Federal Court grants copyright Norwich order against P2P users

In Voltage Pictures LLC c. Mr. or Ms. DOE, 2011 CF 1024 and 2011 FC 1024 (Translation), Justice Shore of the Federal Court granted an order allowing Voltage Pictures LLC, the production company behind the movie “Hurt Locker”, to obtain the identities of alleged P2P downloaders of the movie from various internet service providers (ISPs).

In the unopposed motion, the Court considered the requirements under PIPEDA, the requirements under Rule 238 of the Federal Courts Rules, and the 2005 Federal Court of Appeal decision in BMG Canada v. John Doe, 2005 FCA 193.

A Norwich order is used to obtain information from a third party necessary to identify defendants. The Ontario Superior Court in Tetefsky v. General Motors Corp., 2010 ONSC 1675 has described the order as follows:

[34]           A Norwich Order takes its name from the Norwich Pharmacal & Others v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.). Norwich Pharmacal knew that a patent that it owned was being infringed, but it did not know the names of the infringers. It asked the Customs and Excise Commissioners in England, who did know, for the names. After the Commissioners refused to provide the information, exercising an equitable jurisdiction associated with the ancient equitable bill of discovery, the House of Lords held that the court had the discretion to order discovery from a non-party and the Law Lords ordered the Commissioners to provide the information.

In this case the plaintiff started the action (T-1311-11) on August 24, 2011 with a statement of claim and simultaneously filed the motion under Rule 238. It is not clear from the docket if the ISPs were served with the motion, had knowledge of the motion or had agreed not to oppose the motion – none appeared at the hearing on August 29, 2011.

Voltage Pictures LLC has been involved in similar litigation against P2P downloaders in the United States over the “Hurt Locker” movie, including pursuing 5000 alleged downloaders in the United States according to media reports.