Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
CIPPIC Files Respondent Factum Voltage v Doe SCC Proceeding
Following CIPPIC’s successful application to be added as a party in Voltage v Doe#1, SCC No, 41026, CIPPIC has now filed its responding argument on the motion for leave.
Following CIPPIC’s successful application to be added as a party in Voltage v Doe#1, SCC No, 41026, CIPPIC has now filed its responding argument on the motion for leave.
The appeal arises in the context for a default judgement in respect of mass filing copyright litigation. In 2022, Voltage had sought judgement against 30 anonymous internet subscribers whom Voltage had alleged it had caught sharing one of its movies through BitTorrent and who had failed to file a Statement of Defense.
At the Federal Court, Justice Furlanetto refused to grant the motion, holding that Voltage had not made out its case. The Federal Court of Appeal denied Voltage’s appeal on two grounds: (1) that Justice Furlanetto had exercised proper discretionary as the trier of fact in refusing to draw an inference between the IP address and the infringing activity; and (2) that authorization requires evidence of control between the authorizer and primary infringer.
Voltage now seeks leave from the Supreme Court to appeal on two issues: (1) what is a copyright owner’s evidentiary burden in default judgement of anonymous online infringement; and (2) can a subscriber be liable for authorizing infringement with notice of the infringement?
CIPPIC’s argument comes down to three core positions on whether the issues are of sufficient public importance:
- The first issue asks the Court to interfere in the routine fact-finding exercise of a motions judge;
- The second issue invites the Court to reinterpret and over-write Parliament’s century-old intent in enacting the authorization right, and reverse the landmark unanimous decision in CCH v the Law Society of Upper Canada; and
- Regardless of the issues, it is inappropriate to ask the Supreme Court to consider of public importance matters arising from a default motion on an uncontested evidentiary record.
Read CIPPIC’s Responding Argument on Motion for Leave.
CIPPIC was supported by a team of impressive students. Jordan Geist and Hannah Goold worked with CIPPIC staff to draft the Memorandum, and Caroline Mercer and Naomi Brearly undertook additional research.
