Piracy v. Privacy – the Federal Court Significantly Restores the Balance in Canadian Mass Copyright Litigation by Insisting on “Best Available Evidence”
From Excess Copyright:
Today’s ruling by the Federal Court of Canada in ME2 Productions, Inc. v. Doe, 2019 FC 214 is a reiteration and affirmation of the landmark ruling by Judge von Finckenstein in the first of these Canadian copyright “Doe” cases 14 years ago. That BMG decision, which was upheld by the Federal Court of Appeal, made it clear that the Court will require substantial, admissible, reliable affidavit evidence that can be cross-examined upon. Today’s ruling notes that “…the key evidence that is found in the Arheidt Declaration is hearsay which cannot be subject to cross-examination since it is simply an exhibit to the affidavits. This is exactly the type of evidence which was rejected in BMG, which remains good law.” In today’s ruling, Judge Pentney refers several times to the need for “the best available evidence.”
The Court in BMG was then and is now still rightly concerned that hearsay evidence creates the “risk that innocent persons might have their privacy invaded and be named as defendants where it is not warranted” and such evidence will not suffice if “no grounds are provided for accepting” it.
Link to the rest at Excess Copyright.
Following are excerpts from a brief filed in the case:
The lower level court had denied a motion brought by a number of corporations in the recording industry business. These plaintiffs had sought disclosure by certain ISPs of the identity of customers said to be guilty of copyright infringement by trading in music downloaded from the Internet. The plaintiffs could not identify these Internet users because they operated under pseudonyms related to software.
The plaintiffs said that each of these unidentified defendants had downloaded in excess of 1,000 songs onto home computers. It was said that the defendants utilized the KaZaA and iMesh file-sharing programs, which allowed them to share computer files with others connected to a peer-to-peer network. The defendants possessed software by which they could search the pool of shared files by title or artist and it was submitted that multiple transfers to other users could take place simultaneously from a user’s computer.
It was raised by all parties that Internet service provider (“ISP”) account-holders expect that their identities will be kept confidential.
. . . .
[U]nder PIPEDA, para. 7(3)(c), an ISP may disclose personal information if so required by court order.
. . . .
[In order to obtain such personal information, a plaintiff/applicant must show the following:]
- the applicant must establish a prima facie case against the unknown alleged wrongdoer;
- the person from whom discovery is sought must be more than an innocent bystander;
- that person must be the only practical source of information;
- that person must be reasonably compensated for expenses arising out of compliance with the discovery order; and
- the public interests in favour of disclosure must outweigh legitimate privacy concerns.
. . . .
The trial division judge denied the plaintiffs’ motion. In his reasons, Judge von Finckenstein stated that the plaintiffs had not made out a prima facie case.
. . . .
Neither the affidavits nor the cross-examination thereon provided clear evidence as to how the pseudonyms of the KaZaA or iMesh users were linked to the IP addresses identified by MediaSentry. While the affidavit indicated that the pseudonym (Geekboy@KaZaA) was identified as the IP address 188.8.131.52 and that, according to the American Registry for Internet Numbers’ public database, that address had been assigned to Shaw Communications (one of the ISPs from which disclosure is sought), no evidence explained how the pseudonym was linked to the IP address in the first place. Given these circumstances the court refused to order disclosure of the name of the account-holder of IP address 184.108.40.206 thereby exposing that person to litigation.
On the question of whether there was evidence that copyright had been infringed, the plaintiffs submit that the alleged infringers: installed the peer-to-peer application on their computers; copied files to “shared directories”; used ISP services to connect their computers to the Internet; ran the peer-to-peer application while on the Internet; and made files in the shared directories available for copying, transmission and distribution to any one of millions of users of the peer-to-peer service. It was argued that there was copyright infringement by this reproduction, authorization of reproduction and distribution of unauthorized copies of sound recordings. Further, there was the possession, for the purpose of distribution, of unauthorized copies which the infringers either knew or should have known were infringing.
The judge acknowledged that copyright law is a creature of statute and it does not assist the interpretive analysis to import tort concepts. Under s. 80(1) of the Copyright Act, R.S.C. 1985, c. C-42, the downloading of a song for a person’s private use does not amount to infringement. There was here no evidence that the alleged infringers either distributed or authorized the reproduction of sound recordings. Their action was to place personal copies into shared directories accessible by other computer users: the element of authorization is missing.
The judge stated that absent a positive act by the owner of the shared directory, such as sending copies or advertising the material’s availability for copying, there is no distribution.
. . . .
The Federal Court of Appeal in BMG Canada Inc. v. John Doe unanimously lifted the legal barriers, erected by the earlier decision of Justice von Finckenstein (the “Motion Judge”), to pursuing copyright infringement actions against on-line infringers of copyright works (“Internet Infringers”). There were four crucial elements to the Motion Judge’s decision. The Federal Court of Appeal dealt with these issues as follows:
- The Motion Judge made conclusions to the effect that Canada’s existing copyright law was insufficient to permit the recording industry to sue Internet Infringers for copyright infringement. The Federal Court of Appeal vacated these conclusions.
- The Motion Judge held that privacy rights enjoyed by Internet Infringers trumped the recording industry’s copyright interests. The Federal Court of Appeal reversed this finding.
- The threshold test applied by the Motion Judge before he would order an Internet service provider (“ISP”) to disclose the identity of an Internet Infringer was very high. The Federal Court of Appeal lowered the threshold.
- The Motions Judge found that certain key elements of the evidence on the motion before him were hearsay and therefore inadmissible. While the Federal Court of Appeal accepted that some of the evidence was hearsay, and thus dismissed the appeal, the court invited the recording industry to return to the court with improved evidence. Such an opportunity is rarely granted.
Link to the rest at Internet and E-Commerce Law in Canada
PG is not an expert on Canadian law. Since he hasn’t represented anyone in a litigation matter in a long time, he’s not completely up to date about US discovery practice either.
With those disclaimers, PG says Canadian law appears to be similar to US law in like matters.
In this case, a number of record companies were seeking to identify individuals who had posted a large number of songs on a pirate site from which those songs could be accessed by many more individuals who were interested in obtaining music without paying for it.
Those who were posting the songs used pseudonyms for understandable reasons.
The record companies wanted the Internet Service Providers granting internet connectivity to the individuals to use the IP addresses associated with pseudonyms on the pirate site to help the record companies track down the individuals who were deeply involved in music piracy of the companies’ intellectual property.
What’s an IP address?
An Internet Protocol address (IP address) is a numerical label assigned to each device connected to a computer network that uses the Internet Protocol for communication.
An IP address serves two principal functions. It identifies the host, or more specifically its network interface, and it provides the location of the host in the network, and thus the capability of establishing a path to that host. Its role has been characterized as follows: “A name indicates what we seek. An address indicates where it is. A route indicates how to get there.” The header of each IP packet contains the IP address of the sending host, and that of the destination host.
Link to the rest at Wikipedia
While it’s far from a perfect analogy, an IP address on the internet is a little like a street address on the ground.
If I know that someone known as Geekboy@KaZaA lives at 123 Main Street, Internet Village, Canada, I know where to look for Geekboy@KaZaA. There’s a chance that Geekboy is still there or somewhere in the vicinity.
If I learn from the ISP that Geekboy has an account that names Little Jimmy Jones at 123 Main Street, Toronto, Canada as the owner of the account.
If the IP address points to the same area as the ISP account says is where Little Jimmy lives, I have a pretty good idea who to serve legal papers of some sort upon. Without the IP address, if Little Jimmy says, “I would never do that. Maybe someone else hacked my account,” I can’t make the connection between Geekboy and Little Jimmy.
For privacy reasons having nothing to do with pirated music, internet users won’t want to use the internet if their ISP gives out information to anyone who asks for it. In the US, the local Democrats might want to know who is visiting Donald Trump websites so they can picket that person’s house. Encyclopedia Britannica may want to know who visited its website but didn’t register so it can send a sales representative to the house. Someone who has joined an online group that discusses erectile dysfunction problems might not want large drug companies, etc., etc., etc.