This is a case that became something of a lightning rod in the
storm of subscriber privacy rights vs. copyright. As we wrote in
our earlier post, a copyright owner can
only enforce its rights against online infringement if it knows the
identity of the infringer. It can seek a court order (called a
Norwich order) to disclose the identity of those alleged
infringers. Canadian law is clear that "A court order is
required in every case as a condition precedent to the release of
Such an order was used by Voltage Pictures to obtain the names
and addresses of some 2,000 subscribers of an ISP known TekSavvy
Solutions Inc. TekSavvy sought reimbursement of its costs for
complying with the order: TekSavvy claimed recovery of a total of
$346,480.68. Voltage offered to pay $884.00. The lower court
concluded that Voltage should pay $21,557.50 to cover
TekSavvy's legal costs, administrative costs, and disbursements
of abiding with the Order.
TekSavvy appealed that order.
In Voltage Pictures LLC v. John
Doe, 2015 FC 1364 (CanLII), the court awarded
TekSavvy an additional amount of $11,822.50. A win? Not really,
considering how much they claimed, and what it would have cost to
run the appeal.
The court also wagged a finger at TekSavvy. Since TekSavvy was
only obliged to deliver the subscriber info after payment
of its costs, the payment issue resulted in a significant delay in
the supply of the subscriber names. The court complained that
"...Voltage has not been able to obtain the information that
it was lawfully entitled to for more than two years after
Prothonotary Aalto's Order. The failure to provide this
information, on all accounts, appears to be due to TekSavvy's
unwarranted and excessive cost claims in the amount now of
It went on to note that "...the background circumstantial
results do not sit well with the Court. They confirm that
the policy in these types of motions should normally be to
facilitate the plaintiff's legitimate efforts to obtain the
information from ISPs on the prima facie illegal activities of its
subscribers. In my view, courts should be careful not to
allow the ISP's intervention to unduly interfere in the
copyright holder's efforts to pursue the subscribers, except
where a good case is made out to do so. While it may be a practice
to require prepayment of the ISP's costs of the motion, the
court must not let this issue delay unnecessarily the execution of
the order to the extent possible. Reasonable security for costs may
be preferable in some cases." [Emphasis added]
As with the earlier decision, this case serves as guidance to
copyright holders who are seeking the information of anonymous
infringers, and to ISPs who must balance the privacy rights of
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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