file was a movie, each piece
would contain the equivalent of a 0.5 second fragment of a movie with a total
runtime of more than 2 hours.
14. In order to be able to download a complete file using BitTorrent there must be at
least one other Peer with the complete file. or else some other Peer must have the
specific pieces of the file that you are missing. If you are missing multiple pieces,
these can be downloaded independently from multiple Peers concurrently,
provided each possesses at least one of the missing pieces. If no Peer has any of
the pieces you are missing, neither you nor any other Peer will ever succeed in
downloading the complete file unless a Peer possessing the missing pieces joins
the network.
15. Peers do not offer pieces to each other; they reguest pieces from each other. If a
Peer connects to your computer, it is connecting in order to request to download a
piece from your computer. The protocol does not allow for Peers to spontaneously
upload data to each other without a request.
16. Peers may join or disconnect from the network at any time, and join or disconnect
from each other at any time. And consequently it is possible for a Peer to sitidle
for extended periods of time waiting for the appearance of another Peer from
which it can obtain a missing piece. The presence of a Peer does not establish that
it has possession of any piece.
17. The advantage of the Protocol is. that it allows multiple computers to download a
file without requiring a central file server and therefore no particular computer
acts as a 'bottleneck' or has complete responsibility for distributing the entire file
to other Peers.
18. In order for a person to download. a file with BitTorrent that person must first
obtain a BitTorrent client software (Client) and another type of file called a
'torrent' or 'meta-info' file ("Torrent"). There are many different BitTorrent
Clients but they must all adhere to the Protocol in order to communicate with each
other. Torrents are freely available on public web sites. Some Clients are sold
commercially or given away in the public domain, distributed on web sites, by
other means. Alternatively, a person with the right knowledge can write a Client
from scratch as long as they follow the Protocol.
19. As part. of my investigation I wrote my own BitTorrent Client, as well as studied
the operation of a third party written Client called "uTorrent." As a qualified
software designer and systems analyst I have the necessary skills to write software
such as BitTorrent Clients provided I have. access to the protocol specifications
and the usualtools of my trade.
0025
20. The Torrent itself contains information describing the flle including its name,
size, and other technical data required by the Protocol including a 160 bit message
digest also known as a hash ("SHA 1 ") computed on the file; infonnation as to
how many pieces and the size of each piece that the file is separated into, a SHA 1
digest computed for each individual piece, and the Internet name of a computer
system referred to by the Protocol as a 'tracker' (Tracker), or possibly a list of
Trackers. The Torrent does not contain a copy, in whole or in part, of the actual
file. There is also some other additional optional information such as. a
'comment' field. A Torrent file often has a filename that ends with the extension
u.torrent".
21. The SHA 1 digest is a mathematically computed number that is statistically almost
certain to be unique to a particular data file, It is improbable that 2 different data
files will ever have the same SHA1 digest, and thus the SHAI is relied on to
ensure the accuracy of data transferred using BitTorrent.
22. A BitTorrent Client, when operating on a computer to obtain the file described in
a Torrent, communicates over the Internet with a Tracker (as indicated inside the
Torrent). The Client transmits the IP address of the computer that it is running on,
as well the SHAl digest which uniquely identifies the file it is interested in. A
Tracker does not distribute any copies of the file, but is essential for people using
the Torrent and Client software to locate other computers distributing the same
file in whole or in part. If the Tracker is configured to track that particular flle
identified by SHA1 digest, it will accept the connection, otherwise it will reject
the connection. Every Client that is being used to attempt to download or upload
pieces of the file requires a copy of the same Torrent data and will thus
communicate with the same Tracker (or one of the same Trackers listed in the
Torrent). The Tracker exchanges the IP addresses of all the computers that the
Clients run on with each other, enabling them to transfer data between each other
over the Internet. Each computer in this exchange of infonnatio11 is referred to in
the Protocol as a Peer.
23. Certain Peers, known as "Seeders", mayhave complete copies of the file. Seeders
will upload, piece by piece. to other Peers upon request.
24. Other Peers known as ''Leechers" may have some or no pieces of the file, but may
request pieces of the file from Seeders and other I..eechers. Peers may connect to
each other without transmitting or possessing any copy of the file.
25. Even though a Leecher does not possess a complete copy of the fJle, it is a normal
operation of BitTorrent that Leechers should respond to requests of other Peers to
share whatever pieces they do have, even if they have only a single piece of the
file. This sharing is infonnally enforced by using a tit-for-tat algorithm that
ensures that any Leecher which does not share will suffer degraded download
performance as more and more Peers "snub" it, and refuse to honour its requests.
A Peer that is snubbed by enough other Peers may never be able to complete the
0026
download. A Peer cannot upload data to another Peer unless the other Peer first
asks for it by sending a request message. It can reply to the request by sending a
piece message containing a small portion of the data from the file. When a Peer is
snubbed, the snubbing Peer sends a "Choke" message to indicate it will refuse to
honour any requests from the snubbed Peer.
26. When there are many Leechers and very few Seeders, the Leechers won't all have
the same pieces. In order to optimize workload sharing, the Protocol specifies that
pieces should be requested in random order. This ensures that Leechers can
request missing pieces from each other. This specification lessens the workload
on Seeders and allows them to respond to requests for rate pieces. If every
leecher started downloading in some non-random, predetermined order, then
many Leechers would have the same pieces from the beginning of the order, and
no Leechers would have the pieces from the end.
27. Each Peer with any portion of the file is required by the Protocol to transmit a
'bitfield' message to the other Peers indicating exactly which pieces of the file
that Peer possesses and which pieces of the f:tle that Peer is lacking. This allows
each Peer to know from whom they should request pieces of the flle that they are
tnissing, including which Peers are Seeders and which are Leechers. The
Protocol specifies that Peers must track this bitfield infonnation and update it
during the file transfer. Furthermore when any Peer downloads an additional
piece of the flle, they transmit a 'have' message to the other Peers indicating the
acquired piece. Thus the Peers keep track of each other's progress in order to
maximize sharing of the workload.
28. Using an adequate BitTorrent Client software, I or another qualified person, can
use the 'bitfield' and 'have' messages to determine exactly what portion or
portions of a file that a particular Peer is in possession of and making available. I
have personally observed both the transmission of 'bit:field' messages and 'have'
messages, and I can attest that using the Protocol I was able to determine what
portions of the me other Peers are in possession of, and cbserve the download
progress of other Peers. I was also able to. determine the time when another Peer
has downloaded a complete copy of the file.
29. It is the normal operation of BitTorrent that all Peers will appear on the list of
Peers even if has not uploaded or downloaded any portion of tbe file. In fact it is
possible that no Peers have possession of any portion of the file even if they are
connected to the Tracker, attempting to download the ftle. In this case no
successful download is possible.
30. In order to ensure that my understanding ofBitTorrent goes well beyond a mere
academic level or "expert user" level, and to determine what public information is
accurate, I believed it was necessary to observe the actual transfer of data at the
lowest and most detailed level and to verify my own understanding of the
BitTorrent by creating and implementing my own software BitTorrent Client
0027
"lJ028
according to the Protocol specification document. Therefore I have written my
own BitTorrent Client from scratch according to the Protocol specifications. My
BitTorrent Client implements the major functions of BitTorrent and I have tested
its operation by using it to communicate with third party computers running other
BitTorrent Clients and Trackers written by other parties. The only components .of
my program which I did not write are the generic components thatare unrelated to
BitTorrent itself. For example, I did not write the layer that draws a graphical
representation of a button on the screen as this would be time consuming and
rendering a click:able button has nothing to do with, and sheds no light on whether
or not I understand BitTorrent.
31. By personally observing the interaction of third party BitTorrent Clients and the
software I wrote, I was able to determine precisely how the Protocol is actually
implemented in the real world, answer questions about its functioning. based on
personal and verified knowledge of those details. The knowledge is reliable
because when I made a mistake my software would malfunction. Using a Client
written by a third party it is not possible to ensure ones own understanding is
correct. By referring to the BitTorrent protocol document I will remember the
experience I had implementing .the computer code which causes my software to
put that specification into practice. The normal use of BitTorrent Client software
doesn't require a person to have any detailed understanding of how it actually
works.
32. My investigation into BitTorrent has allowed me to confinn first hand that my
understanding of the.protocolis accurate; otherwise my software would not have
functioned, It has also allowed me to Clarify my understanding by pel'$onal
experimentation where the protocol specification is ambiguous or vague.
33. The BitTorrent protocol conununicates exact details of which portions of the file. a
Peer has at a specific time in the ''bitfield" and "have'' messages. That Peer is
identified by an IP Address, as this is the identifier used on the Internet to
facilitate communication between computers. This can be recorded in a computer
log to determine whether or not the Peer had downloaded a substantial portion of
a file, prior to seeking any additional information from the Internet Service
Provider of the Peer. Indeed this would be obtained, prior to the
Client even commencing any download because that is how BitTorrent works.
34. Theinfonnation in Exhibit "A" of the Logan Affidavit does not give any
indication of what portion or portions; if any, of the files that each Peer possesses.
Consequently it is not possible, based on that information, to determine which if
any Peers ever pOssessed a substantial portion of the file, a complete copy, or no
copy of the file.
35. In order to communicate and transfer a piece of the file it is essential for Peers to
be connected over the same period of time, however the HitDateUTC column in
Exhibit ''A", which I interpret to be an indication of the time and date a Peer was
using BitTorrent, appears to differ for the different Peers. This seems to imply
that the Peers were not all connected simultaneously, and thus it cannot be
concluded from Exhibit "A" whether any of the Peers could have downloaded or
uploaded a substantial portion of the file, whether or not some of the Peers did
indeed have a substantial or complete portion.
36. In the process of downloading a file over time, a Client may observe any number
of other Peers appear on the Tracker. A Client may and communicate with those
Peers without knowing if any of those Peers ever possessed a substantial portion
of the file unless reference is made to the bitfield' and 'have' messages those
Peers are transmitting.
37. It is a characteristic of BitTorrent that pieces are deliberately small; only a
completed piece of a flle has an SHAl digest (described in the Torrent), and thus
Peers can maintain a status check on the data they are transmitting or receiving
only when a full piece has been completed. Any portion of a file smaller than 1
piece cannot be corroborated for accuracy and is discarded unless the entire piece
can be completely downloaded from a same Peer in the same session. If the
pieces are large, then it becomes impractical to share the workload between Peers,
and thus this is not normal practice.
38. For example, I located, via an Internet search at http://kat.ph, the Torrent that
contains information about the file identified as SHAl
232E710F605lDFD450ECF45682920AF737BOB9BFfound in Exhibit "A", with
the title of "Recoil.'' I determined by .examining the Torrent details that the
complete file is assembled from 704 separate pieces with each piece 1 Megabyte
(MlJ) in length, except for the final piece truncated in size (this is nonnal for the
final piece). Since the movie Recoil is reported on the Internet at
http://www.imdb.com as b c ~ i n g approximately 94 minutes in length, then I
estimate a single piece would contain about 8 seconds of movie footage on
average. I did not download or attempt to download this movie. This information
is contained inside the Torrent
39. If Exhibit "A'' indicates Peers have 1 piece of that file, then I can conclude they
have 8 seconds of the movie. However Exhibit "A" does not indicate what portion
if any of the file was actually uploaded or downloaded by any specific Peer or if
any have any complete piece at all.
40. It is my belief that before Distribute{ Communications Umited is required to turn
over any additional information on any computer systems on the basis of
BitTorrent evidence, it would be in the best interests of Justice that it is
established through the 'bitfield' and 'have' messages, which were communicated
by the operation of the BitTorrent protocol in the Client software, what pieces of
any file that each computer system downloaded. In that way, it would be possible
to establish which computet systems, if any, were in possession of a substantial or
complete portion of a copyrighted work, and which computer systems. if any,
were not.
41. I make this affidavit in support of a motion to quash a subpoena and for no other
or improper purpose.
SWORN BEFORE ME at the City of
Toronto, in the Province of Ontario,
this 7th day of February, 2013
)
)
)
)
) DAV
_d) mil >
aJ,.,.. )
A COMMISSIONER FOR OATHS in and for
the Province of Ontario
r.....,Kalhrfna Michel, a
Qallnfllloner eto., Province of Ontario.
... a:Student-et-Law.
8lpha February 10, 2014.
0031
WRITTEN REPRESENTATIONS- TABLE OF CONTENTS
I. Statement of Facts ............................................................................................................... 1
A. Overview and summary of issues ................................................................................... 1
B. The Parties ...................................................................................................................... 2
C. How the IP address protocol works ................................................................................ 4
D. How Distribute! retrieves customer information ............................................................ 7
E. How BitTorrent works .................................................................................................... 7
F. The adverse market effect on Distribute!.. .................................................................... 11
II. Point in Issue ..................................................................................................................... 12
III. Submissions .................................................................................................................. 13
A. The Moving Parties have failed to meet the required criteria ....................................... 13
B. The Moving Parties have failed to demonstrate a bonafide claim ............................... 14
a) Failure to produce adequate evidence ....................................................................... 15
b) An improper purpose ................................................................................................ 18
C. The Moving Parties have failed to show disclosure outweighs privacy interests ......... 21
D. The Moving Parties have failed to show no other way to obtain the information ........ 23
E. The Moving Parties have failed to include the payment of reasonable compensation in
the draft order ........................................................................................................................ 24
IV. Relief Sought ................................................................................................................ 24
- 1 - 0032
Court File No.: T-2062-12
FEDERAL COURT
BETWEEN:
Plaintiffs
-and-
Defendants
WRITTEN REPRESENTATIONS OF DISTRIBUTEL COMMUNICATIONS LIMITED
(Response to motion for leave to conduct examination for discovery of non-party)
I. STATEMENT OF FACTS
A. Overview and summary of issues
1. Distribute! Communications Limited ("Distribute!") opposes the motion to
compel Distribute! to disclose personal information about some of its customers to NGN Prima
Productions Inc. and Riding Films Inc. (the "Moving Parties"). The Moving Parties allege that
certain Internet Protocol ("IP") addresses assigned to Distribute! customers may have been
involved in unauthorized copying and sharing of three movies through peer-to-peer ("P2P")
Internet networks.
- 2-
0033
2. Distribute} has provided customers with telecommunications services since 1988.
Technological advances, including the Internet, are a significant benefit to society but technology
should not be employed as a tool to obliterate the privacy rights our society also deems so
important. Distribute} stands as the protector of its customers' private information in the face of
the Moving Parties' failure to meet the required legal standard for such disclosure and the
Moving Parties' improper purpose for wanting the information.
3. Distributel's opposition is well founded in law. The Moving Parties have failed to
abide by the established standard that must be met for the Court to order such disclosure. The
Moving Parties have failed to demonstrate that they have a bona fide claim. Furthermore, the
Moving Parties' motion is prejudiced by the improper purpose for which they seek the
information. Finally, an order based on the Moving Parties' motion and evidence would result in
an unjustified violation of the privacy rights of Distribute} customers.
B. The Parties
4. Distribute} is a telecommunications company operating in Canada that offers
services including home phone, long distance, and Internet. Distribute} has offered Internet
services to its customers since 1997.
5.
Distributel's Motion Record, Affidavit of Daniel Puckett, sworn February 7, 2013 ("Puckett
Affidavit") para 3, at TAB 1.
The Moving Parties are two film companies who are the Plaintiffs in a Simplified
Action at the Federal Court in Court file no. T-2062-12. The Defendants are unknown and
referred to as John Doe and Jane Doe. The Statement of Claim was filed on November 14,2012.
- 3 -
0034
An Amended Statement of Claim, adding Riding Films as a Plaintiff, was filed on January 10,
2013.
6. The Moving Parties state they own the copyright to the films Recoil, Crash Site
and Dawn Rider. They allege that their films have been unlawfully copied and distributed over
the Internet by the Defendants. The Moving Parties allege that they have identified the IP
addresses associated with the copyright infringement. They are seeking disclosure of the names
and addresses of persons who are associated with Distribute! IP addresses ..
Moving Parties' Motion Record, Written Representations, paras 2, 4, TAB 3.
Moving Parties' Motion Record, Notice of Motion, para 2 of the grounds, TAB 1.
7. The Moving Parties hired Canipre Inc. ("Canipre"), an Ontario corporation, which
provides forensic investigation services to copyright owners. Barry Logan is the owner and
principle forensic consultant of Canipre. His affidavit is the only evidence tendered by the
Moving Parties in support of this motion.
8.
Moving Parties' Motion Record, Affidavit of Barry Logan, sworn January 10, 2013 ("Logan
Affidavit") paras 1, 4, TAB 2.
On November 19, 2012, NGN Prima Productions Inc. ("NGN"), moved for an
almost identical order from the Court in relation to Recoil (the "November Motion"). That
motion requested customer information from the same respondents, including Distribute!.
Distributel's Motion Record, Puckett Affidavit, paras 37-40, TAB 4.
0035
- 4-
C. How the IP address protocol works
9. The Moving Parties allege that certain IP addresses were used in the transmission
of the works over the Internet.
10. An IP address is an essential component in order for a computer to access the
Internet. It refers to the numerical identifier that an Internet Service Provider ("ISP"), such as
Distribute!, assigns to a computer or computers in order for them to connect over a network
using IP.
Distributel's Motion Record, Puckett Affidavit, para 13, TAB 1.
11. An IP address does not identify a specific individual or even a specific computer.
As such, it is not analogous to a driver's licence, a Social Insurance Number, or a fingerprint. On
the contrary, an IP address can be used as a shared component to access the internet for multiple
users. For example, it may be used to create a wireless network shared by multiple persons in a
household, or in an office local area network, or an Internet coffee shop.
12. As an ISP, Distribute! reserves certain blocks of IP addresses for use by its
residential customers. These include:
(a) Digital Subscriber Line (DSL) Internet customers;
(b) Dial access (DA) Internet customers; and
(c) Cable Internet customers served under Third Party Internet Access (TPIA)
agreements.
- 5 -
13. IP addresses are assigned to customers in such a way that they may receive any
available Distribute! IP address at any time. This means that any particular IP address can be
assigned to multiple customers over a period of time.
14. Where the IP address has been reserved for use by DSL or DA services,
Distribute! may be able to identify the customer account associated with an IP address. This,
however, can only be done if Distribute! is provided with accurate and reliable information
linking a Distribute! IP address to an exact date and time.
15. In some circumstances, Distribute! may be unable to provide the customer
information when the records associated with the identification of the customer have been
purged. As a policy, Distribute! purges records when they are no longer required for business
purposes.
16. In addition, where the IP address has been reserved for use by cable Internet
customers, the IP address assignment is done by the TPIA cable operator. In such a case,
Distribute! has no ability to identify the customer account associated to that IP address. Only the
TPIA operator may have that information.
0036
0037
- 6-
17. Distribute! requires certain information in order to accurately match an IP address
to its customer information including exact date and time.
18. The timing of the recording of the IP address is a crucial matter for accurate
identification of a customer. Computer clocks are known to drift. Distribute! has not considered
the logs it employs to correlate IP addresses to customer accounts to be a critical measure, since
these records are not used for billing purposes.
19. Only if Distribute! knows the exact time differential between the clock on the
computer used at Canipre and the clock used by Distribute! could an accurate correlation be
made. No information as to the clock synchronization state at the time of creation of the logs in
Exhibit "A" of the Logan Affidavit has been provided. Without this information Distribute! is not
able to reliably identify the customer account assigned that IP address at the time of the log's
creation.
20. The Logan Affidavit also provides city information that could assist in matching
the IP address to Distribute! records. However, the geographic location of the subscriber
associated with the IP address matched the geographic location provided in Exhibit "A" to the
Logan Affidavit in only one instance. In all other cases, the geographic location provided in the
Logan Affidavit does not match the geographic location of the subscriber associated with the IP
address on the date and at the time provided.
- 7-
0038
D. How Distribute} retrieves customer information
21. In order to determine the customer information associated with an IP address at
any one time, Distribute! must conduct sequential queries of four servers and an IP address
allocation database.
22. The queries and analysis of the results must be performed by a trained technician.
That technician's results must be re-verified by a separate independent set of queries performed
by another technician. If a result is found, it is then passed to a separate staff member in the
Privacy Office.
23. This Privacy Office member then performs additional queries of Distributel's
customer administration systems. The result will form a hypothesis as to which customer was
associated with the specific IP address at the date and time provided. Once additional checks
have been done, and the information gathered in accordance with policies and practices, the
customer identification can be provided pursuant to an order.
E. How BitTorrent works
24. The Moving Parties allege that works were transmitted via a file-sharing protocol
known as BitTorrent.
25. BitTorrent is a protocol ("Protocol") designed to allow for the efficient
distribution of files over the Internet between multiple computers. Each computer is known as a
0039
- 8 -
Peer. The advantage of using the Protocol is that it allows multiple computers to efficiently
download a file without requiring a central server. This is because the files are transferred in
pieces with each Peer sharing the workload.
26.
Distributel's Motion Record, Affidavit of David Zvekic ("Zvekic Affidavit"), paras 10, 16,
TAB2.
Since BitTorrent specifies the transfer of information between computers as Peers
it is commonly referred to as a "peer-to-peer" protocol. The transfer of data is also commonly
referred to as "file sharing" because computers transfer the data amongst each other rather than
download from a single specific source such as a file server.
Distributel's Motion Record, Zvekic Affidavit, paras 10, 11, TAB 2.
27. The Protocol requires that each file being transmitted be subdivided into multiple
pieces. Each piece is a small fragment, comprising as little as 0.1% of the entire file. Each Peer
must collect all of the pieces before it has succeeded in obtaining a complete file.
28. Multiple pieces can be downloaded independently from multiple Peers
concurrently. If there is a missing piece, no one can succeed in downloading the complete file
unless a Peer possessing that missing piece joins the network.
Distributel's Motion Record, Zvekic Affidavit, para 14, TAB 2.
29. Peers do not offer pieces to each other. They only request them from each other.
The protocol does not allow for Peers to spontaneously upload data to each other without a
request.
- 9 -
0040
30. Peers may join or disconnect from the network at any time, and join or disconnect
from each other at any time. The presence of a Peer does not establish that it has possession of
any piece of the file.
31. In order to download a file using the Protocol a BitTorrent client software must be
obtained first ("Client"). Then a torrent file is downloaded that contains meta-info ("Torrent").
Every computer attempting to download or upload a piece of the same file requires a copy of the
same Torrent data.
32. The Torrent does not contain any part of the actual file. Instead, it contains
information about the file including the file name, size, a 160 bit message known as a hash
("SHAl"), how many pieces make up the complete file, the size of the pieces that the file is
separated into, and the Internet name of a Tracker or multiple Trackers.
33. A Tracker does not distribute any copies of a file either but is essential to allow
one computer to locate another computer distributing the same file in whole or in part using the
SHAl information. The Client communicates with the Tracker to exchange the IP address
through which the computer is connected, enabling the transfer of data between the computers.
- 10-
0041
34. Peers with complete copies of the file are known as Seeders. Seeders upload,
piece by piece, copies of a file when requested by a Peer.
35. Each computer with partial or no copies of the file is known as a Leecher. A
Leecher may request a piece of a file from a Peer. Even though a Leecher does not possess a
complete copy of a file, a Leecher should respond to requests of other Peers to share whatever
piece or pieces that they may have.
Distributel's Motion Record, Zvekic Affidavit, paras 24-25, TAB 2.
36. As part of the transfer process, each Peer will transmit a bitfield message to the
other Peers. That message will show exactly how many pieces of the file the Peer has and what
pieces are missing. The Protocol specifies that Peers must track bitfield information and update it
during file transfer. In addition, when a Peer downloads an additional piece of a file, it transmits
out a "have" message to the other Peers. This allows all Peers to track the progress of the
download in order to maximize efficiency.
37. Since each transfer includes a bitfield message, each transfer includes information
that shows exactly how much of a file was provided by a particular Peer and how much of the
file that particular Peer has. This information can be obtained prior to the Client commencing a
download.
Distributel's Motion Record, Zvekic Affidavit, paras 28, 33 TAB 2.
0042
- 11-
38. Exhibit "A" of the Logan Affidavit does not indicate the amount of each file that a
specific Peer using the recorded IP address possessed. As noted above, that information is
contained in a bitfield message and would have been exchanged as part of the normal operation
of the Protocol.
39. In addition, in order to communicate and transfer a piece of a file, it is essential
that Peers be connected over the same period of time. While downloading a file, a Client may
observe any number of other Peers that appear on the Tracker. The Client may communicate
with those Peers, without knowing if any of them ever possessed a substantial portion of the file,
unless reference is made to the bitfield and "have" messages those Peers are transmitting.
40. The information about how many pieces are required to make a full copy of a
particular file using the Protocol is readily available online if the file identifier is known. From
this information and the size of the three films at issue, it can be shown that a piece of a film
transferred using the Protocol may consist of as little as 8 seconds of the feature-length films.
F. The adverse market effect on Distribute}
41. The ISP sector is dominated by a few large incumbent telephone and cable
companies. Independent ISPs as whole, including Distribute!, Access Communications Co-
operative Limited and ACN Inc., together garner only 6.7% of the residential Internet revenues
- 12-
0043
from 7.6% of the total Canadian Internet subscribers. Independent ISPs therefore face significant
competition from very powerful competitors.
42. The Moving Parties only seek the identities of customers of three independent
ISPs. Furthermore, in Distributel's response to the November order granted as a result of the
previous motion brought by NGN, 17 IP addresses were identified as requiring further
investigation from the cable companies. No steps were taken to obtain an order for disclosure
from the cable companies in this court file. The current motion is a request for additional
independent ISP customer identities only.
43. Distribute! is concerned with the Moving Parties' apparent selectivity. Motions
for disclosure of confidential customer information have been well publicized, and will likely
continue to be so. Canadians value their privacy. Should the independent ISPs appear to be
disproportionate targets for disclosure motions, it could negatively impact the ability of
independent ISPs to compete in an already tough market. This is of significant concern to
Distribute!.
II. POINT IN ISSUE
44. The sole point in issue is whether or not this Court should exercise its discretion
to grant the motion for leave to conduct examination for discovery in writing of a non-party
pursuant to Rule 238.
- 13-
0044
45. Distribute! submits that the Moving Parties have failed to meet the established
legal requirements and therefore the Court must deny the motion.
Ill. SUBMISSIONS
A. The Moving Parties have failed to meet the required criteria
46. In BMG Canada Inc. v. John Doe, 2005 FCA 193 ("BMG"), the Federal Court of
Appeal established the test that a Court should apply to determine if an ISP should be ordered to
disclose the identity of its subscribers. The BMG case involved a motion for leave to examine a
non-party to uncover the identities of customers attached to various IP addresses that were
alleged to have been used to engage in the file sharing of recorded music. The case is important
because it set out the requirements for when such an order can be sought and the evidentiary
standard required in order for the Court to grant the motion.
47. The Court in BMG made two major determinations. First, the Court conclusively
approved the use of a motion under Rule 238 as broad enough to permit discovery of an ISP in a
copyright infringement case. Second, the Court held that the principles applicable to an equitable
bill of discovery are equally applicable to a motion under Rule 238.
48.
(a)
(b)
Moving Parties' Motion Record, BMG, paras 25, 30-31, TAB 5.
The following are the criteria required. The Moving Parties must show:
That the evidence demonstrates a bona fide claim against the defendants;
That the public interest in the disclosure of the information is outweighed by the
legitimate privacy concerns of the affected persons;
49.
- 14-
0045
(c) That the information in possessiOn of the ISP companies must be relevant
information on an issue in the action and the non-party more than a mere
bystander;
(d) That the information cannot be otherwise obtained in an informal manner or from
another source;
(e) That the action cannot be furthered until the requested information is obtained;
(f) That only the required information will be extracted; and
(g) That the order will not cause undue inconvenience or expense and that there will
be reasonable compensation provided to the ISP company.
Moving Parties' Motion Record, BMG, paras 32, 34-37, 44, TAB 5.
In order to succeed, the Moving Parties must demonstrate that they meet each of
the above criteria. They have failed to do so. Most notably, they have not demonstrated that they
have a bona fide claim and they have failed to show that the interest in disclosure outweighs the
privacy interests of the affected person. As such the motion should be dismissed.
B. The Moving Parties have failed to demonstrate a bona fide claim
50. The Moving Parties' are required to adduce evidence to show they meet the
threshold of a bona fide claim against the proposed defendant. A bona fide claim must comply
with the following:
(a) there must be adequate evidence to support the Moving Parties' allegations;
51.
- 15-
0046
(b) the Moving Parties must not have an improper purpose for seeking the
information requested; and
(c) the Moving Parties must intend to bring an action.
Moving Parties' Motion Record, BMG, para 34, TAB 5
The Moving Parties must comply with all three elements of the test above. In this
case, they have failed to provide adequate evidence and have brought their motion on the basis of
what appears to be an improper purpose.
a) Failure to produce adequate evidence
52. The evaluation of the Moving Parties' evidence is not one of likely success at
trial, but the requirement of demonstrating a bona fide claim does allow the Court to weigh the
strength of the Moving Parties' evidence.
53. The affidavit evidence submitted by the Moving Parties contains numerous errors,
inconsistencies and missing links. These factual problems throw the reliability of all the evidence
into question.
54. Mr. Logan has sworn that he used "a proprietary technology platform that
provides effective means to detect unauthorized distribution of movies." This proprietary
technology platform is not identified. Nor is there a description of how it works or how prone it
is to error.
Moving Parties' Motion Record, Logan Affidavit, para 3, TAB 2.
0047
- 16-
55. Exhibit "A" of the Logan Affidavit contains a column marked "city". Mr. Logan
states that his software can track an IP address to a particular geographic region. Again, the
process by which this is done is not shown or explained.
Moving Parties' Motion Record, Logan Affidavit, para 23, Exhibit A, TAB 2.
56. Distribute! examined the IP addresses listed and determined that the listed
geographic locations in the Logan Affidavit were erroneous in all but one entry if the date and IP
address were assumed to be correct. In other words, when Distribute! matched the IP address at
the time noted in column "HitDateUTC", it came up with an almost entirely different set of data
for the "city" column.
57. This indicates any or all of the following possibilities:
(a) The city information is incorrect;
(b) The IP address information is incorrect;
(c) The time information is incorrect; and/or
(d) The date information is incorrect.
58. Evidence of the proper functioning of the platform is necessary for the Court to
evaluate the claim. Distribute! has determined that the Moving Parties' evidence of geographic
locations is almost entirely erroneous. This calls into question the validity of all the evidence
provided by the Moving Parties.
- 17-
0048
59. The Moving Parties' evidence also includes several inconsistences. For example,
the Notice of Motion and the Logan Affidavit allege that each Peer copied and distributed all
three of the films.
Moving Parties' Motion Record, Notice of Motion, para 1 of the grounds, TAB 1.
Moving Parties' Motion Record, Written Representations, para 12, TAB 3.
Moving Parties' Motion Record, Logan Affidavit, paras 14, 24, 27, TAB 2.
60. In comparison, other aspects of the Moving Parties' motion record indicate that
each Peer may be accused of unauthorized copying of just one of the films.
Moving Parties' Motion Record, Logan Affidavit, paras 15-16,30, TAB 2.
61. The most troubling aspect of the evidence submitted, however, is not the
weakness of what was provided, but the significant evidence that was not provided.
62.
(a)
The Moving Parties' omitted to introduce the following crucial evidence:
They have not indicated how much of the work is in the possession of each Peer
for which an Distribute! IP address was recorded;
(b) They have not shown that a substantial portion of a film was infringed by any one
of the Peers for which a Distribute! IP address was recorded;
(c) They have not shown how many pieces made up the Protocol for each film and
how many of those pieces each Peer possessed;
63.
0049
- 18 -
(d) They have not described the process by which the proprietary software identifies
the IP address that was allegedly involved in the unauthorized sharing;
(e) They have not identified, in contrast to the November Motion, the P2P networks
through which the file transfers were occurring;
(f) They have not identified for the Court the Peer's pseudonym or network name
even though that information was collected; and
(g) They have not identified the video files' metadata including the size of the files
that were transferred, even though they must have this information based on how
the Protocol works.
Therefore, on the totality of the evidence adduced and lack thereof, the Moving
Parties have failed to demonstrate a bonafide claim.
b) An improper purpose
64. The Moving Parties have also pursued this motion for what appears to be an
improper purpose and cannot therefore succeed.
65. The Moving Parties appear to be engaged in a practice to profit by engaging in
zealous copyright enforcement, a practice referred to as "copyright trolling". It involves sending
letters to customers demanding significant financial compensation for the alleged copyright
infringement. The amount of money demanded far exceeds any potential damages to the Plaintiff
arising from the alleged breach. The customers are threatened with legal action if they do not
comply. Following the November Motion, at least one Distribute! customer received such a
letter.
- 19- 0050
Distributel's Motion Record, Puckett Affidavit, Exhibit A, TABlA.
66. In the November Motion, the Plaintiff NGN stated in its written representations
that once addresses and names were provided the company would "send them cease and desist
letters and, if required, to add them as named Defendants to this action." This exact same
sentence is repeated in the Moving Parties' current representations before this Court. The
correspondence a customer shared with Distribute! showed that the customer did not merely
receive a cease and desist letter. Instead the customer was faced with a demand for settlement
that misrepresented and exaggerated the amounts in statutory damages that NGN was entitled to
recover under existing copyright law.
Moving Parties' Motion Record, Written Representations, para 4, TAB 3.
Distributel's Motion Record, Puckett Affidavit, Exhibit A, TABlA.
67. On November 7, 2012, a majority of the provisiOns of the Copyright
Modernization Act came into force, including amendments to the provisions establishing
statutory damages for non-commercial infringement. During parliamentary debate surrounding
the legislation, the previous statutory damage regime for non-commercial infringements was
criticized as being completely disproportionate. Consequently, a significant reduction in the
statutory damages for non-commercial copyright infringements was a key amendment made in
order to deter a class of plaintiffs :from litigating claims like the one presently before this Court.
Distributel's Motion Record, Excerpt from the House of Commons Debates, Hansard,
October 18, 2011, TAB 4.
Distributel's Motion Record, Industry Canada Fact Sheet on Copyright Remedies, TAB 5.
- 20-
0051
68. However, in the letter sent to the Distribute! customer, dated November 27, 2012,
NGN made the following statement:
69.
Should you not agree to these terms, NGN Prima Productions Inc reserves its right to seek a higher amount
by adding you as a defendant in Court FileT -2062-12. The Copvright Act allows the court to assess
statutory damages anywhere between $1000 and $20,000. We are aware of two cases where the court
awarded $5000 per film for compensation for copyright infringement, and of one case where the court
awarded $1000 for each of 14 films that were copied and distributed without authorization. In each case,
the court also ordered that additional amounts be paid to cover costs and interest.
In addition, a bill before the Canadian Parliament would allow copyright owners to recover up to $5000 for
non-commercial infringements. (emphasis added)
Distributel's Motion Record, Puckett Affidavit, Exhibit A, TAB 1A.
The implication in the letter is that the Distribute! customer could be facing
statutory damages of up to $20,000 and an additional $5,000 from the new provision for a total
of $25,000. This is a misrepresentation of the law.
70. The amendments referred to had in fact already been passed by Parliament and
was in force 20 days prior to the date of the letter. Furthermore the effect of the amendments was
to reduce the maximum statutory damages for non-commercial infringement to a maximum of
$5,000. Ass. 38.1(b) states:
71.
38.1 (1) Subject to this section, a copyright owner may elect, at any time before fmaljudgment is rendered,
to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages
for which any one infringer is liable individually, or for which any two or more infringers are liable jointly
and severally,
(b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all
infringements involved in the proceedings for all works or other subject-matter, if the infringements are for
non-commercial purposes. (emphasis added)
Distributel's Motion Record, Copyright Act (RSC 1985, c. C-42), s. 38.1, TAB 6.
In addition to copyright trolling, the Moving Parties are affecting the market for
ISP services by unfairly targeting small independent ISP companies such as Distribute!. These
ISP companies represent only 7% of the ISP market in Canada. Yet the Moving Parties have not
- 21 -
0052
sought a similar motion for discovery for customers of the larger ISP companies representing the
other 93% of the population.
72. The Moving Parties' choice to pursue independent ISP companies is unfair and
adversely affects the highly-competitive market for residential Internet access services. 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. The perception that the
subscriber may be more of a target and therefore more likely to have their privacy infringed may
be enough to negatively affect consumer choice.
C. The Moving Parties have failed to show disclosure outweighs privacy interests
73. One of the most important criterion established by BMG requires the Court to
determine whether the public interest of disclosure outweighs the legitimate privacy concerns of
the person who would be identified should the order be granted.
Moving Parties' Motion Record, BMG, para 36, TAB 5.
74. The Moving Parties' motion presents a threat to the privacy rights of Distributel
subscribers. As the Court stated in BMG:
Modern technology such as the Internet has provided extraordinary benefits for society, which includes
faster and more efficient means of communication to wider audiences. This technology must not be
allowed to obliterate those personal propertv rights which society has deemed important. Although privacy
concerns must also be considered, it seems to me that they must yield to public concerns for the protection
of intellectual property rights in situations where infringement threatens to erode those rights. (emphasis
added)
-22-
0053
75. Until sufficient evidence is submitted that adheres to the standard required by the
Court, Distribute! remains the protector of its subscribers' privacy rights. That protection can
only be waived when sound evidence is provided to justify the loss of those rights.
76. Even if a bona fide claim is presented, the Court must exercise caution in ordering
disclosure so that privacy rights are invaded only in the most minimal way.
77. Companies are not at liberty to voluntarily disclose personal information such as
identities, unless they have the customers consent, or are required to disclose pursuant to a court
order.
78. Subscribers have an expectation that their identity will be kept private. That
expectation is legally supported by section 3 of the Personal Information Protection and
Electronic Documents Act ("PIPED A"):
79.
3. The purpose of this Part is to establish, in an era in which technology increasingly facilitates the
circulation and exchange of information, rules to govern the collection, use and disclosure of personal
information in a manner that recognizes the right of privacy of individuals with respect to their personal
information and the need of organizations to collect, use or disclose personal information for purposes that
a reasonable person would consider appropriate in the circumstances.
ISP companies such as Distribute! are also bound by PIPEDA to retain the private
information of their subscribers for as long as is necessary to allow an affected subscriber to
exhaust available recourses under PIPED A.
Distributel's Motion Record, PIPEDA s. 7(3)(c), 8(8) and s. 28, TAB 7.
-23-
0054
80. The standard of evidence required to support a bona fide claim is not just a
response to the high value our society places on the protection of privacy, but is also aimed at
protecting the innocent.
81. In BMG, the Court of Appeal stated that the greatest care should be taken to avoid
delay between the investigation and the request for information. This was a factor that might
justify a court in refusing to make a disclosure order, for the very reason that it could affect the
rights of the innocent:
82.
"If there is a lengthy delay between the time the request for the identities is made by the plaintiffs and the
time the plaintiffs collect their information, there is a risk that the information as to identity may be
inaccurate. Apparently this is because an IP address may not be associated with the same individual for
long periods of time. Therefore it is possible that the privacy rights of innocent persons would be infringed
and legal proceedings against such persons would be without justification. Thus the greatest care should be
taken to avoid delay between the investigation and the request for information. Failure to take such care
might well justify a court in refusing to make a disclosure order." (emphasis added)
In the case at hand, Exhibit "A" of the Logan Affidavit shows that the retrieval
dates ranged from October 20, 2012 to December 5, 2012. The motion was brought on January
10, 2013. The moving parties provided no explanation for the lengthy delay.
Moving Parties' Motion Record, Logan Affidavit, Exhibit A, TAB 2.
83. For all the above reasons, the Moving Parties have failed to show that the public
interest of disclosure outweighs the legitimate privacy concerns of the person who would be
identified should the order be granted.
84.
D. The Moving Parties have failed to show no other way to obtain the
information
Clear evidence must be adduced to show that the information requested by the
Moving Parties cannot be obtained from another source.
-24-
0055
85. No such evidence or statements were made by the Moving Parties to prove that
the identities sought could be not be established through other means. In order to satisfy this
criterion, the Court should require evidence from the Moving Parties that that the ISPs, including
Distribute!, are the only practical source of the information required by the Moving Parties.
86.
E. The Moving Parties have failed to include the payment of reasonable
compensation in the draft order
In Voltage Pictures LLC v. Jane Doe and John Doe, 2011 FC 1024 ("Voltage), an
uncontested Rule 238 motion judgement relied on by the Moving Parties', the Plaintiff proposed,
and the Court ordered, that the Plaintiff reimburse any reasonable expense incurred by the ISP
companies in collecting the information requested.
Moving Parties' Motion Record, Voltage, para 26, and judgment, TAB 4.
87. In this case, the Moving Parties have not provided for reasonable compensation in
the draft order. The Court is required to order compensation for reasonable expenses incurred by
the non-party.
Distributel's Motion Record, Rule 238(3)(d), TAB 8.
IV. RELIEF SOUGHT
88. For all of the foregoing reasons, Distribute! respectfully requests that the motion
for leave to conduct an examination for discovery of Distribute! be denied.
-25-
0056
89. In the alternative, should the Court order disclosure, Distribute! requests that the
order reqmre the Moving Parties to provide reasonable compensation for the information
extraction.
90. As a non-party and regardless of the outcome of the motion, Distribute! requests
costs of this motion on a substantial basis.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 8th DAY OF FEBRUARY,
2013
Fas en Martineau DuMoulin LLP
55 Metcalfe Street, Suite 1300
Ottawa, ON KIP 6L5
Tel: (613) 236-3882
Fax: (613) 230-6423
Gerald (Jay) Kerr-Wilson
Email: jkerrwilson@fasken.com
Marisa Victor
Email: mvictor@fasken.com
Counsel for Distribute! Communications
Limited
HOUSE OF COMMONS
(HAMBRE DES COMMUNES
CANADA
of
VOLUME 146

NUMBER 031

1st SESSION
OFFICIAL REPORT
(HANSARD)

Tuesday, October 18, 2011
Speaker: The Honourable Andrew Scheer
41st PARLIAMENT
0057
0058
October 18, 2011 COMMONS DEBATES 2107
Hon. Gordon O'Connor: Mr. Speaker, I will keep my comments
brief.
As I said before, we are elected in the House of Commons to enact
legislation. We have a right to introduce legislation, to debate it here
and, if successful, to pass it. We can amend any law we want going
back to 1867. We are not talking about privilege when introducing
this bill. If this bill is not allowed to come in and we cannot amend
previous laws then my privileges will be violated.
The Speaker: I thank hon. members for their interventions. I will
take the case under advisement and come back to the House with a
decision in due course.
GOVERNMENT ORDERS
[Translation]
COPYRIGHT MODERNIZATION ACT
Hon. Christian Paradis (Minister of Industry and Minister of
State (Agriculture), CPC) moved that Bill C-11, An Act to amend
the Copyright Act, be read the second time and refeiTed to a
committee.
He said: Mr. Speaker, I am pleased to speak this morning at
second reading of Bill C-11, the Copyright Modernization Act.
[English]
With the permission of the House, I will be splitting my time with
the Minister of Canadian Heritage and Official Languages.
The Speaker: Does the hon. minister have the unanimous consent
of the House to share his time with the Minister of Canadian
Heritage and Official Languages?
Some hon. members: Agreed.
[Translation]
Hon. Christian Paradis: Mr. Speaker, as you know, this is the
second time that the govemment has introduced this bill. During the
previous Parliament and for almost a year, the Copyright
Modernization Act-then known as Bill C-32-was carefully
examined and debated by parliamentarians and stakeholders.
We know how much time and effort members of Parliament,
stakeholders and Canadians spent on this bill. The legislative
committee created to examine the bill heard from more than 70
witnesses and received more than 150 submissions. All stakeholders
were consulted, and the government received letters from across the
country.
[English]
We fully expect that when the bill is once again refeiTed to a
House of Commons committee the work and testimony from the
previous Parlian1ent will be carefully considered and taken into
account.
Over the course of the committee hearings on this bill in the last
Parliament, there were two clear messages that emerged. The first
message was that this bill balances the interests of the various
stakeholders. The bill, a product of wide-ranging consultation and
discussion, sets out a balanced approach to corporate refonn in the
Government Orders
digital age. While the government strongly believes that this bill
delivers the best balance between the interests of consumers and the
rights of the creative community, we are open to technical
amendments that may improve the clarity and intent of certain
provisions.
Second, we heard that Canada urgently needs to pass legislation to
update the Copyright Act. By reintroducing this same bill,
parliamentarians will be able to build on this previous work in
order to enable the swift passage of these important legislative
updates. Each year that Canada goes without modem copyright laws,
the need for such modernization becomes more evident as
technology evolves and new issues emerge.
The last time the act was changed, there were no MP3 players.
Video stores were still full of VHS tapes. No one thought we would
be able to take pictures with a cellphone and upload them onto
computer screens around the world, or use a cellphone to download
songs and movies.
The world has changed so much since then that the Copyright Act
seems like a law for a different era. The time has come to modemize
Canada's copyright laws and bring them in line with the demands
and technologies of the digital age.
(1035)
[Translation]
This bill must be passed in order to modernize Canada's copyright
regime in accordance with the government's digital economy
strategy.
Digital technology opens new markets and expands the reach of
companies. It brings together people and ideas in a way that was still
unimaginable only a few years ago. When individuals, companies
and national economies create and adopt these new technologies, a
number of important things are achieved. Productivity and
innovation increase, and new products, processes and business
models see the light of day.
The growth of the digital economy in Canada depends on a clear,
predictable and fair copyright regime that supports creativity and
innovation while protecting copyright holders.
The global economy remains fragile. This bill will help to protect
existing jobs and create new ones. It will spark innovation and attract
new investments in Canada. It will give creators and copyright
holders the tools they need to protect their work and increase their
business. The bill establishes clearer rules that will allow all
Canadians to fully participate in the digital economy, both now and
in the future.
One of the bill's main objectives is to balance the interests of all
stakeholders in the copyright regime. Achieving this balance has
become increasingly complex given the exponential growth of the
Internet. Canadians can obtain protected works online, sometimes
through revenue-generating platforms or services, but also through
free services, both legitimate and illegitimate. Our capacity to use
high-quality Web services to obtain, protect and create copyrighted
works is essential to our economic success and our cultural presence
in the world.
0059
2108 COMMONS DEBATES October 18, 2011
Government Orders
That is why, in 2009, our govemment tumed to Canadians to get
their ideas and advice on copyright reform in the digital age.
Thousands of individual Canadians, companies and stakeholder
organizations shared their opinions on the best way to adapt
Canada's copyright regime to this new age. These consultations
showed that Canadians were becoming increasingly aware of the
importance of copyright in their daily lives and in our digital
economy.
On the one hand, this bill seeks to reflect today's reality where the
private, non-commercial use of copyrighted material is common-
place. The bill would authorize many of these uses and establish
parameters for cases which, to date, were not well defined.
For example, Canadians could copy works legally obtained on
their computers and mobile devices to enjoy them wherever they
may be. They could store content in and retrieve it from the
infonnation cloud or use a network PVR service.
It will also be legal to integrate protected works into a work
generated by a user for non-COl11111ercial purposes. That would
include recording a home video of a child dancing to a song, or
creating original mixes of songs and videos. This exception requires
that the rights and interests of copyright holders be respected. There
are many examples where copyright holders have benefited from
exposure on the Intemet owing to work done by users.
Finally, the bill updates the Copyright Act to reflect new
technologies and uses by broadening the exceptions and creating
new ones for educational and training institutions, technical
procedures, the development of software, broadcasters and the
disabled.
I would like to point out that great care was taken when drafting
these provisions to reflect the needs and interests of copyright
holders. The provisions do place limits and restrictions on the use of
protected works.
For example, many of these exceptions do not apply to works
protected by a technological protection measure or digital lock.
Copyright holders told us that their digital and on-line business
models depend on the robust protection provided by digital locks.
Therefore, the bill strikes a good balance. It allows Canadians to
make reasonable use of content while providing creators and
businesses, whose work depends on this content, with the tools and
certainty they need to launch new products and services.
(1040)
[English]
While our govemment knows that the overwhelming majority of
Canadians are law-abiding, we are concerned about the threat of
major penalties that hang over Canadians who infringe copyright for
non-commercial purposes. Currently, those who have been found to
violate copyright can be found liable for damages from $500 to
$20,000 per work.
If people illegally download five songs, for example, they could
theoretically be liable for $100,000. In our view, such penalties are
way out ofline. As such, the bill proposes to reduce the penalties for
non-commercial infringement. Under its provisions, the courts
would have the flexibility to award total damages of between $1 00 I
and $5,000.
[Translation]
However, while the bill reduces penalties for non-commercial
infringements, it still seriously punishes those who profit from
copyright infringement. Penalties of $500 to $20,000 per infringe-
ment will still apply to piracy for commercial purposes. In addition,
the bill proposes new tools to target those who find techniques to
infringe online copyright and it sets out serious penalties for those
who make money by creating and distributing devices and services
designed to hack digital locks. It will be very difficult to benefit from
piracy.
[English]
Mr. Charlie Angus (Timmins-James Bay, NDP): Madam
Speaker, I listened with great interest to my bon. colleague and I
heard the word "balanced" being used time and time again, and yet
the bill is very unbalanced.
We are not here talking about copyright, the right of creators and
who has their copies. This bill is about corporate right, the right of a
corporate entity to decide what right citizens have. It is a sleight of
hand. It is very important for people to recognize that the bill is
offering citizens' rights that they will not be able to exercise if a
corporate entity puts a digital lock on the product.
Looking at how our WIPO compliant countries around the world
have dealt with the issue of digital locks, and under sections 10 and
II of the WIPO copyright treaty, it talks about the right to have
exemptions of the digital lock as long as it is not being broken or
infringed for commercial purposes, but in order to give citizens the
right to access works to which under a legislative regime they have a
right to access. However, under the bill, any rights that the citizen is
granted in the bill are arbitrarily taken away with the digital lock
provisions.
Will the govermnent work with the New Democratic Party to fix
the digital lock provisions to ensure they do not unfairly target
students and consumers who are legally entitled to access works? If
we fix the digital lock provisions, would the Conservatives be
willing to work with us to ensure we are WIPO compliant but also
responding to the needs that citizens have on this issue?
(1045)
[Translation]
Hon. Christian Paradis: Madam Speaker would like to thank the
hon. member for his question.
I was coming to the aspect of innovation. As the member so
rightly said, we need to talk about balance here because that is what
is reflected in this bill.
ARCHIVED -Fact Sheet on copyright Remedies - Intellectual Property Policy Director... Page 1 of 3
1+1
Industry lndustrie
Canada Canada
Intellectual Property Policy
Industry Canada
ARCHIVED - Fact Sheet on copyright Remedies
Archived Content
O.Q.60
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"Contact Us" page.
Background
An Act to Amend the Copyright Act (Bill C-32), adopted in April 1997, introduced new remedies for
creators of all kinds of works. These remedies, which came into force on October 1, 1999, are
designed to provide stronger deterrents against copyright infringement and to better compensate
copyright owners for losses suffered because of infringement.
Because the extent of infringement is particularly difficult to prove, copyright owners were often
inadequately compensated for losses suffered as a result of infringement of their rights. Bill C-32
introduced that guarantee a minimum award once infringement is proven, and which should serve to
deter future infringements.
In order to more effectively halt infringements, the amendments also include a "wide injunction"
which covers a broader range of copyright protected materials than the injunctions previously
available in such cases.
Further, in some circumstances, copyright owners will now be able to avail themselves of summary
procedures which are more expedient and less expensive than full court actions.
Interested parties
The remedies are available to all types of copyright owners including authors, composers lyricists,
performers, producers ofsound recordings and audiovisual works, as well as software and
multimedia businesses.
1) Statutory Damages
What are statutory damages?
In respect of the infringement of copyright, a copyright owner may choose to receive "statutory
damages." Statutory damages allow the copyright owner to receive an amount between $500 and
$20,000 in respect of each work or subject matter infringed by the defendant.
Why did the Bill introduce a statutory damages regime in the Copyright Act?
http://www. ic. gc.ca/ eic/ site/ippd-dppi.nsf/ englip00090 .html 07/02/2013
c A copyright owner who commences proceedings tor infringement must prove not only the Q Q J 1
infringement, but also the losses suffered as a result. However, it is often difficult, sometimes
impossible, to prove such losses because evidence as to the extent of infringement is usually
- difficult and/or expensive to find. Statutory damages alleviate this difficulty by guaranteeing a
minimum award of damages once infringement is established.They also ease the evidentiary burden
on the plaintiff in proceedings for infringement, deter future infringements, reduce the cost of
litigation and encourage the parties to settle matters out of court.
How is the amount of statutory damages determined?
I - General Rule
In respect of each work or subject matter infringed, the court may award a sum between $500 and
$20,000. The precise sum awarded is entirely within the court's discretion. However, the court must
have regard to the following circumstances: the good or bad faith of the defendant; the parties'
conduct before and during the court proceedings; and the need to prevent other infringements of
the copyright in question.
II - Particular Cases
Innocent Infringer
Where a court is satisfied that a defendant infringed copyright innocently, it may lower the minimum
amount of statutory damages to $200 per work or other subject matter infringed. A defendant is
considered to be innocent if the defendant was not aware and had no reasonable grounds to believe
that copyright was infringed.
Multiplicity of works on the same format
When a medium contains more than one copyrighted work or subject matter and if the application of
the general rule (subsections 38.1(1) and (2) of the Bill) results in an award of statutory damages
that is disproportionate to the seriousness of the infringement, the court may award less than the
minimum amount specified in those provisions.
For example: In the context of digitization, media such as CD-ROMs contain increasingly large
numbers of works or subject-matter in which copyright subsists. However, the application of the
general rule ($500 to $20,000 per work infringed) may result in awards of statutory damages that
are clearly disproportionate to the copyright owner's losses. In such instances, the court may depart
from the general rule and reduce the amount at its discretion.
Collective societies
Collective societies that license the use of works or other subject-matter in which copyright subsists
may recover, as statutory damages, the value of the royalties (or price of the licence) multiplied by
a factor between three and 10, as the court considers just. This provision maintains proportionality
between the value of a royalties (i.e. the loss incurred by the copyright owners) and the damages
awarded. The use of a multiplying factor is intended to encourage users to obtain the appropriate
licences beforehand.
For instance: A licence to play taped music at a wedding might cost $60. The damages to be paid
under subsection 38.1(4) would therefore range between $180 (3 x $60) and $600 (10 x $60). The
judge would determine the appropriate award within these two values based on the following
factors: the good or bad faith of the defendant; the parties' conduct before and during the court
proceedings; and the need to prevent other infringements of the copyright in question.
Are there any cases where statutory damages cannot be awarded?
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Statutory damages may not be awarded against educational institutions. In addition, statutory Q J 6 2
damages are not available in respect of infringements arising from the parallel importation of works
or other subject matter or from dealings with such imported works or other subject matter.
Are there any other countries with statutory damages regimes?
The United States, Israel, Russia and Germany (for certain uses) have statutory damages regimes in
their copyright legislation.
2) Wide Injunction
In respect of copyright infringement, an injunction is an order made by a court ordering someone to
refrain from carrying on the activities which constitute the infringement. The "wide injunction"
introduced in Bill C-32 allows a court to grant an injunction, not only in respect of a specific work,
but also in respect of works later acquired by the plaintiff, even though he or she was not, at the
time the proceedings were commenced, the owner of the copyright or the person to whom an
interest in the copyright has been granted; and similarly, in respect of works that did not exist at
the time the proceedings were commenced. In other words, the wide injunction should prevent
infringement of copyright in any of the works in which the plaintiff currently has or will obtain a
copyright interest.
Date Modified: 2011-10-26
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0063
Copyright Act (R.S.C., 1985, c. C-42)
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final
judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1),
an award of statutory damages for which any one infringer is liable individually, or for which any
two or more infringers are liable jointly and severally,
(a) in a sum of not less than $500 and not more than $20,000 that the court considers just,
with respect to all infringements involved in the proceedings for each work or other subject-
matter, if the infringements are for commercial purposes; and
(b) in a sum of not less than $100 and not more than $5,000 that the court considers just,
with respect to all infringements involved in the proceedings for all works or other subject-
matter, if the infringements are for non-commercial purposes.
(1.1) An infringement under subsection 27(2.3) may give rise to an award of statutory
damages with respect to a work or other subject-matter only if the copyright in that work or
other subject-matter was actually infringed as a result of the use of a service referred to in that
subsection.
(1.11) For the purpose of subsection (1), an infringement under subsection 27(2.3) is
deemed to be for a commercial purpose.
(1.12) If the copyright owner has made an election under subsection (1) with respect to a
defendant's infringements that are for non-commercial purposes, they are barred from
recovering statutory damages under this section from that defendant with respect to any other of
the defendant's infringements that were done for non-commercial purposes before the institution
of the proceedings in which the election was made.
(1.2) If a copyright owner has made an election under subsection (1) with respect to a
defendant's infringements that are for non-commercial purposes, every other copyright owner is
barred from electing to recover statutory damages under this section in respect of that defendant
for any of the defendant's infringements that were done for non-commercial purposes before the
institution of the proceedings in which the election was made.
(2) If a copyright owner has made an election under subsection (1) and the defendant
satisfies the court that the defendant was not aware and had no reasonable grounds to believe
that the defendant had infringed copyright, the court may reduce the amount of the award under
paragraph (1)(a) to less than $500, but not less than $200.
(3) In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may
award, with respect to each work or other subject-matter, a lower amount than $500 or $200, as
the case may be, that the court considers just, if
(a) either
(i) there is more than one work or other subject-matter in a single medium, or
(ii) the award relates only to one or more infringements under subsection 27(2.3); and
(b) the awarding of even the minimum amount referred to in that paragraph or that
subsection would result in a total award that, in the court's opinion, is grossly out of
proportion to the infringement.
(4) Where the defendant has not paid applicable royalties, a collective society referred to in
section 67 may only make an election under this section to recover, in lieu of any other remedy
of a monetary nature provided by this Act, an award of statutory damages in a sum of not less
than three and not more than ten times the amount of the applicable royalties, as the court
considers just.
(5) In exercising its discretion under subsections (1) to (4), the court shall consider all
relevant factors, including
(a) the good faith or bad faith of the defendant;
(b) the conduct of the parties before and during the proceedings;
(c) the need to deter other infringements of the copyright in question; and
0064
(d) in the case of infringements for non-commercial purposes, the need for an award to be
proportionate to the infringements, in consideration of the hardship the award may cause to
the defendant, whether the infringement was for private purposes or not, and the impact of
the infringements on the plaintiff.
(6) No statutory damages may be awarded against
(a) an educational institution or a person acting under its authority that has committed an
act referred to in section 29.6 or 29.7 and has not paid any royalties or complied with any
terms and conditions fixed under this Act in relation to the commission of the act;
(b) an educational institution, library, archive or museum that is sued in the circumstances
referred to in section 38.2;
(c) a person who infringes copyright under paragraph 27(2)(e) or section 27.1, where the
copy in question was made with the consent of the copyright owner in the country where the
copy was made; or
(d) an educational institution that is sued in the circumstances referred to in subsection
30.02(7) or a person acting under its authority who is sued in the circumstances referred to
in subsection 30.02(8).
(7) An election under subsection (1) does not affect any right that the copyright owner may
have to exemplary or punitive damages.
0065
Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5)
3. The purpose of this Part is to establish, in an era in which technology increasingly
facilitates the circulation and exchange of information, rules to govern the collection, use and
disclosure of personal information in a manner that recognizes the right of privacy of individuals
with respect to their personal information and the need of organizations to collect, use or
disclose personal information for purposes that a reasonable person would consider appropriate
in the circumstances.
5. (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out
in Schedule 1.
(2) The word "should", when used in Schedule 1, indicates a recommendation and does not
impose an obligation.
(3) An organization may collect, use or disclose personal information only for purposes that a
reasonable person would consider are appropriate in the circumstances.
7. (3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies
that clause, an organization may disclose personal information without the knowledge or consent
of the individual only if the disclosure is
(c) required to comply with a subpoena or warrant issued or an order made by a court,
person or body with jurisdiction to compel the production of information, or to comply with
rules of court relating to the production of records.
8. (8) Despite clause 4.5 of Schedule 1, an organization that has personal information that is
the subject of a request shall retain the information for as long as is necessary to allow the
individual to exhaust any recourse under this Part that they may have.
28. Every person who knowingly contravenes subsection 8(8) or 27.1(1) or who obstructs
the Commissioner or the Commissioner's delegate in the investigation of a complaint or in
conducting an audit is guilty of
(a) an offence punishable on summary conviction and liable to a fine not exceeding $10,000;
or
(b) an indictable offence and liable to a fine not exceeding $100,000.
CJS6
Federal Courts Rules (SOR/98-106)
238. (1) A party to an action may bring a motion for leave to examine for discovery any
person not a party to the action, other than an expert witness for a party, who might have
information on an issue in the action.
(2) On a motion under subsection (1), the notice of motion shall be served on the other
parties and personally served on the person to be examined.
(3) The Court may, on a motion under subsection (1), grant leave to examine a person and
determine the time and manner of conducting the examination, if it is satisfied that
(a) the person may have information on an issue in the action;
(b) the party has been unable to obtain the information informally from the person or
from another source by any other reasonable means;
(c) it would be unfair not to allow the party an opportunity to question the person before
trial; and
(d) the questioning will not cause undue delay, inconvenience or expense to the person
or to the other parties.

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