Notice-and-Notice Regime Is Not A "Litigation Support Tool". The Federal Court Refuses To Certify A Class Action That Contemplates ISPs Assisting In The Enforcement Of Copyright

• Published date: 07 July 2023
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Copyright, Class Actions, Trials & Appeals & Compensation
• Law Firm: Bereskin & Parr LLP
• Author: Mr Adam Bobker and R. Scott MacKendrick

In Voltage Pictures, LLC v. Salna, 2023 FC 893, the Federal Court has once again refused to certify a reverse class action for online copyright infringement based on the sharing of movies via the internet.¹ In the proposed proceeding, a landlord named Richard Salna whose internet account had been used to share five (5) movies produced by the plaintiffs would have been a representative defendant on behalf of hundreds of unidentified internet account holders. These account holders were alleged to have continued to allow others to use their internet accounts to share the plaintiffs' movies despite having received a notice from their internet service provider (ISP) alerting them to the infringing activity. The claim alleged, among other things, that such account holders were liable for "authorizing" infringement of copyright in the movies, even if they themselves were not the ones that downloaded or shared the movies.

Voltage Pictures and related companies had produced the movies and were seeking statutory damages for copyright infringement from those responsible for sharing the movies online. Using internet search technologies, Voltage Pictures had identified hundreds of IP addresses associated with the sharing of movies online using Bit Torrent file sharing software. Among the hundreds of subscribers associated with these IP addresses, the plaintiffs had obtained a Court order (known as a Norwich order) compelling Rogers to disclose the name and contact information for Mr. Salna, as the subscriber whose account was associated with an IP address that had been used to share five (5) of the plaintiffs' movies online.

Voltage Pictures was hoping that by bringing a class proceeding in which Mr. Salna was the representative defendant for all the account holders associated with the IP addresses it had identified, it could avoid the expense of having to bring further Norwich proceedings to learn the names and contact information for the other alleged infringers, and the expense of separate cases and potential proceedings against each alleged infringer. Instead, Voltage Pictures "litigation plan" for the class action involved requiring the various internet service providers (ISPs) that had assigned the IP addresses to their customers to deliver a "Certification Notice" notifying the class members (the ISPs customers) of the class action and to also send "Order Notices" to their class member customers to facilitate communication with the class members for the...