I am becoming increasingly concerned about how default judgments potentially may be viewed as precedents to establish sometimes sweeping and even sometimes wrong principles in IP cases. Sometimes, default judgments arise because the defendant(s) never participate, which can be for any number of reasons. Sometimes, the default can come towards the end of a case, again for various reasons. The common thread is that the presiding judge does not get to see and hear all of the evidence and all of the law in the ideal forum of the fully contested adversarial process – which is the cornerstone of our common law and the rule of law. I am working on a blog about some of the more high profile and sometimes problematic recent examples of the trend toward default judgments that can potentially take on precedential weight in IP cases, perhaps the most noteworthy of which is that of the Nintendo decision, about which I’ve written before.
There is a new default proceeding urgently looming in the Federal Court that could have profound and dire effects on the mass litigation trend in Canada whereby hundreds of BitTorrent users are sued at once amounting to thousands overall in the approximately two dozen cases to date from the Aird & Berlis LLP firm, many of whom have been eventually persuaded to settle at relatively low amounts but may have felt the need to retain counsel in the face of an apparent potential threat of $5,000. Aird & Berlis LLP is a big, old and reputable Bay Street firm. Mr. Ken Clark handles these cases and he does so courteously and efficiently and is open to hearing any relevant mitigating factors and to dealing directly with Counsel for individual defendants caught up these mass lawsuits.
In recent years, these enforcement activities arising from alleged BitTorrent activity have been conducted on a very civilized plain, with full credit to Mr. Clark. We have not seen the nauseating trolling antics that have too often happened in the USA that have resulted, for example, in at least two American copyright lawyers sentenced to jail for long periods of time.
However, things are now taking a troubling turn in the mass BitTorrent litigation arena in Canada. Mr. Clark is bringing a motion for default judgment against more than two dozen “Doe” defendants in Federal Court case #T-513-18. These Defendants are not yet publicly named – but they will be if the motion succeeds as framed. An affidavit has been filed that suggests that some of these defendants may have downloaded some pornography based upon some of the colourful film titles. This is extremely problematic from a relevance and privacy standpoint – and I won’t post the affidavit because it may be possible, if the “Does” are eventually named, to connect the porno dots with real names. Mr. Clark is seeking statutory minimum damages of $2,250 to $5,000 plus costs in each case. If he succeeds, enforcement is bound to follow.
Here's the recent letter to Court from Mr. Clark dated July 20, 2021 seeking to “set a hearing date for the special sitting before the Case Management Judge so that we can put that information in the motion record.” He says that “The Plaintiff shall file its written representations and confidential affidavits by no later than July 26, 2021”.
For any number of reasons, this motion could and arguably should be opposed and may be very vulnerable. However, it is not worth any one individual’s expense to do so and this is much too complicated for self-representation. The issues are potentially very complicated and Mr. Clark is a worthy and formidable adversary – so a lot of time would be required even for any very experienced counsel. There is always the risk of an adverse costs order. Last but not least, the listed “Does” may be out of time to even be allowed back, without a procedural fight, into the ring to defend.
Mr. Clark will no doubt be very thorough, forthright, and professional in his presentation to the Court. However, there are arguably a lot of issues and arguments in this proceeding that potentially could and should be considered and heard. Accordingly, this case calls out for a Court appointed “Assessor” under Rule 52 or an “Amicus Curiae”, or the intervention or the pro bono representation of one or more “Does” by a public interest clinic, e.g. CIPPIC, whose mandate and resources are ideal for this case. Otherwise, a very dangerous precedent could be set by default for masses of default judgments against potentially thousands of Canadians for several thousand dollars each and the disgorgement of irrelevant personal private information.
UPDATE Aug. 4, 2021:
Here are Mr. Clark's Written Representations for his Motion for Default Judgment) dated and filed July 26, 2021. There are many issues that could and should be addressed here. If CIPPIC does not step up to the plate, or the Court does not somehow on its own motion seek the assistance of an "Assessor" or "Amicus Curiae", it's hard to see how this will be done.
UPDATE: Aug. 9, 2021:
The mass default judgment motion has been set down for hearing on August 24, 2021.
UPDATE: August 11, 2021:
wrote to the Court on August 9, 2021 seeking an adjournment so that it can potentially intervene. That's good news for the public interest!