Voltage Pictures LLC v. John Doe and Jane Doe

On Nov. 14, 2012, following a forensic investigation that identified IP addresses associated with unauthorized copying and distribution of its copyrighted materials through the BitTorrent Protocol on peer-to-peer networks, Voltage Pictures LLC started an action in Federal Court. As Voltage could not know the identities of the alleged copyright infringers, the defendants were named as John Does. Voltage sought a Norwich Order to identify the individuals associated with the impugned IP addresses. The motion sought to compel an Internet Service Provider, TekSavvy, to provide the contact information of these individuals so they could be named to the action. Originally scheduled for Dec. 17, 2012, the motion was adjourned to Jan. 18, 2013 and again to an unspecified date to allow the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC)'s motion to seek leave to intervene, filed Jan. 17, 2013, to be heard. CIPPIC was granted leave to intervene on Feb. 13, 2013, and Voltage's motion was ultimately heard on June 25, 2013 before Prothonotary Kevin Aalto of the Federal Court in Toronto.

Adhering to the legal test set by the Federal Court of Appeal in BMG v. John Doe, Voltage asserted that it had demonstrated that it had a bona fide copyright infringement action, that TekSavvy had information that could only be obtained from them and was needed to proceed in the case, and that it was fair that it be disclosed, and that they had therefore met the test under existing case law for disclosure of the information. CIPPIC opposed the granting of the disclosure order, arguing that the bona fide test should be elevated to a prima facie standard and that there was evidence that Voltage was not acting in a bona fide manner. As evidence, CIPPIC demonstrated that Voltage had filed other lawsuits in the United States and asked the Court to infer that Voltage was involved in "speculative invoicing," an allegation Voltage denied. TekSavvy did not formally oppose the request for the order, but it made submissions on the importance of notice to affected parties and on the form of the order to be granted, including limitations on use of the information and correspondence to its customers.

After reserving judgment for almost eight months, the Court on Feb. 20, 2014 issued its decision, Voltage Pictures LLC v. John Doe and Jane Doe, 2014 FC 161. Overall, the Court was focused on appropriately balancing the rights of copyright holders and the rights to privacy. The Court held that the bona fide standard remained the appropriate law and should not be elevated to a prima facie standard, and that Voltage met that standard through starting an action and the forensic investigation evidence. The Court also found that the enforcement of Voltage's rights as a copyright owner outweighs the privacy interests of affected internet users, provided that those privacy interests are invaded as minimally as possible. However, to allay concerns regarding privacy rights and the number of potential lawsuits, the Court appointed a case management judge to supervise the process moving forward, including all correspondence with the named individuals.

No party has appealed the decision. At the time of writing, a case management judge had just recently been appointed.

The plaintiff, Voltage Pictures LLC, was represented by Brauti Thorning Zibarras LLP in Toronto, with a team including James Zibarras and John Philpott.

The defendants, John Doe and Jane Doe, did not have counsel.

The respondent, TekSavvy Solutions Inc., was represented by Stikeman Elliott LLP with a team including Nicholas McHaffie and David Elder in Ottawa; and Christian Tacit, Barrister and Solicitor, also in Ottawa.

The intervener, CIPPIC, was represented by David Fewer, Director of CIPPIC, in Ottawa.