Disclosure cost to Rogers based on ‘irrelevant’ evidence: Voltage counsel

Counsel to Voltage Pictures LLC and a number of movie studios is asking the Federal Court of Appeal to review a case that found Rogers Communications Inc. is owed $67.23 to disclose the personal information of five IP addresses tied to alleged copyright infringement. The Federal Court earlier this month found that Rogers was entitled to $35 per hour to complete the disclosure requests ordered by the court, after the Supreme Court of Canada ruled in September that internet service providers are entitled to costs of accuracy and verification that go beyond what the law requires. But in coming to that conclusion, Voltage argued in an August 16 appeal that the lower court made several errors, including permitting evidence that was unrelated to the case involving the principal defendant Robert Salna, who is representing a class of 55,000 defendants in a yet-to-be-certified reverse class action lawsuit. “The evidence presented by Rogers was in respect of a randomly-selected group of IP addresses from an entirely different matter,” Voltage said in the appeal, thus running offside of the SCC-prescribed “limited evidence” allowed for use by the lower court. “This evidence itself was fundamentally deficient as Rogers’ witnesses admitted that these persons that they identified were not necessarily the persons identified by Rogers’ Notice and Notice System,” which requires ISPs to send copyright infringement warnings from rights holders to subscribers. The August 6 decision relied on evidence presented by a Rogers employee, who worked in the company’s lawful access response group. The affidavit claimed that Rogers’ costs were $71.10 per hour per employee, but that included overhead costs that the court nixed, thus paring the cost down to the actual labour involved in fulfilling the disclosure order. The movie studio’s counsel, Ken Clark of Aird and Berlis, also said the decision made a seemingly contradictory finding for how long it takes Rogers to obtain the information, both noting that it takes Rogers roughly 23 minutes per time stamp in one section of the decision but also 12 minutes per time stamp in another. The evidence was “irrelevant, entirely speculative and contrary to the direction of the Supreme Court,” said Voltage. Voltage’s final complaint is that the court allowed Rogers to use a system independent of the one that it used to forward the copyright notice to subscribers, including Salna, to come to that cost determination. “While Rogers may re-verify this information, as found by the Motion Judge, it still must use the information from its first and then verify it however Rogers likes,” Voltage said. “Without using the , however, Rogers is likely to be identifying individuals who were never sent Notices in the first place.”

Disclosure cost to Rogers based on ‘irrelevant’ evidence: Voltage counsel

Brief | August 22, 2019

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Disclosure cost to Rogers based on ‘irrelevant’ evidence: Voltage counsel

Brief | August 22, 2019

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