Cable giants step up piracy battle by interrogating Montreal software developer and searching his home

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Canadian cable companies have ratcheted up their war on piracy by launching a new legal battle. The effort has already seen Bell, Rogers and Quebecor's Videotron search a Montreal software developer's home and interrogate him for more than nine hours.

"The whole experience was horrifying," says Adam Lackman, founder of TVAddons and defendant in a copyright infringement lawsuit launched by the television giants. "It felt like the kind of thing you would have expected to have happened in the Soviet Union." 

Telecoms and content creators Bell, Rogers and Videotron began their piracy battle last year by filing a lawsuit against Canadian dealers who sell "free TV" Android boxes — devices that can be used to stream pirated content. 

Now the companies are also targeting Lackman and TVAddons  — a library of hundreds of apps known as add-ons. Once downloaded on the Android box or a computer with added software, some of the add-ons — such as Exodus and 1Channel — allow people easy access to pirated movies, TV shows and even live television.

 

In their statement of claim filed in Federal Court on June 2, the plaintiffs allege that by developing and making TVAddons available to the public, Lackman contravened the Copyright Act.

The suit includes a long list of programming allegedly made freely available via TVAddons including Bell's Game of Thrones and Rogers' Sportsnet.

In his defence, Lackman argues TVAddons doesn't host pirated content but instead connects users to sources already available online, so it serves as nothing more than a search engine. 

Home visit

On June 9, the telecoms got an Anton Piller order, a civil search warrant that gives a plaintiff access to a defendant's home, without notice, to search for and seize relevant evidence before it can be destroyed. 

A Federal Court judge would later declare the Anton Piller order in this case "unlawful," but that was weeks after a group of men arrived at Lackman's door at 8 a.m. on June 12.

Lackman says the group included a bailiff, two computer technicians, an independent counsel and a lawyer representing Bell, Rogers and Videotron.

 

According to court documents, the group stayed for 16 hours and the plaintiffs' lawyer and independent counsel interrogated Lackman for more than nine hours. He was given a break for dinner and to speak to his lawyer, who was present.

Lackman was "not permitted to refuse to answer questions" and his lawyer wasn't permitted to counsel him in his answers.

"Any time I would question the process, they would threaten me with contempt of court proceedings," says Lackman.

Besides seizing personal items such as his computer and phone, Lackman says the plaintiffs' lawyer and independent counsel forced him to hand over passwords for his email and social media accounts. 

Order 'null and void'

But on June 29, Lackman had reason to be hopeful he'd get his possessions back after a Federal Court judge declared the Anton Piller order "null and void" and that all seized items be returned.

According to court documents, the judge said the search was supposed to be conducted between 8 a.m. and 8 p.m. but instead lasted until midnight.

The judge also said the defendant was treated unfairly during the interrogation and wasn't offered "any of the protections normally afforded to litigants in such circumstances."

He added that "the most egregious part of the questioning" was when the plaintiffs' lawyer asked Lackman to spill information about other people running operations similar to TVAddons.

 

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The judge said the purpose of the order was to preserve existing evidence, not hunt for new evidence.

He also concluded that the plaintiffs' legal team used the order to try to shut down TVAddons.

"I am of the view that its true purpose was to destroy the livelihood of the defendant, deny him the financial resources to finance a defence to the claim made against him," the judge wrote.

"The defendant has demonstrated that he has an arguable case that he is not violating the [Copyright] Act," the judge continued, adding that by the plaintiffs' own estimate, only about one per cent of Lackman's add-ons were allegedly used to pirate content.

No returns

However, Lackman's belongings still haven't been returned. Nor can he access the TVAddons website or its social media accounts, which were also seized as part of the original order.

That's because Bell, Rogers and Videotron have appealed the court decision and a Federal Court of Appeal judge has ruled that until the appeal can be heard, Lackman will get nothing back.

 

 

http://www.cbc.ca/news/business/tvaddons-piracy-rogers-bell-videotron-court-1.4231340

 

This is why one lets legal authorities do the questioning instead of private companies (or in this case, more like a corporate mob).. whoever thought this was a good idea should have a smack upside the head at best.

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The Anton Piller controversy

Anton Piller orders are only valid when passing a three-step test: when there is a strong prima facie case against the respondent, the damage – potential or actual – is serious for the applicant, and when there is a real possibility that evidence could be destroyed.

For Bell Canada, Bell ExpressVu, Bell Media, Videotron, Groupe TVA, Rogers Communications and Rogers Media, serious problems emerged on at least two of these points after the execution of the order.

For example, TVAddons carried more than 1,500 add-ons yet only 1% of those add-ons were considered to be infringing, a tiny number in the overall picture. Then there was the not insignificant problem with the exchange that took place during the hearing to obtain the order, during which Lackman was not present.

Clearly, the securing of existing evidence wasn’t the number one priority.

 

 

And the problems continued.

No right to remain silent, no right to consult a lawyer

The Anton Piller search should have been carried out between 8am and 8pm but actually carried on until midnight. As previously mentioned, Adam Lackman was effectively denied his right to remain silent and was forbidden from getting advice from his lawyer.

None of this sat well with the Honourable B. Richard Bell during a subsequent Federal Court hearing to consider the execution of the Anton Piller order.

“It is important to note that the Defendant was not permitted to refuse to answer questions under fear of contempt proceedings, and his counsel was not permitted to clarify the answers to questions. I conclude unhesitatingly that the Defendant was subjected to an examination for discovery without any of the protections normally afforded to litigants in such circumstances,” the Judge said.

“Here, I would add that the ‘questions’ were not really questions at all. They took the form of orders or directions. For example, the Defendant was told to ‘provide to the bailiff’ or ‘disclose to the Plaintiffs’ solicitors’.”

Evidence preservation? More like a fishing trip

But shockingly, the interrogation of Lackman went much, much further. TorrentFreak understands that the TVAddons operator was given a list of 30 names of people that might be operating sites or services similar to TVAddons. He was then ordered to provide all of the information he had on those individuals.

Of course, people tend to guard their online identities so it’s possible that the information provided by Lackman will be of limited use, but Judge Bell was not happy that the Anton Piller order was abused by the plaintiffs in this way.

“I conclude that those questions, posed by Plaintiffs’ counsel, were solely made in furtherance of their investigation and constituted a hunt for further evidence, as opposed to the preservation of then existing evidence,” he wrote in a June 29 order.

But he was only just getting started.

Plaintiffs unlawfully tried to destroy TVAddons before trial

The Judge went on to note that from their own mouths, the Anton Piller order was purposely designed by the plaintiffs to completely shut down TVAddons, despite the fact that only a tiny proportion of the add-ons available on the site were allegedly used to infringe copyright.

“I am of the view that [the order’s] true purpose was to destroy the livelihood of the Defendant, deny him the financial resources to finance a defense to the claim made against him, and to provide an opportunity for discovery of the Defendant in circumstances where none of the procedural safeguards of our civil justice system could be engaged,” Judge Bell wrote.

As noted, plaintiffs must also have a “strong prima facie case” to obtain an Anton Piller order but Judge Bell says he’s not convinced that one exists. Instead, he praised the “forthright manner” of Lackman, who successfully compared the ability of Kodi addons to find content in the same way as Google search can.

So why the big turn around?

Judge Bell said that while the prima facie case may have appeared strong before the judge who heard the matter ex parte (without Lackman being present to defend himself), the subsequent adversarial hearing undermined it, to the point that it no longer met the threshold.

As a result of these failings, Judge Bell declared the Anton Piller order unlawful. Things didn’t improve for the plaintiffs on the injunction front either.

The Judge said that he believes that Lackman has “an arguable case” that he is not violating the Copyright Act by merely providing addons and that TVAddons is his only source of income. So, if an injunction to close the site was granted, the litigation would effectively be over, since the plaintiffs already admitted that their aim was to neutralize the platform.

If the platform was neutralized, Lackman could no longer earn money from the site, which would harm his ability to mount a defense.

“In considering the balance of convenience, I also repeat that the plaintiffs admit that the vast majority of add-ons are non-infringing. Whether the remaining approximately 1% are infringing is very much up for debate. For these reasons, I find the balance of convenience favors the defendant, and no interlocutory injunction will be issued,” the Judge declared.

 

 

https://torrentfreak.com/tvaddons-returns-ugly-war-canadian-telcos-kodi-addons-170801/

 

It's really mind shattering that this sort of mob act can happen in Canada.