2017-08-10 00:02:58 UTC
For years, we've expressed general bewilderment at the practice in British
Commonwealth countries to effectively allow private search warrants, which
are given to non-government private parties, engaged in civil infringement
cases, to effectively break down other people's doors and dig through their
stuff. We've discussed such "Anton Piller" orders in Australia and the UK.
And, apparently they apply in Canada too.
And that leads us to the craziest damn story you'll ever read about a bunch
of private companies losing their freaking minds over something they
believe is infringing. In this case, it's the site TVAddons, which is a
site that links to various Kodi software add-ons. Kodi, if you're unaware,
is open source home theater software (it was originally the Xbox Media
Center, XBMC, but has expanded since then). It's quite popular and an easy
way to use a device with Kodi to turn your TV into a smart TV. There are
tons of perfectly legitimate and non-infringing uses for Kodi, and a
variety of sources of "Kodi boxes" that allow people to make use of the
features and to install a variety of useful apps -- such as adding YouTube
or Netflix to your TV. Admittedly, there are some add-ons that allow users
to access infringing content, though even those add-ons are just really
linking to content stored openly and available online.
Still, in the last few years, the entertainment industry has completely
lost its shit about Kodi boxes and the ability to use them to infringe. And
more than a few sites involved in the space have been targeted. Recently,
Dish Network sued TVAddons, a site that aggregates a bunch of Kodi add-ons.
However, around the same time, it appears that up in Canada, all the big TV
providers went absolutely insane. Bell Canada, TVA, Videotron and Rogers
all not only sued TVAddons, but got an Anton Piller order allowing those
companies (not police) to raid the home of the guy behind TVAddons, Adam
Lackman. For fairly obvious reasons, the process of getting an Anton Piller
order is one-sided. There is no adversarial process, because the other side
isn't alerted beforehand that someone's trying to get an order allowing
them to conduct a surprise raid to grab evidence.
The story of what happened next, first chronicled by Torrentfreak and the
CBC is absolutely astounding.
And while a court eventually realized that these companies massively abused
the Anton Piller process to effectively interrogate, intimidate, and hold
Lackman hostage without legal representation, it came way too late -- and
after they'd walked off with a bunch of his stuff, including his domains
and his social media and email accounts and passwords. The story is
shocking in its overreach. And, let's be clear here: the vast majority of
the content on TVAddons is perfectly legal. As the court eventually pointed
out, out of 1,500 add-ons, only 22 were found to be infringing. This was
not a den of piracy. So keep that in mind as you read what happened. From
On June 12, the order was executed and Lackman's premises were
searched for more than 16 hours. For nine hours he was interrogated
and effectively denied his right to remain silent since non-cooperation
with an Anton Piller order amounts to contempt of court. The Court's
stated aim of not intimidating Lackman failed.
The TVAddons operator informs TorrentFreak that he heard a
disturbance in the hallway outside and spotted several men hiding on
the other side of the door. Fearing for his life, Lackman called the
and when they arrived he opened the door. At this point, the police
told by those in attendance to leave, despite Lackman's protests.
Once inside, Lackman was told he had an hour to find a lawyer, but
couldn't use any electronic device to get one. Throughout the entire
Lackman says he was reminded by the plaintiffs' lawyer that he could be
held in contempt of court and jailed, even though he was always
"I had to sit there and not leave their sight. I was denied access to
medication," Lackman told TorrentFreak. "I had a doctor's appointment
I was forced to miss. I wasn't even allowed to call and cancel."
In papers later filed with the court by Lackman's team, the Anton
order was described as a "bombe atomique" since TVAddons had
been served with so much as a copyright takedown notice in advance
of this action.
I spoke with one of Lackman's lawyers, who told me that Lackman called
while this search was happening, only to have the plaintiff's lawyers
demand that he hang up and not talk to his lawyer. That's fucked up.
Remember, this is not law enforcement. This is not a criminal case. These
are private companies ransacking a guy's house and demanding he give up
everything and denying him access to his lawyer. They also demanded Lackman
give them information on a variety of other people -- and again threatened
him with contempt if he didn't comply.
The intent behind Anton Piller cases is to prevent the destruction of
evidence. In the US, we seem to deal with this in a more civilized manner
-- in which defendants in cases may be alerted to preserve evidence, and
failure to do so can lead to significant sanctions (and bad inferences) for
"spoliation of evidence." Canada might want to think about adopting
Eventually, the court realized what a mess this was, vacating the earlier
injunction and demanding that the companies return everything that they
took. The court realized (again, too late) that the TV companies were using
the Anton Piller order not for preservation of evidence, as is required,
but for outright interrogation and discovery.
I find the most egregious part of the questioning to be in the
solicitor's affidavit, wherein he deposes that counsel for the
'provided Defendant Lackman with some names' of other people who
might be operating similar websites. It appears the Defendant was
required to associate that list of 30 names with names, addresses and
other data about individuals that might have some knowledge or
relationship to those names. The list and the responses of the
are found on three complete pages in the exhibits of the
solicitor's affidavit. I conclude that those questions, posed by
counsel, were solely in furtherance of their investigation and
constituted a hunt for further evidence, as opposed to the preservation
of then existing evidence.
Oh, and also to destroy TVAddons before any actual legal process.
To the Plaintiffs, it mattered not that, by their own estimate,
just over 1% of the Add-ons developed by the Defendant were
allegedly used to infringe copyright. I therefore conclude that the
purpose of the Anton Pillar Order under review was only partly
designed to preserve evidence that might be destroyed or that
could disappear. 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,
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.
Well, no shit. Torrentfreak shows a transcript of the lawyer for the TV
companies just flat out admitting that the strategy was to "neutralize"
Justice: And on the next page, paragraph 5, so the experts would
deactivate the TV Add-ons domains and sub-domains, so you really
want to neutralize the Defendant's operations?
Lawyer for the Plaintiffs: Yeah, completely.
Lawyer for the Plaintiffs: Yeah.
Justice: So it's more than saying you're enjoined of not operating or
communicating, you really want to neutralize the guy.
Lawyer for the Plaintiffs: Yeah, completely, that's for sure. Yeah.
We use his passwords, we shut down everything, we change the
password and we change everything and it cannot be reactivated
by him or someone else. That's the goal.
And that's what happened... until the court reversed the order and demanded
they give everything back. But... in the meantime, how the hell is that
allowed? The raid happened back on June 12th, and Lackman couldn't even
talk about it until last week.
Incredibly, after getting slammed by this judge on June 29th, the TV
companies appealed and asked to be able to keep all the access to Lackman's
stuff. And that's where things are right now. The TV companies get to keep
everything and Lackman has nothing... at least until there's a ruling on
the appeal, and there won't even be a hearing on that for a few months.
Lackman has set up a crowdfunding campaign in the meantime.
This entire story is shocking, but fits within a rather unfortunate theme
that we see all too frequently around copyright. Legacy companies assume
the absolute worst -- and assume that because there's some infringement
somewhere everything must be wiped out and that it's blindingly obvious
that they should be allowed to go in and basically destroy everything. It's
the same sort of attitude that happened with the ridiculous "raid" on Kim
Dotcom's mansion five years ago -- where Hollywood folks had spent so many
years hyping up how Dotcom was a Hollywood-style evil villain that,
clearly, they needed to bring in the FBI and special forces to raid his
house with heavy weaponry and grab everything.
Over and over again, they seem to think that a little copyright
infringement happening somewhere means they should now be free to destroy
everything. It's quite incredible.