New copyright legislation was introduced today in the House of Commons, as the Copyright Modernization Act, Bill C-11. The Bill is expected to be substantially similar to the previous version.
As mentioned last week, the Federal Court issued an order allowing Voltage Pictures to obtain information from ISPs about subscribers who had allegedly downloaded the “Hurt Locker” movie (Voltage Pictures LLC c. Mr. or Ms. DOE, 2011 CF 1024 – Translation). A copy of the supporting affidavit (PDF) providing the plaintiff’s facts linking the downloading of the movie to IP addresses is now available online (thanks @AnthonyHemond).
In BMG Canada v. Doe, 2005 FCA 193, one of the leading cases in this area of the law, the recording companies brought a motion for documents in the possession of the ISPs under Federal Courts Rules, Rule 233. The court ultimately denied the motion in that case and concluded that the supporting evidence connecting the pseudonyms of the P2P users with IP addresses was inadequate. At the time, the Federal Court of Appeal wrote:
 Much of the crucial evidence submitted by the appellants was hearsay and no grounds are provided for accepting that hearsay evidence. In particular, the evidence purporting to connect the pseudonyms with the IP addresses was hearsay thus creating the risk that innocent persons might have their privacy invaded and also be named as defendants where it is not warranted. Without this evidence there is no basis upon which the motion can be granted and for this reason alone the appeal should be dismissed.
From the Federal Court’s ruling in the Voltage proceeding, this does not appear to have been an issue.
Yesterday, the Supreme Court of Canada granted leave to appeal in the case of Re:Sound v. Motion Picture Theatre Associations of Canada, et al. (SCC case #34210) which is an appeal from Federal Court of Appeal decision 2011 FCA 70.
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:
 A Norwich Order takes its name from the Norwich Pharmacal & Others v. Customs and Excise Commissioners,  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.
Earlier today, UK’s highest court held in Lucasfilm Ltd v Ainsworth that the English courts can decide the issue of infringement of U.S. copyright where there is jurisdiction over the defendant. Continue reading UK Supreme Court on enforcement of foreign IP