Illegal Downloaders Beware – You Can Run but You Can’t Hide Behind Your ISP: Balancing Privacy Rights against the Rights of Copyright Holders

By Scott Miller, February 24^th, 2014

The Federal Court of Canada in Voltage Pictures LLC v. John Doe and Jane Doe (2014 FC 161) has set the ground rules for when an Internet Service Provider (ISP) will be required to hand over to copyright holders the names and addresses of individuals suspected of unauthorized downloading of copyright material such as movies and music.

The court ordered the Ontario based ISP TekSavvy to disclose approximately 2000 customer names and addresses to the U.S. production company Voltage Pictures for the alleged unauthorized downloads of such movies as “The Hurt Locker” and “Dallas Buyers Club”.

In Canada, the Copyright Act provides for statutory damages for non-commercial infringement in the range between $100 and $5000. This range was likely implemented to discourage file sharing lawsuits against individuals. However, it is easy to imagine how with the names and addresses of individuals a simple letter to a suspected downloader of, for example, pornography might be embarrassed into paying a settlement without the copyright holder having to file a lawsuit.

To that end the court was extremely sensitive to both the potential rise of the so called ‘Copyright Trolls’ - plaintiffs who file multitude of lawsuits solely to extort quick settlements and the need to safeguard an individual’s right to privacy.

In order to overcome these issues but also balance the right of the copyright holder, the Federal Court instituted the following safeguards before requiring the ISP to deliver the subscriber names and addresses, including:

•         The moving party must demonstrate a bona fide case (a real intend to sue and there is no other improper purpose)
•         Disclosure will be only names and address and not phone numbers or email addresses
•         The information disclosed shall be used exclusively for the purpose of the lawsuit and will not be disclosed to the public/media
•         The letter to the ISP subscribers will include the court order and a statement that ‘no Court has yet found any recipient of the letter liable for infringement’
•          The case will be specially managed and a Case Management Judge will approve the demand letter before it is provided to the individuals
•         The copyright holder shall pay the legal costs of the ISP before the information is provided

The safeguards and limit on damages might still result in some copyright holders bringing lawsuits to deter the public at large from infringing copyright but the economics suggest this will not open the floodgates to litigation before the Federal Court. Likewise, the safeguards do balance the fear against Copyright Trolls and the potential loss of privacy rights.

For more information, please visit CTV National News website to watch Scott Miller’s commentary given during the CTV news coverage of the case.

 
Scott Miller, Partner

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