Voltage v. Doe, 2014 FC 161 (Copyright, Discovery & Online Anonymity)

Voltage v. Doe (Copyright, Discovery & Online Anonymity)

CIPPIC was granted leave to intervene in Voltage Pictures LLC v. Doe. Voltage has alleged that approximately 2000 unknown individuals have unlawfully downloaded movies and thereby infringed its copyright. Voltage subsequently filed a motion asking the Federal Court to order an Internet Service Provider, TekSavvy, to hand over the subscriber identities linked to the IP addresses associated with the downloading activity.

Background

Voltage Pictures LLC has alleged that approximately 2,000 unknown individuals, identified by IP address, have unlawfully downloaded movies and thereby infringed its copyright. Voltage subsequently filed a motion asking the court to order an Internet Service Provider (ISP), TekSavvy, to hand over the subscriber identities linked to those IP addresses. CIPPIC participated in that motion as an intervener.

CIPPIC intervened in order to argue for the protection of Canadians’ privacy, and to ensure that all procedural safeguards were respected. As part of its intervention CIPPIC challenged Voltage’s evidence, and questioned whether it is robust enough to justify handing over customers’ personal details. CIPPIC also introduced its own evidence, and made arguments about the proper legal tests to follow in file-sharing lawsuits.

Key Issues

Anonymity (Privacy and Freedom of Expression)

File-sharing activity can reveal sensitive details of a person’s private life. These can include, for example, political or sexual preferences and lifting this veil of anonymity without lawful justification can therefore be highly offensive and, if broadly employed, may chill legitimate avenues of inquiry. This does not, of course, mean that anonymous file-sharers should be insulated from accountability for their activities. It does, however, mean that safeguards should be in place to ensure that the discovery process does not unnecessarily intrude on the anonymity of online activity.

Revealing the identities of the ISP subscribers (who may or may not have a connection to the over 2,000 named Does) will implicate the subscribers privacy (online anonymity) and even their freedom of expression (right to read or view anonymously) by providing a “snapshot” into the Does’ movie viewing preferences. As noted by the Ontario Court of Appeal in R v. Ward, identifying a previously anonymous website visitor provides a “snapshot” into that individual’s private life.

Copyright Trolls

The disclosure of ISP subscriber information to a plaintiff via a Norwich order enables the plaintiff to issue demand letters to subscribers. In a number of cases in the United States and elsewhere, these demands have been issued with the objective of pressuring the ISP subscribers into agreeing to an expensive settlement rather than proceeding to trial. This business practice is what many would refer to as that of a “copyright troll”. The term “copyright troll” describes copyright holders who use the threat of litigation to generate revenue in excess of what they could expect in a damages award were the plaintiff to obtain judgement. It is a business model built on volume: make enough demands, and some people will pay. Copyright trolls litigate not to enforce rights in their intellectual property, but to leverage the costs (and fear) of defending a copyright infringement suit to obtain revenue.

For more information on Copyright Trolls, see CIPPIC's Copyright Troll FAQ.:

File-sharing

“Peer-to-peer” (P2P) file-sharing applications, such as BitTorrent, have made it easy for Internet users to share files with one another. Despite the popular perception that P2P applications are copyright infringers’ favourite tool, there are many legitimate uses of P2P file-sharing, such as updates and software. BitTorrent is particularly popular when large files must be transferred. It is used legitimately to help distribute content you have created (or have a license to), and want others to access. Sharing files via BitTorrent is a cost-effective bandwidth solution that enables an essentially random set of users to share the upload when people want to download it.

Should the court order the disclosure of the subscriber information, file-sharing might become demonized. This could entail difficulty and discouragement in disseminating works of the arts and intellect online.

Current Status

Voltage’s motion was heard before the Federal Court in Toronto on June 25th, 2013.

The Federal Court's decision, released February 20, 2014, offers aggrieved copyright owners a carefully calibrated tool for seeking redress for good faith claims of copyright infringement while at the same time slamming the door on copyright trolls. The Court has asserted that these sorts of proceedings will go forward as a "specially managed proceeding", subject to robust judicial oversight designed to ferret out abuses, protect privacy, and deter profiteering in the name of copyright infringement.

One safeguard the Court imposed was the requirement that Voltage pay all of TekSavvy's "all reasonable legal costs, administrative costs and disbursements". Voltage cannot obtain the IP addresses it seeks, or move forward with its venture, until it pays those costs. TekSavvy has brought it's motion for costs, and on December 8, 2014, the Federal Court heard that motion. TekSavvy has submitted a bill of costs in the amount of $346,480.68. Voltage opposes the amount as "outrageous".

Decision on TekSavvy's Costs Motion, 2015 FC 339

Voltage’s Norwich order includes a provision whereby Voltage is to pay TekSavvy “all reasonable legal costs, administrative costs and disbursements incurred by TekSavvy in abiding by this Order.” TekSavvy, a relatively small ISP, claimed a total recovery of $346,480.68, arguing that these costs were incurred as a result of the commitment of significant staff numbers to Voltage’s motion for information on approximately 2,000 customers. TekSavvy argued that as an innocent third party to the litigation it must be fully indemnified for all costs associated with the Norwich order. Voltage argued that TekSavvy was entitled to no more than $884.00 in legal fees, for the effect of the Order is prospective and covers only those costs incurred following the issuance of the Order. Voltage characterized TekSavvy’s recovery claim as grossly inflated, and if accepted, would have severe effects on future litigations of this nature.

The Federal Court Prothonotary who heard the motion ruled that TekSavvy’s interpretation of the Order was too expansive, while Voltage’s too narrow.

Nor did the Prothonotary agree with TekSavvy that it should be “placed in the position it would have been in but for Voltage’s motion.” The Prothonotary required Voltage to reimburse TekSavvy for costs incurred in locating and producing the required contact information of the subscribers identified by their IP addresses. This encompassed costs that were reasonably necessary to give effect to the Order. As a result, certain legal fees and costs associated with TekSavvy’s notices to affected clients were considered by the Court to be outside the scope of the Order.

In all, the Court expressed that TekSavvy had only proven a total of $21,557.50 in legal costs, administrative costs, and disbursements of abiding with the Order.

TekSavvy appealed the Order.

Decision on TekSavvy's Appeal of Costs Motion, 2015 FC 1364

Judgement on appeal, delivered December 9, 2015, increased that figure by an additional $11,822.50.

Costs Appeal Decision Reasons [to be posted when received]

Assuming the parties seek no further appeal, after paying these costs to TekSavvy (and assuming it chooses to do so), Voltage will be in a position to provide a draft of proposed communications to targeted subscribers and request the Court to convene a case conference with the Federal Court Case Management Review judge to approve the contents of the Subscriber letter.

Resources

Legal Documents Filed by Voltage

Adjournment Motions

CIPPIC seeks leave to Intervene