Creative Pleading Seeks to Certify Copyright Class Proceeding

Voltage Pictures LLC has been busy in the Federal Court of Canada. As illustrated by the proposed class proceeding filed April 26, 2016, the movie production company is showing no sign of slowing down.

Previously, Voltage commenced an action against unidentified “Doe” defendants alleging that the defendants’ file sharing through BitTorrent Protocol (BitTorrent) infringed Voltage’s copyright in the film The Hurt Locker. Voltage successfully persuaded Prothonotary Aalto to order the disclosure of Internet subscriber contact information, with certain Court imposed caveats (Voltage Picture LLC v. John Doe, 2014 FC 161).

In its most recent filing (T-662-16), Voltage seeks to certify a class proceeding against an unknown number of John Does, alleging that the Defendants have infringed Voltage’s copyright in five films (The Cobbler, Pay the Ghost, Good Kill, Fathers and Daughters, and American Heist). Similar to the Hurt Locker litigation, Voltage’s main allegation is that numerous unknown individuals have utilized BitTorrent for the purposes of offering to upload at least one of the five films, which, according to Voltage, infringes their exclusive right to communicate a work to the public by telecommunication.

Voltage does not know the identity of the proposed class defendants, but does have the allocated IP address that engaged in uploading the works at issue. Voltage is seeking to obtain the identity of the proposed class defendants by “tracing the customer of the [Internet service provider].”

A substantial hurdle for Voltage lays in the fact that an IP address only identifies the Internet subscriber and does not necessarily point to the individual who engaged in file sharing and the offering to upload of Voltage’s works. In an attempt to deal with this, Voltage has claimed (in the alternative) that the proposed class defendants have authorized others to offer the works for upload. In Voltage’s view, the proposed class defendants possessed sufficient control over the use of their Internet account and associated Internet devices such that they authorized, sanctioned, approved or countenanced the infringement.

Despite Voltage’s pleading regarding secondary infringement, one must query if, as jurisprudence requires, it can be so readily assumed that Internet subscribers are in a position of control regarding the manner in which their Internet accounts are used simply as a consequence of their relationship with the user of the equipment. For example, a subscriber’s child, spouse or guest may have been using the Internet subscription, or, if adequate security was not used, even a neighbour or “war driver.”

Moreover, it will be interesting to see how Voltage convinces the Federal Court that this case is appropriate to be certified as a class proceeding. The test for class certification is set out in subsection 334.16(1) of the Federal Courts Rules, which, among other factors, requires that the claims raise “common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members.” However, given the fact-specific nature of each unknown defendant (i.e. whether the Doe defendant is liable for primary or secondary infringement, and, if the latter, the Doe defendant’s relationship with any other alleged infringers), as well as any possible defences, one wonders if this matter is appropriate for class certification. Moreover, class members can opt-out of class proceedings, and as Michael Geist points out, can simply walk away from any certified class action.

Voltage is clearly taking creative steps to combat global online piracy. But, by alleging secondary infringement and seeking to certify a class action against numerous unknown defendants, Voltage’s Notice of Application may just be a little too creative for a judge to certify a class action.

Please Note: Thanks to Bram Abramson for quickly posting this on his Twitter.

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Author: Adam Jacobs

Adam Jacobs is a partner at Hayes eLaw LLP. His practice is focused on intellectual property, privacy, media and technology law.

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