William D King: The Legal Bit: Bit Torrent, Inc. v. Doe 1-5 – A Primer for Copyright Holders

The subject of an unprecedented series of mass-Bit Torrent lawsuits that shook the United States last year has burst back onto the scene this month—in Canada. The most recent case, which remains sealed at this time (the most recent filing is November 26), lists both Voltage Pictures LLC and its local affiliate, Voltage Games LLC, as plaintiffs.

This suggests that it will proceed along lines similar to those in the earlier Canadian cases: a film company suing for copyright infringement on one hand, together with gaming companies using their own intellectual property rights to demand compensation from Bit Torrent users who have downloaded infringing copies of games. It may be possible to join multiple companies as plaintiffs in a single action under Canadian civil procedure rules, but the optimal strategy of utilizing the courts of one country to sue in another for infringement has not yet been tested.

Assuming these new lawsuits are launched, that is precisely what Voltage Pictures and Voltage Games will seek to do.

  • A “John Doe” defendant (identified only by an IP address at the time of filing) is alleged to have downloaded a copy of The Hurt Locker using Bit Torrent; the film was later released on DVD and Blu-Ray by Entertainment One (eOne).
  • If they follow through, this likely won’t be the first time that Voltage has used Canada as a staging ground for its legal campaign. In December 2012, Voltage filed five separate lawsuits alleging copyright infringement against over 100 defendants in Federal Court; none of the cases has yet reached the discovery phase. Additional mass-lawsuits were filed in April of this year, but these have either not proceeded or are at the early stages of litigation.
  • As with its earlier efforts in the US, Voltage is seeking statutory damages for its lawsuits—the Copyright Act demands between C$500 and C$20,000 per infringement. Last week’s filing seeks disclosure of the alleged infringer’s name, email address and physical address; presumably this information has already been requested under the court’s authority via a Norwich order (which compels disclosure) to an Internet Service Provider (ISP). If it hasn’t, it can be expected shortly after any motion is served on the defendants (assuming there is more than one). Any potential follow-up action will depend on what Voltage receives.
  • Statutory damages are often criticized by judges; the Federal Court’s rules allow for costs to be awarded against plaintiffs who “unreasonably” pursue statutory damages. While that clause has yet to see repeated use, it is a reminder that Canadian courts have powers beyond those available in US courts when it comes to penalizing copyright holders. As seen in Voltage’s previous litigation efforts in the US, the company is not afraid of pursuing lawsuits over single counts of infringement—the possibility of a separate cost award could motivate a plaintiff away from this aggressive strategy across Canada as well.
  • A review of the Federal Court file numbers associated with these cases suggests that there may have been additional lawsuits filed since last year, so it’s possible that this won’t be the last time we hear from Voltage in Canada. However, if Canadian courts follow their US counterparts’ lead and begin to scrutinize mass-lawsuits for copyright infringement more closely, Voltage may see success rates drop from one country to another. For now, though, it appears that the company has different goals in mind says William D King.
  • In 2013, Voltage filed a claim against TekSavvy, an ISP that provides Internet access to its subscribers; according to Voltage’s complaint, TekSavvy provided subscriber information without first requiring a court order—a step required under Canadian law. The Federal Court agreed with Voltage’s interpretation of its obligations as an ISP but has yet to rule on whether or not the case will proceed as a full trial.
  • In the meantime, TekSavvy has been attempting to change the law by supporting a private member’s bill that would require courts to approve disclosure of subscriber information for civil claims. In other words, ISPs could not simply volunteer information without a court order—a clause that might have prevented Volume from suing 100 people based on an IP address alone in December 2012.
  • It appears unlikely that if TekSavvy succeeds in convincing Parliament to pass its bill, it will happen quickly enough to prevent Voltage’s next wave of lawsuits from going forward. However, it is possible that any future mass lawsuits may find themselves subject to additional scrutiny from judges aware that there are legal actions actively working towards reform.

Conclusion by William D King:

In conclusion, the article reads well as a general piece on copyright trolling lawsuits in Canada. In fact, it has been reprinted by several sites using boilerplate language to describe Voltage’s various anti-piracy activities. But what about the facts that were not mentioned?