Court OKs disclosure of customer info in Voltage case

Rogers Communications Inc. must disclose the personal information of a customer accused by Voltage Pictures LLC of violating its copyright, according to a court decision that experts said clarifies the notice-and-notice system isn’t a good vehicle for such disclosures. Federal court judge Keith Boswell said in a decision Thursday Rogers must disclose the name and address — but not the email or phone number — of the John Doe in the case. He also limited costs for the disclosure to about $100. University of Ottawa law professor Michael Geist said in an email that “the case clearly finds that the notice-and-notice system is not designed to facilitate disclosure of subscriber information.” That regime, which came into effect in January 2015, requires Internet Service Providers (ISPs) to notify customers about copyright infringement complaints brought to their attention by rights holders. Geist added: “Moreover, the decision to require payment for subscriber information is a key aspect of the decision given Voltage’s desire for access to the subscriber information at no cost.” Independent Internet lawyer Allen Mendelsohn said in a phone interview that Voltage had argued “that the notice-and-notice regime itself can be a basis for the ISPs disclosing subscriber information, and the judge rejected that argument.” Mendelsohn praised the judge’s decision, saying that “anyone who reads the notice-and-notice provisions would see that it says nothing” about a court making orders for such productions. In his decision, Boswell said Voltage’s “request for a disclosure order ‘in accordance with’” notice-and-notice is “misguided.” “Nowhere in these provisions is it explicitly stated that there can or must be an application or motion for a disclosure order in respect of the information required to be recorded and retained,” he wrote. “Moreover, nowhere in these provisions is it explicitly stated that a fee or compensation is prohibited or cannot be paid in complying with a disclosure order made in respect of that information.” He added that the regime “does not provide any detailed or comprehensive mechanism for copyright owners such as the Applicants to enforce their rights as against alleged infringers. At best, it provides a mechanism for copyright owners to send a notice of claimed infringement via an ISP to an alleged infringer with the knowledge that there will be records available at some later date to determine the identity of such infringer if necessary.” Instead, Voltage’s right to the disclosure of John Doe’s information is based on the same case law that existed before notice-and-notice and that provides the basis for such disclosures (known as a Norwich Order), he said. Boswell also sided with Rogers on the question of costs. Rogers had cited a figure of $100 per hour for the disclosure of the information, while Voltage had said it should be provided at no cost, or at most at 50 cents per subscriber. “The fee is what it is, and if the Applicants want information about the Subscriber they must pay the hourly fee,” Boswell said, noting that it shouldn’t take Rogers more than an hour to provide the information, putting the total cost at approximately $113. Mendelsohn said that amount could be high enough to provide a deterrent to Voltage. Given the low limits for copyright infringement under Canadian law — a maximum of $5,000 for non-commercial infringement — it generally hasn’t been cost-effective to go after infringers individually, he noted. If the costs are $100 per person in a class action, “I think the plaintiffs here are in trouble. You can just count the numbers, because of the statutory limitations.” Additionally, “we’ll have to see if the court will take that next step to order all of the John Does’ or Jane Does’ information… released,” Mendelsohn said. Geist also said in an email the “costs may create a disincentive to these kinds of actions.” Such reverse class action suits are rare in Canada, the Wire Report reported when the case was launched this spring. In his decision, Boswell ruled that Rogers must make the disclosure within 10 days. He also stipulated information that Voltage must include in its communications with the John Doe, including that applicants are currently seeking to make him the representative respondent in a class proceeding. Other information Voltage must include in bold type is that no court has determined John Doe has infringed copyright or is liable for damages, certified the class proceeding, or decided whether John Doe may be forced to serve as representative respondent to the class proceeding. The parties must agree to the terms of the correspondence and “provide the Court with a final, signature-ready copy of such correspondence for the Court’s approval prior to it being sent.” Aaron Lazarus, Rogers’ senior director of public affairs said in an email Thursday that “our customers’ privacy and security are important to us and that’s why our clear position is that we do not release personal information without being required to by law. While we are reviewing the decision we are pleased that it appears to help deter improper bulk requests." David Fewer, director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), which intervened in the case, said in an email that CIPPIC is “generally pleased with the outcome on those issues that the Court heard argument.” He added: “Unfortunately, the Court did not hear contested argument against the evidence or on the legal test that the applicants had to meet. The decision spends little time making those assessments.” Now that Voltage and its partners have the order, they are “in place to begin discovery against the Doe with the goal of having the Doe appointed as the representative and moving towards certification of its controversial reverse class proceeding,” Fewer said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Court OKs disclosure of customer info in Voltage case

News | July 28, 2016

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Court OKs disclosure of customer info in Voltage case

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