A recent decision of the Federal Court of Canada in a motion brought by Voltage Pictures
LLC in a copyright infringement case provides an interesting
insight into the way in which the Court will balance privacy
rights, on the one hand, and the rights of copyright holders on the
Voltage owns the copyright in a number of popular movies,
including The Hurt Locker. In this case, Voltage had a
complaint about the unauthorized copying and distribution of its
movies by about 2,000 subscribers of an Internet Service Provider
(ISP) known as TekSavvy Solutions Inc. Since Voltage knew that the
activity was going on but did not know the names and addresses of
the subscribers involved in it, Voltage brought a motion to the
Court for what is referred to as a Norwich Order. This is an order that requires
people who are not parties to a lawsuit to be made to either
provide information or attend for an examination for discovery.
This order was sought against TekSavvy, to force it to provide the
names and addresses of these 2,000 subscribers to Voltage so that
Voltage could sue them.
Essentially, the CIPPIC took the position that Voltage's
true intentions were not motivated by concerns about copyright
infringement. Rather, Voltage was interested mainly in intimidating
individuals into quick settlements by issuing demand letters and
threatening litigation. The CIPPIC argued that most individuals put
into that position would make payments whether they were involved
in unauthorized copying and distribution or not.
The CIPPIC also insisted that TekSavvy should not be required to
release any information because this would infringe on the privacy
rights of its subscribers and might affect the scope of protection
offered to anonymous on-line activity. Furthermore, this type of
order might serve as a precedent for the Court to order information
about whistle-blowers and other confidential sources of documents
made public in the public interest.
The case involved the need to strike the right balance between
competing interests. The Court had to determine whether or not this
was something more than a fishing expedition on the part of
Voltage, and particularly whether there was a real prospect of
these subscribers having been involved in an improper activity. As
the Court said, "privacy considerations should not be a shield
for wrongdoing" provided, of course, that the protection of
copyright is the sole motivating factor supporting the request for
In the result, the Court decided that Voltage's rights as a
copyright holder outweighed the privacy interests of the
subscribers, and the order was granted.
This case has very important ramifications for copyright owners
as well as those breaching the rights of copyright owners on the
internet by improperly downloading movies and other forms of
entertainment on the assumption that their identities will never be
disclosed. As this case demonstrates, such individuals cannot
assume that they will remain anonymous and immune from having to
account for their actions.
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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