Voltage Holdings, LLC v. Doe #1, 2023 FCA 194
Justice Stratas; Justice Webb; Justice Rennie - 2023-09-27
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The appellant sought default judgment against the respondents for two types of copyright infringement: direct infringement and authorizing infringement. In respect of the first, the appellant asserted that the respondents directly infringed its copyright by making a protected work available for download online (by posting or uploading the work); in respect of the latter, the appellant asserted that the respondents authorized an unknown person to directly infringe the appellant’s copyright. The Federal Court (2022 FC 827, per Furlanetto J.) dismissed the motion ... However, given my prior conclusion that the appellant had failed to provide the Federal Court with sufficient evidence necessary to establish a link between the respondents and the infringing activity, no adverse inference could properly have been drawn in the circumstances, regardless of the procedural steps undertaken by the appellant. ... To establish an infringing activity, there must be evidence that what the activity does to the work engages one of the three interests in subsection 3(1) of the Act. Posting a work online and inviting others to view it engages the author’s authorization right; however, sharing internet access after receiving notices of alleged infringement does nothing to the work in question, and does not therefore engage any copyright interest granted to the author exclusively. Because the latter scenario arises here, the activity asserted by the appellant as “authorization” cannot justify protection under the Act.
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