One Of The Best Decisions Ever Made In A Filesharing Case

I haven’t covered the Voltage Pictures vs. TekSavvy and its customers you illegally downloaded our movies lawsuit here, which I regret since it’s kind of an important one in the sense that its outcome will go a long way towards establishing the market or lack thereof in Canada for the type of copyright trolling we’ve seen in the United States and other parts of the world.

Recently, a ruling was handed down by the federal court, and Michael Geist, who is an absolute must read if you’re at all interested in Canadian media and it’s legal and privacy issues did a nice rundown of what it all means.

My biggest takeaway is that it’s one of those seemingly rare court decisions where everyone wins. Voltage can continue with its case and have access to the subscriber information it wants, but there are enough safeguards and limitations put in place that there’s no way to look at it as anything but a victory for consumer rights.

Having cited the dangers of copyright trolling (and noted the limited damages available in these cases), the court canvassed the caselaw in the U.S. and the U.K. and identified principles that go beyond prior Canadian caselaw. First, where there is compelling evidence of “improper motive” of a plaintiff, the court might consider denying the motion entirely. Second, if such evidence is unavailable, there are numerous safeguards that can be established.

In this case, the court ruled that there is some evidence that Voltage has been engaged in litigation which may have an improper purposes, but not enough to deny the motion altogether. Instead, the court ordered release of the subscriber names and addresses with the following safeguards:

  • the case will be managed by a Case Management Judge
  • TekSavvy will only disclose subscriber name and address information
  • Voltage will pay all reasonable legal costs incurred by TekSavvy before the release of any information
  • the demand letter to subscribers will include a copy of the court order and “clearly state in bold type that no court has yet made a determination that such subscriber has infringed or is liable in any way for payment of damages”
  • the contents of the demand letter will be approved by the parties (including CIPPIC) and the Case Management Judge
  • any further cases brought against subscribers will also be case managed
  • the information released by TekSavvy will remain confidential, will not be disclosed to other parties, and will not be used for other purposes. The information will not be disclosed to the general public or the media.

Much like our Olympic hockey teams, Canada’s justice system pulled out a huge win this week. Three cheers for a completely fair, sensible and rightheaded decision.

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