The Lawyers Weekly has published an article I wrote about the Voltage Pictures litigation against peer-to-peer downloaders (Voltage Pictures LLC v. Jane Doe, T-1373-11). I have previously blogged about the litigation when the Federal Court required ISPs to provide identifying information of the defendants and about the evidence provided to the court.

[Updated: Here is a copy of the article is it originally appeared in the March 9, 2012, issue of The Lawyers Weekly published by LexisNexis Canada Inc.]

Movie studio puts a “Hurt” on downloaders

Some peer-to-peer movie downloaders may get an unpleasant surprise in the mail from Voltage Pictures LLC, which has brought an action in the Federal Court against various “Does” — unidentified users of peer-to-peer networks who downloaded unauthorized copies of its Oscar winning film The Hurt Locker.

Voltage Pictures obtained an order from the court requiring non-party Internet service providers, Bell Canada, Cogeco Cable Inc. and Videotron, to provide the contact information of unnamed  defendants that Voltage Pictures had identified as downloading the movie.

Peer-to-peer software, in this case BitTorrent protocol, is used by individuals to upload and download electronic files. An initial user shares, or seeds, a file onto the network. Other users seeking the file may download it from the initial user or can download all or part of it from others who have already downloaded the file. In this way, each user who downloads a file from the network is also uploading the file to others.

The challenge for copyright owners is identifying the users of the peer-to-peer network and showing to the satisfaction of a court that they violated the work’s copyright by reproducing it. Forensic software may be able to identify the IP address or number associated with a computer on the network but cannot typically identify the actual user. The IP address is a number associated with each computer connected to a network and is typically assigned by an Internet service provider (ISP). It may be impossible to identify an actual user of a peer-to-peer network, as a single IP address may be shared between several individuals.

Voltage Pictures brought a motion last summer to reveal the identities of the subscribers of the identified peer-to-peer network IP addresses by way of a non-party discovery order against the ISPs. Justice Michel Shore of the Federal Court granted Voltage Pictures’ order on the basis that the company was not able to identify the defendants in any way other than by the court order and had a legitimate claim against the defendants.

The court referred to the 2005 decision of the Federal Court of Appeal in BMG Canada v. Doe where a similar situation was considered related to downloading music but had come to the opposite result. In the BMG Canada proceeding, the ISPs had resisted providing the customer information, claiming it violated their subscribers’ privacy rights. Justice J. Edgar Sexton wrote that: “Although privacy concerns must also be considered, it seems to me that they must yield to public concerns for the protection of intellectual property rights in situations where infringement threatens to erode those rights.”

In BMG Canada, the copyright owner’s motion was ultimately dismissed as the evidence was not from the people who had conducted the forensic investigation and therefore determined to be inadmissible hearsay evidence. Such concerns were not raised in Voltage Pictures’ motion as it was unopposed and an affidavit of a forensic investigator who had conducted the inquiries to identify the IP addresses was submitted as evidence connecting the reproduction of the works to the identified IP addresses.

There are reports that a number of the Canadian Internet subscribers identified as a result of Voltage Pictures’ motion have now received letters from the company’s lawyers. According to the court file, Voltage Pictures had until March 2, to identify defendants and propose a schedule for further steps in the action.

Voltage Pictures has brought a similar action in the United States against approximately 25,000 peer-to-peer IP addresses but recently voluntarily dismissed many of those defendants likely because they settled or they could not be identified from the IP addresses. Some defendants have been identified and are now defending the copyright infringement allegations.

The role of ISPs is especially significant in these types of cases. The Supreme Court of Canada in the 2004 Tariff 22 decision identified ISPs as intermediaries who make telecommunications possible and it made clear that they were not liable for copyright infringement for merely supplying software and hardware to facilitate use of the Internet.

ISPs hold the keys connecting public activity on the Internet with the private activity of subscribers in the homes or businesses. In BMG Canada, the Federal Court of Appeal addressed the balance of privacy with copyright enforcement, limiting any disclosure to only information related to the copyright infringement. The court also considered the timeliness of the information as there is a risk that if there is a lengthy delay, the information as to identity of the subscribers may be inaccurate.

The next step in the Voltage Pictures proceeding was the identification of any defendants by the March 2 deadline and then the filing of defences to the allegations of copyright infringement by those defendants. Statutory damages for copyright infringement can run as high as $20,000 per work so many defendants may choose to settle and avoid the costs for litigation and a possible order against them.