This
photo of Ottawa is courtesy of TripAdvisor
As I reported earlier, regarding the Rogers
v. Salna “reverse class action” case against 55,000 or so unnamed
defendants and the issue of reasonable reimbursement to Rogers for providing
the names and street addresses of these potential defendants if the case gets
that far, Voltage filed a Notice
of Appeal on
August 16, 2019. As predicted, Rogers
has filed a Notice
of Cross-Appeal dated August 28,
2019.
It will be interesting
to see whether and how the outcome of this appeal
and cross-appeal from a trial level decision
that in turn resulted from a remand from the Supreme Court of Canada and which
could go on for still some time, will affect the proposed reverse class action
that began in 2016. The long delayed certification motion for the reverse class
is scheduled
for September 23rd and 24th , 2019.
The key documents for this motion have apparently not yet been filed.
There’s also an
important contested proceeding underway for a Norwich Disclosure order that is
being contested by Eastlink and Xplornet that will the subject of a case
management conference on September 19, 2019.
It will be interesting
to see how vigorously the ISPs fight to protect the privacy of their
subscribers. Presumably, none of them yet
have any idea that they have been named as a “Doe #” and could be on the hook
for up to $5,000 and will have to self-defend (perhaps with help from Pro Bono Ontario),
find a lawyer who is able and willing to help them on a cost effective basis,
or take the risk of ignoring the proceedings and being vulnerable to default
judgment.
Then there’s the appeal
and cross-appeal unfolding in the Teksavvy
case, which I wrote about some months ago.
All of this, not to
mention the ongoing 18 so other cases against thousands of “Doe” defendants
regarding various Voltage, etc. matters.
There are important issues
that cut across all these proceedings and which could have a potentially
profound effect on the public interest. The apparent lack of sufficient attention
to the public interest to date should be of serious concern to policy makers,
who have yet to implement regulations about reimbursement, and to the Courts,
which have never faced this kind of mass litigation on this scale and with this
sophistication before in Canada. I was very much involved in this first of
these cases, the BMG case, back in 2004-2005.
The rigorous test for disclosure set forth by the Federal Court of Appeal in that
case at the behest of Shaw, Telus & CIPPIC (which I then represented) has
not been followed or even invoked in all cases since then, although Teksavvy
now seems to be pursuing it in in earnest in the case noted above.
Copyright owners are
entitled to protect their rights and the recent fronts of litigation referred
to above have been conducted in Canada with commendable Canadian courtesy. This
has happened without the extreme
and even criminal excesses we have seen in some American “troll” litigation.
Some Canadian ISPs are standing up to be counted; however,
they have their own commercial interests to consider which are not necessarily going
to result in the protection of the interests of their customers. Overall, there is a serious systemic access
to justice problem here that somehow needs to be addressed.
As I’ve said before,
it’s useful to recall the clear words Justice Brown of the Supreme Court of
Canada in reimbursement decision, Rogers Communications Inc. v. Voltage Pictures,
LLC, [2018] 2 SCR 643, 2018 SCC 38. Here are perhaps the two most consequential
paragraphs in the judgment – which arguably put a potentially severe chill on
all the legal basis of the outstanding mass BitTorrent cases:
[35] I acknowledge that there will likely be
instances in which the person who receives notice of a claimed copyright
infringement will not in fact have illegally shared copyrighted content online.
This might occur, for example, where one IP address, while registered to the
person who receives notice of an infringement, is available for the use of a
number of individuals at any given time. Even in such
instances, however, accuracy is crucial. Where, for example, a parent or an
employer receives notice, he or she may know or be able to determine who was
using the IP address at the time of the alleged infringement and could take
steps to discourage or halt continued copyright infringement. Similarly, while
institutions or businesses offering Internet access to the public may not know
precisely who used their IP addresses to illegally share copyrighted works
online, they may be able, upon receiving notice, to take steps to secure its
internet account with its ISP against online copyright infringement in the
future.
[41] It must be borne in mind that being associated with
an IP address that is the subject of a notice under s. 41.26(1)(a) is not
conclusive of guilt. As I have explained, the person to
whom an IP address belonged at the time of an alleged infringement may not be
the same person who has shared copyrighted content online. It is also possible
that an error on the part of a copyright owner would result in the incorrect
identification of an IP address as having been the source of online copyright
infringement. Requiring an ISP to identify by name and physical address the
person to whom the pertinent IP address belonged would, therefore, not only
alter the balance which Parliament struck in legislating the notice and notice
regime, but do so to the detriment of the privacy interests of persons,
including innocent persons, receiving notice.
(highlight
and emphasis added)
Even if these comments
from the SCC go beyond the narrow “ratio
decidendi” (what is actually decided and what is generally rooted in the
facts) to the those that are “obiter
dicta”, the latter type of comments can still be authoritative if they are
closely related to “ratio decidendi”.
Those who are curious about the role of SCC “obiter dicta” may want to read the SCC’s own important 2005
decision regarding this issue. See R. v.
Henry, [2005] 3 SCR 609, 2005 SCC 76. In this
instance, these comments were arguably closely related to the “ratio” and should
now be regarded as binding authority.
This SCC ruling may
mean that a very large number of those who have been or may become caught up in
Canadian copyright mass litigation and who cannot be shown on the basis of reliable,
sufficient and admissible evidence to
have done anything more than to pay for internet service are not only not
liable for copyright infringement but arguably should never be drawn into the
process in the first place.
HPK
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