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Voltage Holdings, LLC V Doe#1 et al, 2022 FC 827, saw the first time a plaintiff in a Canadian copyright filesharing action sought a motion for default judgment against dozens of defendants. Voltage is no stranger to copyright litigation. The American film production company has been the plaintiff in numerous copyright infringement lawsuits around the world. These cases concern unauthorized online sharing of Voltage’s films by unidentified defendants. Voltage often opts to sue internet subscribers who were suspected to have unauthorized copies of Voltage’s films shared through their home networks, even if the subscriber and the person who shared the unauthorized copies were not necessarily one and the same.

In this case as in others, Voltage had taken no steps to identify the alleged direct infringers. Instead, the defendants were internet subscribers that Voltage found using their IP addresses, through information provided to them by ISPs via a Norwich order. These defendants had not responded to Voltage’s previous communications regarding the alleged infringements and had filed no defense. Voltage sought to obtain statutory damages for infringement through a default judgment.

As the last few remaining NHL teams battle their way towards the Stanley Cup finals, the Federal Court has ordered Canadian ISPs to begin blocking NHL game streams accused of violating copyright Friday. While Canadian courts have previously recognized the availability of static website blocking (despite CIPPIC's objection), this order is the first of its kind in Canada, as we argued in our intervention. It implements a sophisticated system that relies on a private company to identify allegedly unauthorized streams using automated assessment tools and report these to Canadian ISPs for real-time blocking, and represents the next step and the never-ending expansion of remedies demanded by copyright holders in Canada.

The order adopts a number of safeguards. It will only operate during the remainder of the playoffs, where there are fewer games to monitor and less opportunities for over-blocking. The Court also ordered an independent expert to audit the website blocking initiative. The independent audit will provide critical evidence that will be critical when courts are later asked to extend this remedy. Specifically, if Rogers, Bell, and the other media companies who applied for this order wish to extend its application beyond the 2022 playoff season, the independent audit will need to establish that collateral blocking of legitimate content was minimal and that the blocking was effective in actually increasing legitimate subscriptions rather than simply driving customers to other forms of infringement or adoption of VPN services.

Image source: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

CIPPIC has submitted feedback to the Department of Canadian Heritage concerning the proposed legislation to address “harmful content” online. The public consultation was launched right before the federal election was called with a deadline to submit right after the end of the election, causing civil society and academic experts to request a delay  to the submission deadline. No deferral was ultimately granted.

In its submission, CIPPIC calls on the Department of Canadian Heritage to reconsider its approach to addressing activity that occurs online, given that the current approach jeopardizes claims that Canada is a global leader of human rights. The submission focuses on problems relating to the law’s scope of application, its demand that platforms block unlawful content within 24 hours of being flagged, as well as alarming requirements for online service providers to proactively monitor and filter content as well as report information on users to law enforcement.

The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

Highlights of that analysis include: