When 30-year-old web developer Adam Lackman heard loud knocking on his Montreal apartment door around 8 AM, he thought he was about to be robbed.
On that morning on June 12, 2017, Lackman looked through the peephole and saw men he didn’t recognize. They called out his name. He didn’t answer. “Scared for his life,” he called the police and, he said, hid in a closet holding a knife while he waited for the cops to arrive.
When the police showed up after about 20 minutes, according to Lackman, he opened the door and was met by lawyers, a bailiff, and, rather ominously, a locksmith. Seeing that he wasn’t about to be mugged, the police left.
One of the lawyers represented some of Canada’s most powerful telecommunications and media companies: Bell, Rogers, Vidéotron, and TVA. The other was there to be an independent observer on behalf of the court. Lackman was told that he was being sued for copyright infringement for operating TVAddons, a website that hosted user-created apps for streaming video over the internet. The crew was there with a civil court order allowing them to search the place.
The search was only supposed to go from 8 AM to 8 PM but it ended at midnight. The team copied laptops, hard drives, and any other devices they found, and demanded logins and passwords. Lackman, who called a lawyer in to represent him, was questioned for nine hours by the opposing counsel. They presented him with a list of names of people suspected of being digital pirates in Canada and asked him to snitch. He didn’t recognize the names, he told me, and said nothing.
“They ransacked the place,” Lackman recalled when I interviewed him in his new Montreal apartment (the move was unconnected to the litigation, he said). “This order just allowed them to go through everything; my underwear, my socks. At that point, I had no privacy.”
There were illegal streams in the mix on TVAddons, although it’s not clear how many. Out of the 1,500 or so apps on the site, the companies suing Lackman offered 12 to the court as examples of apps that they’d tested and found to be streaming copyrighted content. The 12 were part of a “featured” category of apps that Lackman says was auto-populated based on what was popular with users, but the companies suing him argue was curated.
“I agree that there are legal sources of content on the internet, but the evidence that was before the court and our client’s position is that that was not the purpose of TVAddons,” Guillaume Lavoie Ste-Marie, a lawyer representing the telecoms and media companies suing Lackman, told me over the phone.
Despite the strained relationship between TVAddons and the XBMC Foundation, Herrington said, “I feel his rights were not well taken care of, and if I was in his shoes I would be up in arms about it.”
How companies search people’s homes like the police
About a week before the search on Lackman’s apartment, Lavoie Ste-Marie and his colleagues convinced a judge in a closed hearing that TVAddons was a site dedicated to piracy, Lackman was responsible, and any possible arguments he might make in his own defense didn’t apply. Lackman wasn’t present to defend himself, nor was he notified of the hearing, according to court records reviewed by Motherboard.
In the hearing, they successfully argued that factors such as Lackman’s offshore company—which he claims owned domain names and had a bank account that was “never used”—and his use of a web service that hides a site’s hosting provider (Lackman says it was the immensely popular service Cloudflare), meant that there was a real risk that Lackman might destroy evidence if they didn’t conduct a surprise search.
The lawyers obtained an injunction that prevented Lackman from operating TVAddons and ordered him to hand over login credentials so that a court-authorized technician could shut down the site and social media accounts.
They also got an “Anton Piller” order, which allowed the lawyers—as well as a supervising agent of the court, bailiffs, and technical experts—to enter his home and search the place for devices, hard drives, and documents, and to preserve any evidence they found.
It’s as close as you’re going to get in civil law to criminal interrogation and seizure
Anton Piller orders are used when a court believes that evidence in a civil case may be destroyed if normal discovery procedure is followed. (They get their name from a 1975 case in the UK that concerned the theft of trade secrets.) They’re considered an extraordinary legal measure: subjects of the search do not get to defend themselves against the accusations beforehand.
Still, they are not criminal search warrants and Lackman did not have to let anybody into his home that morning. But it presented a legal catch-22: if he hadn’t, he would be in breach of a court order and could have been subjected to fines or imprisonment.
“In high school you learn that if someone doesn’t have a warrant, you don’t let them into your house,” Lackman told me. “I didn’t know there was this whole other law where big companies can spend money [on lawyers] and do whatever they want.”
Karim Renno, Lackman’s lawyer, said that an Anton Piller is basically a search and seizure. “It’s as close as you’re going to get in civil law to criminal interrogation and seizure,” Renno told me over the phone.
Lackman’s case isn’t the first time an Anton Piller order was used in Canada in a copyright case. In 2015 a slew of film studios sued the developers of popular Netflix-like torrent streaming service PopcornTime.io. Lavoie Ste-Marie and another lawyer representing the companies suing Lackman personally executed a search and injunction against one of the defendants and coordinated two others simultaneously executed across the country. Like TVAddons, PopcornTime.io was shut down and the site currently redirects to a Motion Picture Association of America web page.
Read More: Does Canada Even Have a Huge Piracy Problem?
Shortly after the search, a federal judge ruled the search unlawful in a procedural hearing. The questioning was an “interrogation,” the judge said, without the safeguards normally afforded to defendants, and presenting Lackman with a list of names to snitch on was “egregious.” The plaintiffs also did not make a strong enough case that TVAddons was solely intended to enable piracy, the judge decided.
“The Anton Piller order [in Lackman’s case] was problematic just because it was applied in such a heavy-handed way,” Israel told me.
The plaintiffs appealed this decision, and in February a panel of three judges—this time in the federal court of appeals—overturned the previous decision in its entirety. The search was lawful and conducted within legal parameters, the judges agreed. The list of names was only presented to Lackman to “expedite the questioning process,” and “despite a few objectionable questions” the nine-hour question period was not an interrogation, the panel ruled.
Most seriously, the judges decided that the plaintiffs had a strong enough case that TVAddons was designed to infringe copyright to justify the search.
“The [judge that sided with Lackman and the judges that overturned that decision] disagreed on how the TVAddons site was characterized,” Israel said. “There may be mistakes there and that’s a problem because that’s a very difficult thing to correct.”
Canadian telecoms are taking an aggressive anti-piracy stance
Lackman is now stuck in a confusing legal quagmire that has implications for anyone accused of enabling piracy in Canada.
Everything that’s happened to him so far has occured before a trial where he can argue the facts of how TVAddons operated, and yet the judge who approved the search order and the judge who upheld it on appeal have already effectively ruled that his website was designed to facilitate piracy.
In the appeal judgement, Lackman was ordered to pay the companies suing him more than $50,000 in legal fees. Lackman is hoping to work out a reasonable payment plan. He is already hundreds of thousands of dollars in debt to his own legal team and the debt is mounting, he said.
He’s started a new version of the site that he says only hosts addons that stream legal content. He makes several thousand dollars a month through advertising on the new site, but it hardly makes a dent in his ever-growing debt, he said, and so he’s turned to crowdfunding.
Lackman could still lose at trial, which may happen as soon as next year—if he makes it to trial at all. “I hope to make it to trial, but intentions are nothing without resources,” he told me. “I don’t want to be 40 years old declaring bankruptcy.”
According to Israel, this is the harsh reality of being a small player sued by telecoms and media companies in Canada, where the dominance of the “big three”—Rogers, Bell, and Telus, the latter of which isn’t involved in Lackman’s litigation—is often referred to as a telecom oligopoly.
The case highlights an imbalance of power, Israel said, “where individuals who experience harms don’t have the resources to advance them.”
Deep-pocketed companies, on the other hand, “not only have the resources to pursue [perceived harms] to the point where individuals don’t have the ability to defend themselves, but also to advance mechanisms with fewer safeguards,” Israel said.
One ray of hope for Lackman is that parallel copyright litigation in the US, brought against him and TVAddons by Dish Network, was recently settled on relatively amicable terms. TVAddons agreed to stop hosting addons that allowed users to stream a handful of specific channels, and will implement an expedited copyright takedown process for Dish Network. Any financial aspects to the settlement are confidential, according to Lackman and spokespeople for Dish.
Why can’t a similarly speedy resolution be found and sealed with a handshake in Canada? According to experts in copyright law, there’s a new and major push by industry players in Canada to aggressively quash piracy.
In January, the media arms of Bell, Rogers, and Quebecor formed FairPlay, a coalition of dozens of Canadian media entities lobbying the federal telecom regulator—the CRTC—to implement a system for blocking websites serving pirated content in Canada. At the time, the plan was described by digital rights groups as censorship and “authoritarian overkill,” and average Canadians submitted thousands of comments to the federal telecom regulator expressing discomfort with the idea.
That proposal was rejected by the CRTC on jurisdictional grounds earlier this month, and the regulator noted that pursuing website blocking with a change to the Copyright Act would be more appropriate.
It’s not clear what the status of FairPlay is now. The coalition’s website homepage is currently a placeholder, and spokespeople for the Asian Television Network—which filed the CRTC application on behalf of FairPlay—did not respond to Motherboard’s request for comment. Spokespeople for Bell also did not respond to Motherboard’s request for comment.
It’s possible that the coalition hasn’t totally disbanded, however. Rogers spokesperson Sarah Schmidt told Motherboard in an email that Rogers is still part of the FairPlay coalition.
Regardless, some FairPlay members are already pushing for website blocking—and more—to be enshrined in the Copyright Act, which is currently under review.
“Seeing those powers used in this context is a little concerning, and it’s not just TVAddons—it’s FairPlay and some of the suggestions that have been proposed in the copyright reform context,” Israel told me over the phone.
Bell, in a submission to the Copyright Act review, asked for courts to have the power to make orders that would force “a web host to take down an egregious piracy site, a search engine to delist it, a payment processor to stop collecting money for it, or a registrar to revoke its domain.” Rogers asked for the same in its submission, and gave the example of an internet service provider disabling access to content.
The companies are also asking to criminalize copyright-infringing video streaming—highly relevant to Lackman’s situation. A Bell executive said that the Royal Canadian Mounted Police (RCMP), Canada’s federal police force, should investigate and prioritize piracy investigations at a parliamentary hearing on the Copyright Act in September. The legal remedies offered to the telecoms until now have been “too slow and too cumbersome,” a Rogers executive said at the same hearing.
“I hope the judicial and legislative branches of government don’t fall for their trap,” Lackman told me in a text message regarding Bell and Rogers’ submissions.
If Lackman loses at trial, there’s much more at stake than the fate of one person. According to Geist, a loss could risk cooling off innovation in Canada by up-and-comers who may fear heavy-handed legal reprisal from the powerful incumbents that run the country’s communications infrastructure and in some cases the content that flows through it. Bell and Rogers both own numerous media properties, and Bell owns CraveTV, a Netflix-like streaming service.
Lavoie Ste-Marie disagreed. “As long as it’s not a copyright infringing platform I don’t think there’s any problems,” he told me over the phone. “The problem my clients have with TVAddons is that it’s a platform that has the sole purpose to infringe copyright. I don’t know what that has to do with innovation.”
Regardless of how you might characterize the content of TVAddons—infringing or non-infringing—Geist said, “the sledgehammer approach that was used raises concerns for anyone who pushes the envelope with innovative sites and technologies.”
The sunny living room of Lackman’s new Montreal apartment seemed worlds away from the 2017 search as described by him and his legal team. The only reminder of the case were two framed prints leaning up against a wall.
They’d been marked for auction by the court, he told me, in a since-abandoned plan to sell his stuff to help cover the more than $50,000 he’s been ordered to pay the companies suing him.
“I have to sit here and look at them every day and wonder what’s going to happen,” he said.
Even though the parties are now negotiating a payment plan, uncertainties abound—nobody knows what will happen to Lackman now, least of all him. As his lawyer Renno put it, the case is remarkably still in “very, very early stages.”
And that is the point: in the new Canadian anti-piracy regime led by powerful companies, just being accused of enabling piracy can come with immense personal consequences even before your day in court.
Disclaimer: VICE Media has entered into a licensing and programming partnership with Bell Media.
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