I have earlier written
about the Voltage reverse class action in which
Rogers was able to persuade the Supreme Court of Canada to remit to the Federal
Court the question of its
reasonable costs of compliance with the Norwich
order to disclose
the names and addresses of alleged copyright infringers.
Another important chapter in the mass copyright litigation
saga has just been written. The Federal Court, on remand from the Supreme Court
of Canada based on its decision of September 14, 2018, has just provided the
apparent answer to how much Voltage Pictures and presumably others will have to
pay for the disclosure pursuant to a Norwich order of individual
names and addresses. In this particular case, Justice Boswell concluded in Voltage v. Salna
1047 after considering a great deal of evidence that Rogers is entitled to
compensation of $67.23 plus GST quote “for searching and disclosing the
customer name and address associated with the five timestamps in the Norwich
The fact that there were five timestamps involved in this
particular situation presumably resulted from the fact that the IP address
turned out to belong to a Mr. Robert Salma, who was a landlord whose IP address
was presumably allegedly used by others. This, of course, will not be the
normal situation. In the more normal situation, there will likely be a need for
only two timestamp lookups
Justice Boswell concluded that each timestamp lookup
entitled Rogers to reimbursement for 12 minutes of time at $35 an hour plus
HST. Since there will normally be two timestamp lookups for each defendant in
this mass litigation cases, that suggests reimbursement of 24÷60 X $35 which is
$14 plus HST. See para. 87 of the Order and Reasons.
There are apparently approximately 55,000 potential defendants
in this reverse class action, if it is allowed to proceed. More on that below. Accordingly,
it would appear that if Voltage wants the names and addresses of all of these
potential defendants the cost will be at least $14 times 55,000 or $770,000
plus HST, which comes to $870,100. It took some time and a failed attempt to
appeal to the Supreme Court of Canada, but Voltage finally paid the sum of
$75,000 into court in this reverse class action to keep it alive.
The certification motion is scheduled to be heard in Toronto
on September 23 and 24th
, 2019. Presumably, some very important
issues will be addressed at that time. These might include the very basic
question of whether a “reverse class action” can even proceed in the Federal Court
in a case like this and whether there is even a cause of action against those
whose only involvement is being the subscriber and paying the bill for Internet
service. The Supreme Court of Canada has specifically stated that this alone
does not give rise to liability. There are many other issues which will
hopefully be addressed. It remains to be seen whether there will be an active intervention
in the certification process.
As I wrote earlier about the SCC decision:
Here are perhaps the two most consequential paragraphs in
the judgment – which put a severe chill on all the legal basis of the
outstanding mass BitTorrent cases:
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.
 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. In this instance, these comments were arguably closely
related to the “ratio” and should now be regarded as binding authority.
Meanwhile, other chapters are being written in this saga and
there will be important developments in September.
about all that later.