Second Time’s The Charm: Hellboy Obtains Norwich Order In Copyright Infringement Proceeding

In Hellboy Productions, Inc. v. Doe #1,¹ the Federal Court granted the second attempt by Hellboy Productions Inc. (the Plaintiff) at a motion for a Norwich order, requiring a non-party Internet Service Provider (ISP) to identify the owners of IP addresses used to share the Plaintiff’s film online. The decision is a helpful reminder of the evidentiary requirements on a motion for a Norwich order.

Background: The Plaintiff’s First Attempt

The underlying action is for infringement of copyright in the Plaintiff’s film, Hellboy: The Crooked Man (the Film). It names over 2,400 unknown defendants (the Doe Defendants), each identified by their internal protocol (IP) address. In 2025, the Plaintiff moved for Norwich orders against non-party ISPs, seeking to identify the owners of those IP addresses. The Motions Judge held that the Plaintiff failed to establish a bona fide claim of copyright infringement and to connect the ISPs to the Doe Defendants and therefore dismissed the motion.

The Plaintiff had relied on an affidavit, which contained screenshots of the Film crediting the Plaintiff as its “author and creator,” and the statutory presumptions in section 34.1 of the Copyright Act. Section 34.1 provides that, where a defendant puts into issue the subsistence or ownership of copyright in a work or other subject matter, copyright shall be presumed to subsist and to be owned, in the case of a work, by the author. In addition, the maker of a cinematographic work shall be presumed to be the person whose name appears as such in the work “in the usual manner” unless the contrary is proven.

The Motions Judge held that the presumptions do not apply on a motion for a Norwich order because a defendant has not yet put the subsistence or ownership of copyright into issue or had an opportunity to test the moving party’s evidence. Without the presumptions, the law clerk’s affidavit failed to prove subsistence or ownership of copyright in the Film. In addition, an affidavit of a forensic investigator failed to connect the respondent ISPs to the Doe Defendants. The Motions Judge dismissed the motion, without prejudice to any further motion the Plaintiff might bring with better evidence.

The Plaintiff’s Second Attempt

The Plaintiff brought a second motion, supported by supplementary affidavits from the law clerk and the forensic investigator. The Court ruled that the only issue before it was the sufficiency of that evidence. It did not allow the Plaintiff to re-argue the legal issues decided by the Motions Judge, which amounted to a collateral attack or disguised appeal of that decision.

Bona Fide Claim of Copyright Infringement

On the first element of the test for a Norwich order, the Court found that the supplementary evidence met the applicable threshold to establish a bona fide claim of copyright infringement. The revised law clerk’s affidavit resolved the deficiencies in the initial affidavit by, among other things, providing direct evidence of the matters addressed in the affidavit. The Court further noted that the Film’s credits “display the use of a copyright symbol and shows the Plaintiff’s claim to be the author, creator and owner of the Work for the purposes of copyright, which satisfies the Plaintiff’s purported and plausible standing to bring a claim for copyright infringement.”²

The Court also considered whether the supporting affidavit should have come directly from someone other than a law clerk. It noted that, in ME2 Productions, Inc v Doe,³ a law clerk’s affidavit was found to constitute inadmissible hearsay and improper opinion evidence because it merely appended, and repeated and relied on, a forensic report. However, the Court held that ME2 Productions does not necessarily preclude the use of a law clerk’s affidavit on a motion for a Norwich order.

In addition, the concerns raised in ME2 Productions were not engaged by the Plaintiff’s motion. The requirement that a moving party furnish the “best available evidence” on a motion for extraordinary relief must be understood in the context of the issue that the evidence is put forward to prove. In this case, the Plaintiff was not required to prove the subsistence or ownership of copyright in the Film or make out prima facie infringement. The Plaintiff had only to demonstrate, based on “some evidence,” that there is a legitimate or plausible basis for the proposed claim. The supplementary evidence on the second motion met that threshold.

The Revised Evidence Linked the ISPs to the Doe Defendants

The Second Element of the Norwich order test requires the Plaintiff to demonstrate that the non-party ISP is in some way involved in the matter in dispute and the only practical source of information available, and that it is fair to require the information to be provided to the Plaintiff.

On its first attempted motion, the Plaintiff failed this element of the test because its evidence did not link the IP addresses of the alleged wrongdoers to the non-party ISPs. On the second motion, the Plaintiff’s supplementary evidence remedied that deficiency. It confirmed that the IP addresses at issue are associated with the non-party ISPs and demonstrated that disclosure from an ISP is necessary to correlate an IP address to the identity of its customer.

The Interests of Justice Favour Disclosure

On the third element of the test, the Court held that the interests of justice favoured the disclosure of the information sought, based on a weighing of the Plaintiff’s legitimate interest in enforcing copyright in the Film and the legitimate privacy concerns of the persons sought to be identified. The Plaintiff requires disclosure of their identifying information by the ISP to seek recourse, and the Doe Defendants received fair warning of the possibility of their personal information being disclosed through the notices provided by the ISP. The Court also held that the order would not cause undue inconvenience or expense for the ISP because the information has already been assembled and retained, and the motion was not opposed.

Key Takeaways

The decision provides a helpful reminder of the evidentiary requirements on a motion for a Norwich order or other extraordinary relief. In addition, litigants should carefully consider whether the statutory presumptions set out in section 34.1 of the Copyright Act may be relied on in a proceeding, and even if so, whether the presumptions may be rebutted.

Footnotes

^{1 Hellboy Productions, Inc. v. Doe #1, 2026 FC 317.
2 Ibid, para. 33. The Court did not comment on whether a corporation may be an author of a work under the Copyright Act. For a recent decision commenting on that issue as it relates to the presumptions in section 34.1 of the Copyright Act, see the summary of ITP SA v. CNOOC Petroleum North America ULC, 2025 FC 684 in the Cassels 2025 Copyright Year in Review.
3 ME2 Productions, Inc. v. Doe, 2019 FC 214.}

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