BitTorrent File Sharing And Copyright Infringement: What Evidence Is Needed

• Published date: 06 November 2023
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Trials & Appeals & Compensation
• Law Firm: Bereskin & Parr LLP
• Author: Mr Adam Bobker

BitTorrent is a peer-to-peer file sharing computer communication protocol, and one of the most used protocols for transferring large files, such as movies, over the Internet. It is well suited for transferring large files, due to its capability to first upload and then download bits of large files from a group of large file hosts, instead of from a single host server.

In Voltage Holdings, LLC v Doe #1,¹ the Federal Court of Appeal clarified what is required, in evidence, to prove copyright infringement in the context of file sharing. This decision affects the rights of Internet account holders who are named in lawsuits because other people have been using their account to download movies using BitTorrent file sharing software.

Voltage Holdings, LLC is a movie production company and the owner of the copyright to the film Revolt (the Work). Voltage detected that Internet users at certain IP addresses were making the Work available using BitTorrent software.

Unauthorized downloading of copyright protected movies using file sharing software is an infringing activity. It has the effect of making the movies available to other members of the public by telecommunication. In this way, file sharing engages the exclusive rights of a copyright owner under s 3(1)(f) and s 2.4(1.1) of the Copyright Act.²

At issue in the Federal Court of Appeal was whether the trial judge should have granted default judgment for copyright infringement against Internet account holders. There was evidence that the accounts had been used to download a copyright protected movie using file sharing software. But, Voltage, the copyright owner, had no direct evidence that the account holders were the ones that downloaded the movie. On the motion for default judgment, Voltage had argued that an adverse inference should be drawn against the defendant account holders. They had been sent multiple notices of infringement before being sued. The defendants had not defended the case, despite receiving the claim and a reminder. Therefore, Voltage argued, no further evidence was required to obtain default judgment for copyright infringement against them. Voltage asked the trial judge to find that the defendants had either downloaded the movie themselves or that they had authorized the infringing downloads by failing to control the use of their account. Either way, Voltage argued, default judgment should issue. The trial judge refused. The copyright owner appealed.

The Federal Court of Appeal said that the...