The Canadian Bar Association
Intellectual Property

Lawsuit targets illegal downloaders

A lawsuit targeting individuals who illegally download copyrighted content in Canada is likely to cost more to litigate than is possible to recover in damages, says Toronto IP lawyer John Simpson.

Voltage Pictures is currently before Federal Court in Toronto, requesting customer information for more than 1,000 IP addresses in a case against Teksavvy, an Ontario-based Internet provider, the Financial Post reports.

The case is set to resume next month, the article says.

“I'm surprised by the timing of the Voltage v. Teksavvy suit; I'd thought this kind of litigation had gone extinct in Canada when Parliament capped damages for non-commercial copying at $5,000,” says Simpson.

“The economics don't make sense anymore since it would cost more than that to litigate each claim through to judgment, even when the costs are spread out over numerous claims.

“If the economics don't make sense, it's going to be very hard for plaintiffs to convince the courts that they have a bona fide intention to pursue each action all the way.”

Simpson says, “That's important because you need to show the court that you have a bona fide intention to do so before the court will help you find out who to sue by requiring Internet service providers (ISP) to disclose the identities of the individuals associated with the IP addresses being used to download, unless the ISP agrees to tell you.”

Another challenge that plaintiffs are likely to face, even if they do find out who they're suing, says Simpson, will be proving that the downloading is infringing.

“Not every unauthorized download infringes copyright,” he says.

“For instance, if the unauthorized downloading was for the purposes of criticism or review of a movie, or for the purposes of private study, that could fall under fair dealing. The technology being used by companies like Canipre, an anti-piracy enforcement firm that provides forensic services to copyright-holders in Canada, isn't sophisticated enough to prove how the copyrighted work is actually used - only that it has been downloaded.”

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