snIP/ITs Insights on Canadian Technology and Intellectual Property Law

SCC To Weigh In On Fees For Identifying ISP Subscribers: Rogers v. Voltage

Posted in Copyright, Litigation
Keith Rose

One of the essential and recurring challenges of regulating unlawful conduct on the Internet—be it child pornography, harassment, fraud, data theft, content piracy, or otherwise—is identifying who is responsible.

Frequently, one can identify an IP address that is (or may be) a target of interest. IP addresses can be traced to responsible organizations, through publicly accessible registries.  However, to complete the chain back to a person generally requires the cooperation of the organization.

Commercial ISPs are in the business of providing IP addresses (and network connectivity) to their customers. So, inevitably, they find themselves on the receiving end of many requests to identify their subscribers.

ISPs in Canada have contractual, regulatory, and legal duties of confidentiality that restrict the disclosure of their customer information. However, these duties are not absolute.  Because this information can be necessary to uphold legal rights or to enforce obligations, courts can and do order ISPs to disclose this information.  In civil matters, this usually involves a Norwich order.

The case of Rogers v. Voltage deals with the issue of who is liable for the cost to comply with such an order. In particular, the case asks whether historical common law rules providing for reimbursement of third party costs have been displaced by the statutory “Notice and Notice” regime under the Copyright Act.

Voltage Pictures LLC is the production and distribution company behind, among other films, The Hurt Locker, Dallas Buyers Club and, more recently, Colossal.  It has been an active file-sharing litigant in Canada.  Most recently, it has launched a novel (and somewhat controversial) reverse class-action suit claiming relief for mass infringement of their copyrights.  In connection with this suit, Voltage requested an order forcing Rogers Communications to identify a single subscriber, who Voltage names as the proposed class defendant in the suit.

Voltage requested this order “in accordance with” sections 41.25 and 41.26 of the Copyright Act (the Notice and Notice regime).  Section 41.26(b) requires ISPs who receive statutory notices from copyright holders about alleged infringements to retain records sufficient to permit the identification of the subscribers, in the event of court proceedings.  However, nothing in these sections expressly addresses the disclosure of that information to the copyright owner, in connection with those proceedings.

Rogers took no position on whether Voltage was entitled to the order, but asked for compensation for its costs incurred to carry out the order, if it was granted. The Federal Court agreed. Voltage appealed, and the Federal Court of Appeal modified the order, removing the obligation to provide any payment to Rogers.

According to the Court of Appeal, because s. 41.26(2) of the Copyright Act states that no fee can be charged for retaining the information in the absence of a regulation (and no such regulation has been enacted), the only potentially compensable cost for Rogers was the incremental cost to transmit the information to Voltage.  The court concluded this was negligible.

Rogers sought, and has now received, leave to appeal this decision to the Supreme Court of Canada. The hearing has not yet been scheduled.

This decision will be of great interest to ISPs and to copyright holders seeking to enforce their rights against Canadian Internet users. It will also attract attention from consumer advocates concerned about the risk of “copyright trolling”, in which plaintiffs advance questionable (or entirely fictitious) legal claims in the hope of extracting settlement payments.  However, because the case is likely to turn on the interpretation of the Notice and Notice clauses of the Copyright Act, it will probably not have a significant impact on the many other circumstances in which interested parties want to identify ISP subscribers.