a2.r2ar2o14 15:34 41s--sr3--2154 c.s.s. PAGE was Federal Court Cour f?d?rale Date: 20140220 Docket: T-2058-12 Citation: 2014 FC 161 Toronto, Ontario, February 20, 2014 PRESENT: Kevin R. Aalto, Esquire, Prothonotary BETWEEN: VOLTAGE PICTURES LLC Plaintiff and 7 JOHN nos AND JANE DOE Defendants REASONS FOR ORDER AND ORDER . . the rise of so-called 'copyright trolls' plainfifls who file multitudes of lawsuits solely to extort quick settlements -- requires courts to ensure that the litigation process and their scarce resources are not being abused." INTRODUCTION Do persons who download copyrighted material from the internet using a peer to peer (P2P) network and the BitTorrent Protocol (Bifforrent) through the auspices of an Internet Service Provider (ISP) have a right to privacy such that their contact information not be revealed to the party whose copyright is being infringed? Ifthey are infringing copyright what remedy, if any, should the e2r2a/2o14 15:34 415-973-2154 pang a3/5a Page: 2 Court impose? These are the questions at issue on.this motion. While at first blush the answer may seem sirriple enough, in reality given the issues in play the answers require a delicate balancing of privacy rights versus the rights of copyright holders. This is especially so in the context of modern day technology and users of the internet. In essence, in this proceeding the Plaintiff (Voltage) seeks the names and addresses of some 2,000 subscribers (Subscribers) of an ISP known Teksavvy Solutions Inc. This type of order is often referred to as a orwichi' Order -- a litigation tool requiring non-parties to a litigation to be subject to discovery or being compelled to provide information. Voltage seeks the names and addresses so that they can pursue litigation against the Subscribers for the unauthorized copying and distribution of Vo1tage's copyrighted cinematographic works (Works). The case engages provisions of the Copyrighr Act, RSC, 1985, C-42 and the Personal Infonnation Protection and~ElecIrom'c Documents Act, SC 2000, c. 5 (PIPEDA). Pursuant to an order of this Court, the Samuelson--G1ushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) was granted leave to intervene on this motion in order to enhance the record and provide arguments and evidence to assist the Court in detemaining the issue and to put the position of the Subscribers and Voltage in an appropriate context. To that end, CIPPIC filed evidence by way of affidavit and cross--examined the main deponent who gave evidence on behalf I Judge Ronald Guzman, TCYK, LLC v. Does - 88, "2013 U.S. Dist LEXIS 88402, (US. District Court for the Northem District of Illinois) p. 3. 2 Norwich Phormacal Co. v. Customs Excise Commissioners, [1974] AC 133. This type of order first came to light in this case. These types of orders are now part of the Canadian litigation landscape and require innocent third parties to disclose information in their possession regarding unlawful conduct. A discussion of these orders is found later in these reasons. o2x2ax2e14 15:34 415-973-2154 c.a.s. g4,x_5g, Page: 3 of Voltage. also filed extensive written representations. Teksavvy, the ISP took no position on the motion. CIPPIC has raised a number of objections to Voltage's motion. It argues that privacy considerations and broader interests of justice should prevail in the particular circumstances of this (22158. Specifically, CIPPIC alleges that Voltage's true intentions are not motivated by any rights it . may hold under the Copyright Act, RSC 1985, C-42. CIPPIC characterizes Voltage and Canipre Inc. (Canipre) the forensic investigation company retained by Voltage to track the names of the Subscribers as "copyright trolls" engaged in "speculative invoicing" which seeks to intimidate individuals into easy settlements by way of demand letters and threats of litigation. It is alleged that the cost and the uncertainty or stigrna of litigation coerces most individuals into making payments, whether or not they were involved in the unauthorized copying and distribution of films on the internet. The Court is cautioned not to become aninadvertent tool assisting parties in this type of business model. FACTS Extensive aifidavit evidence was filed on the motion as well as extensive case briefs. Voltage filed the afficlavit of Barry Logan (Logan Affidavit) the owner and principal forensic consultant of Canipre. Voltage also filed two affidavits oflohn Philpott (Philpott Affidavits), an associate with the law firm representing Voltage which attached the affidavit of Michael of Voltage and the affidavit of Mathias Gartner, an information technology expert. CIPPIC also o2x2ax2a14 15: 34 415-973-2154 c.a.s. 35/53 Page: 4 filed evidence in the form of an aflidavit of Timothy Lethbridge (Lethbridge Afiidavit) which also dealt with technical issues relating to the internet. CIPPIC also filed the affidavit. of Alexander Cooke (Cooke Affidavit), a law student who conducted searches to locate file-sharing lawsuits commenced by Voltage. Voltage sought to strike the Lethbridge Affidavit on the grounds that the witness had no direct knowledge of the matters in issue and was not an expert on the areas on which he opined. Voltage pointed to sections of the eross--examination to demonstrate that Mr. Lethbridge lacked expertise on issues relating tothe case and the use of BitTorrent. However, in the end result, the Lethbridge Affidavit should be accepted subject to the qualifications advanced by Voltage. Voltage is a film production company which among other films produced the Oscar nominated film The Hurt Locker. The second of the Philpott Aflidavits provides evidence both directly and indirectly through the Michael Wick.-strom afiidavit that Voltage in fact owns copyright in the Works. [10] In 2012 Voltage retained Canipre to investigate whether any of Vo1tage's cinematographic works (Works) were being copied and distributed in Canada over P2P networks using BitTorrent. [1 1] Apparently, BitTorrent is a P2P file sharing protocol that facilitates the distribution of large amounts of data over the intemet. The non-party Teksawy is an ISP based in Canada which provides its customers with access to the internet. a2x2ar2o14 15: 34 415-973-2154 c.a.s. Egg,/53 Page: 5 [12] There appears to be little dispute about how the technology works. When a file is uploaded to a BitTorrent network that is referred to as Other P2P network users, called "peers", can then connect to the user seeding the file. BitTorrent. breaks a file into numerous small data packets, each of which is identifiable by a unique hash number created using a hash algorithm. Once the file is broken into packets other peers are able to download different sections of the same file fiom different users. Each new peer is directed to the most readily available packet they wish to download. Peers copy files from multiple users who may have the file available on the BitTorrent network. The peer then becomes a seeder as the data packet is distributed to other peers connected to the BitTorrent network. Once a packet is downloaded it is then available to other users who are also connected to the BitTorrent network. [13] Voltage retained the services of Canipre to conduct a forensic investigation of the Works that had been downloaded from BitTorrent networks. The software used by Canipre was able to identify the IP address of each seeder and peer who offered any of the Works for transfer or distribution. This software was able to identify the IP address of the user; the date and time the file was distributed; the P2P network used; and, the file's metadata including the name of the file and its size (collectively the File Data). [14] The File Data was reviewed and transactions were isolated geographically to Ontario and to Teksavvy customers. forensic investigation has resulted in some 2000 Subscribers being identified by their unique IP address assigned to them by Teksavvy. a2/2e/22314 15:34 41e--sr3-2154 c.a.s. meg Page: 6 [1 CIPPIC, in its evidence, qualifies the extent to which useful information can necessarily be obtained from the ISP. That is, IP addresses do not necessarily result in obtaining the person who may have engaged in downloading the Works. For example, on an open nompassword protected WiFi network, any stranger could use a BitTorrent client to download connect. This frequently happens at internet cafes and the like. Thus, the particular infringer may not be able to be identified. [16] Voltage has had a history in the U.S. of commencing filevshating lawsuits such as this. According to the Cooke Affidavit there are 22 file--shari11g lawsuits in the American Federal Court system where Voltage is listed as a Plaintiff. The majority involve unlcnown alleged infiingers- The total number of unknown alleged infringers is in the range of 28,000. POSITIONS OF THE PARTIES TO THE MOTION [17] As there is no "real" Defendant in this proceeding other than the named John Doe and Jane Doe, there was no party which could oppose this motion. Thus, CIPPIC sought intervener status which was granted which argued against making the order requested by Voltage. Position of Voltage [18] Vo1tage's position on this motion is relatively straightforward. That is, the identified Subscribers have infringed the copyright of Voltage by downloading or distributing the Works and are therefore prtmafacfe liable under the Copyrighulct for infringement. Thus, TekSavvy should be ordered to produce the contact information for the Subscribers who are all potential Defendants to this action. a2r2oz2a14 15:34 415-973-2154 c.a.3. Poeg Page: 7 [19] Relying primarily upon BMG Canada Inc. Doe, 2005 FCA 193 (BMG) (discussed in greater detail below) Voltage argues that it has met all of the principles enunciated in BMG and TekSaWy should be ordered to release the information on the Subscribers. It is_.to be noted as well that the position of Voltage was that it fully intends to pursue claims against the Subscribers. Position of CIPPIC [20] The position of CIPPIC is that no information should be released by TekSawy, as this will infringe the rights of privacy rights of the Subscribers and may affect the scope of protection offered to anonymous online activity. [21] They argue that there are important public policy issues involving the intersection of law and technology which require careful consideration and balancing by the Court before ordering third parties to reveal private information. They argue that this type of request of the Court may extend beyond mere infringers to require information about whistle-blowers and confidential sources of documents leaked in the public interest. [22] To that end, CIPPIC argues that the right to privacy is implicitly a protected right under sections 7 and 8 of the Charter and Freedoms. Thus, it is argued, the Court should not readily compel innocent third parties to divulge information which breaches the privacy expectations of individuals and which, in a rapidly changing technological environment, may not provide the real information relating to the unlawful conduct. B2x"2El/2814 15:34 415-973"2154 paeg ggfga Page: 8 [23] CIPPIC points to the jurisprudence evolving in other jurisdictions, particularly the U.S. and United Kingdom, to argue that Canadian Courts should not be quick to issue this kind of order without first considering the real objective of the party seeking the information. [24] CIPPIC argues that this type of litigation is, in fact, merely a business model to coerce payments from individuals who do not wish to incur the cost of defending a lawsuit and would rather pay something to an entity such as Voltage than pay lawyers. This type of business approach 'has been the subject of discussion in those other jurisdictions (discussed in greater detail below). Therefore, the Court should not be an unwitting tool of "copyright trolls". [25] However, it must be noted that on this motion, that whether Voltage is or is not a "copyright troll" in pursuing irlfonnation from Tel