TORONTO - Pirates beware.
In a landmark decision, the Federal Court has signalled that Canadians who illegally download movies can no longer hide behind the anonymity of their IP address.
Ontario Internet service provider TekSavvy Solutions was ordered Thursday to provide the names and addresses of 2,000 subscribers alleged to have used BitTorrent to download movies copyrighted by Voltage Pictures, maker of such Hollywood films as The Hurt Locker and Dallas Buyers Club.
Voltage says it plans to use the contact information to sue the 2,000 users for “the unauthorized copying and distribution” of its movies. The decision could set a precedent for other companies to go after Canadians who pirate music and TV shows as well.
“Any movie that comes out is illegally downloaded 40,000 times a week in Ontario, let alone the rest of the world. It’s huge,” said lawyer James Zibarras, who represented Voltage Pictures. “Now, going forward the message is that you’re rolling the dice if you download illegally. You might show up in a court proceeding.”
Zibarras hopes the ruling will reverse the trend set by a 2006 court of appeal decision that prevented BMG from getting access to the identities of people illegally sharing their copyrighted music. “That sent the message to the public that there was a green light to download whatever they wanted to. Downloading increased exponentially.”
It’s easy to argue that such sharing of copyrighted material is illegal and unfair. But is this legal fight really about valid anti-piracy concerns or a bid to extort money from easy pawns? David Fewer, director of Canadian Internet Policy and Public Interest Clinic (CIPPIC), suspects it’s the latter.
In the U.S., it’s known as copyright trolling where companies send out threatening letters to suspected downloaders to shake them down for thousands of dollars in exchange for settling copyright lawsuits out of court. And when they do go to litigation, the damage awards have been startling — in 2012, a Virginia man was ordered to pay $1.5 million to an adult entertainment company for sharing 10 of their movies on BitTorrent, a peer-to-peer file sharing program.
“It’s especially egregious with porn,” explains Fewer of CIPPIC, which intervened in the case against Voltage Pictures. “They threaten you with a lawsuit and then ask, ‘What’s your reputation worth?’ People are willing to pay big bucks to make those go away.”
The 2,000 suspected Ontario pirates — and they know who they are because Teksavvy gave them a heads up when Voltage went to court last year — don’t have to worry about coughing up those kind of ridiculous six-figure amounts we’ve seen in the U.S. The Federal Court ruling imposes strict judicial oversight on any efforts by Voltage Pictures to seek damages.
“In my view, the order herein balances the rights of Internet users who are alleged to have downloaded the copyright works against the rights of Voltage to enforce its rights in those works,” wrote judge Kevin Aalto.
The suspected downloaders don’t have to reach into their wallets any time soon.
Before Voltage Pictures gets the 2,000 names and addresses it wants, the court said it must first pay Teksavvy’s costs. “My prediction is Voltage will not want to pay,” Fewer said, “and the matter ends there.”
If they do pay, they must then submit their “demand letter” to the court for approval before it can be sent out to the 2,000 Teksavvy customers. In bold type, these notices must advise them to seek legal advice and indicate that no court has determined that they are guilty or must pay up.
The balanced decision warns copyright trolls that they won’t find a big payday here and that Canadian courts won’t be used to intimidate and extort suspected downloaders.
The maximum for damages in Canada is $5,000 but Fewer doubts the federal court will allow anything near that amount. “The evidence of copyright infringement isn’t a winning lottery ticket,” said the CIPPIC director. “I think $100 is the most they could reasonably hope to get.”
But while they may not hit the jackpot in damages, Voltage Pictures might still score this case as a box office success — a lot of would-be pirates might just be frightened into heading to their local theatre instead.