Voltage Pictures LLC v. Does, 2014 FC 161,
marks a new chapter in the tenuous relationship between copyright,
technology and privacy. In what is a first for Canada, the Federal
Court of Canada has ordered TekSavvy, an Internet Service Provider
("ISP"), to release the names and addresses of
subscribers who were alleged to have illegally downloaded
Voltage is a film production company that owns the rights to a
number of movies, most notably "The Hurt
Locker". In support of its application, Voltage produced
evidence that identified the IP addresses of alleged unauthorized
downloaders. On that basis, Voltage argued that TekSavvy should
release the names of approximately 2000 individuals identified by
their IP address (the "subscribers") in order for Voltage
to bring actions against the subscribers for breach of
There were two issues the Court had to determine. First, should
the order be made? Second, if an order is made, how can the Court
minimize the invasion of privacy and ensure the applicant is using
the information for a proper purpose?
In order to compel a third party to disclose information, the
following elements must be considered:
The applicant must have a bona fide case;
The non-party (TekSavvy) must have information on an issue in
The order is the only reasonable means of obtaining the
Fairness requires the information be provided prior to trial;
Any order made will not cause undue delay, inconvenience or
The Court found that TekSavvy had the information in issue;
TekSavvy would not release it without a court order; it would be
unfair to have persons who infringe copyright do so with anonymity;
and TekSavvy will not be unduly burdened because it could be
reimbursed for its reasonable costs.
The difficult question was whether or not the claim was bona
fide. For this claim to be bona fide, Voltage had to genuinely
intend to bring an action for infringement against the downloaders,
and there could not be an improper purpose for seeking the
The Court held that, based on the evidence, Voltage did
have a bona fide claim; and therefore Voltage's rights
as a copyright holder outweighed the privacy interests of the
affected subscribers. However, questions remained about whether or
not Voltage would seek to enforce its rights in a bona fide
The Court was presented with examples from the U.S. and the U.K.
where copyright holders had attempted to extort settlements from
subscribers through underhanded tactics. These companies are called
"copyright trolls". Such trolls send demand letters to
subscribers that contain legal jargon, misleading language and
allege the subscribers have already been found guilty of
infringement. The goal is to scare or embarrass the subscribers
into paying a suggested settlement. There is often no basis for the
settlement amount claimed by trolls; it can range from hundreds to
thousands of dollars.
The Court determined that the best way to balance copyright and
privacy interests, while deterring such trolls, was to restrict the
scope of the order. Where there is evidence of an improper motive,
the order is to be more stringent. In this case, the Court imposed
a number of terms regarding how Voltage could contact
Only the names and addresses of the subscribers were to be
released and they were to remain confidential. The Court reserved
the right to review a draft of any letter that Voltage proposes to
send to the subscribers and to order that amendments be made, if
necessary. Any such letter must make it clear that no finding of
infringement has been made against the recipient. The letter must
stipulate that the person receiving the letter may not be the
person responsible for the infringement and the letter must give a
warning regarding the advisability of the recipient obtaining legal
advice. A copy of the Court order, or the decision, must also be
attached to each such letter. Finally, the Court retained authority
over the order to ensure it is not being abused.
Moving forward, the Voltage case is significant for
copyright holders, ISPs and subscribers. Copyright holders with the
appropriate evidence can now obtain an order directing that an ISP
release the names of subscribers alleged to have illegally
downloaded copyright protected works, such as movies. The Federal
Court has made it clear, however, that in crafting their orders the
Court will restrict and discourage troll-styled business practices
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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