When a copyright owner suspects online infringement, but lacks
evidence of the identity of the alleged
infringers, it can seek an order to disclose those
details. Canadian law is clear that "A court order is
required in every case as a condition precedent to the release of
A Norwich order is a "litigation tool
requiring non-parties to a litigation to be subject to discovery or
being compelled to provide information." In a recent case, Voltage Pictures LLC v. John
Doe, 2014 FC 161, a decision released in
February, 2015, this tool was used by the Plaintiff (Voltage) to
obtain the names and addresses of some 2,000 subscribers of an ISP
known TekSavvy Solutions Inc.
Teksavvy said it would only disclose subscriber
information if Voltage obtained a court order compelling
disclosure. Voltage did obtain its so-called Norwich
order, and Teksavvy was compelled to release subscriber information
to Voltage, with some controls.
Then Voltage and Teksavvy argued about who should bear the costs
for correlating and compiling the subscriber info. The resulting
court opinion in Voltage Pictures LLC v. Teksavvy
Solutions Inc. 2015 FC 339, makes for interesting
reading (if you're into this sort of thing) regarding best
practices for copyright owners and ISPs to manage costs:
The copyright owner should first ascertain, in advance
"with clarity and precision", the method used by the ISP
to correlate IP addresses with subscriber information, and the
investment in time and costs based on a hypothetical number of IP
addresses. In other words, the copyright owner should ask the ISP:
"What methods do you use, how long would it take and how much
would it cost if we wanted you to correlate 100 or 1000 IP
Next, the copyright owner and ISP should agree on these
timelines and costs in advance (in writing if possible)
before the copyright owner files and serves its motion for
a Norwich order.
For smaller ISPs, the copyright owner should not make the
assumption that the smaller ISP will handle IP address and
subscriber info in the same way as larger ISPs, where such
processes are likely automated.
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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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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