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This case has already been covered in detail by Nicole Daniels here. The case—and that post—focus more on the issue of who should bear liability for the costs of actions undertaken to combat infringement. This post focuses on the underlying reasons the SCC may have had in reaching their decision.
Rogers Communications Inc v Voltage Pictures 2018 SCC 38 [Rogers] is a case about the division between the “notice and notice” regime (ss. 41.25 and 41.26 of the Copyright Act, RSC 1985 c C-42), and a Norwich order (a discovery order originating in the House of Lords in Norwich Pharmacal Co. v Customs and Excise Commissioners,  AC 133), both of which entail certain overlapping responsibilities on the part of an internet service provider (“ISP”). Responsibilities covered under the notice and notice regime are not open to compensation for ISPs, unlike Norwich orders. In Rogers, the Supreme Court of Canada (“SCC”) determined whether the appellant ISP, having already sent notice on behalf of the respondent to the owner of an internet protocol (“IP”) address associated with copyright infringement, had to do any extra work to identify that individual.
Though judgments by the Federal Court (“FC”) and the Federal Court? of Appeal (“FCA”) were admittedly divided on the issue of whether Rogers should be compensated or not for its compliance with the Norwich order (and if so, to what extent), the case seems, on the surface, straightforward enough to not necessarily warrant intervention by the SCC. But why did the SCC choose this case, other than maybe for a review of the legislation? Perhaps it was just to clear up the debate and overturn? the FCA’s controversial? ruling. Or, perhaps, the SCC saw some action that needed stopping and rights that needed protecting.
This post examines some of the contentious issues behind this case—reverse class action lawsuits, internet subscribers’ rights—to argue that, while its final majority decision was fair, maybe the SCC was guided by some social policy objectives.
Reverse Class Actions
Voltage Films brought the Norwich order against Rogers in order to build a case against individuals allegedly engaged in illegal peer-to-peer sharing of Voltage’s films. Voltage knew the IP addresses of these individuals, and issued Rogers to identify one such individual (called “John Doe”), so Voltage could sue him—intending to eventually have the action certified as a reverse class action lawsuit against approximately 55,000 similar alleged infringers.
A reverse class action lawsuit works just as it says on the tin: instead of a number of plaintiffs against one defendant, one plaintiff takes on numerous defendants. Such action has been attempted only infrequently in Canada; reverse class actions have been brought before the courts more often in the United States, though not always successfully. For example, one U.S. judge dismissed a case after determining plaintiff’s counsel to be on a “fishing expedition.” The implication here is that reverse class actions are superfluous, particularly when the defendants are all anonymous internet subscribers known only by their IP address, their alleged dealings in copyright infringement, and not much else. Scrounging up the identities of all these John Does—reverse class actions can involve dozens, even hundreds, of defendants—requires a lot of work on the part of ISPs. This added workload increases the chance of making mistakes. The entire SCC—both the majority and Justice C?té—note that the owner of the prescribed IP address may be innocent of the alleged copyright infringement. The owner of the IP address may not be the one who shared or downloaded the copyrighted materials, for example, or the copyright owner or ISP could have erred in identifying or inputting the relevant IP address. Freely sharing the personal details of alleged copyright infringers could be detrimental to the privacy interests of innocent people.
There are other issues with reverse class action lawsuits, such as legal representation. Lawyers may be willing to offer representation in a regular class action, but Voltage’s planned lawsuit does not offer the same kind of potential payoff at the end of the case, so it would be difficult to find representation for the defendants. Even if representation were found, there are other procedural issues to consider: defendants may opt out of the class (which would render the copyright owner’s obtainment of an alleged infringer’s identifying information completely meaningless), and even if they do not, there may be issues concerning commonality among the defendants’ arguments, and thus making it difficult to build a defence.
A similar case by Voltage Pictures was struck down in Oregon in 2013 by a federal judge who claimed that the company was taking advantage of the reduced costs associated with a reverse class action lawsuit to intimidate 34 defendants at once. The previous reluctance on the part of the courts to accept reverse class action lawsuits lays the groundwork for this decision, where the SCC was hesitant to pave the way for a strategy that would reduce costs for a copyright owner, and thereby make it easier for them to pursue reverse class action lawsuits.
The Rights of Internet Subscribers
The notice and notice regime works in two steps: first, a copyright owner, alerted to an IP address infringing its copyright, sends notice of such to the appropriate ISP. The ISP then forwards notice to the owner of the IP address. The ISP is liable for all costs of this process, so it is unlikely to take any unnecessary additional steps. Parliament had two complementary goals in enacting the notice and notice regime: “(1) to deter online copyright infringement; and (2) to balance the rights of interested parties” (Rogers, para 22; emphasis added). “Interested parties” refers to copyright owners, ISPs, and internet subscribers.
The case seemed less concerned with the compensation of costs (which may be negligible), and more with affirming the broader purpose of the notice and notice regime as concerned with protecting the rights of all interested parties. As Justice Brown notes, the regime “account[s] for the interests of internet subscribers by maintaining the presumption of innocence and allowing them to monitor their own behaviour…” (Rogers, para 26). The notice and notice regime thus recognizes the autonomy of individuals whose privacy rights must be protected. This is notably divergent from the “notice and take down” regime employed in the United States, where the ISP, upon receiving notice from the copyright owner, blocks or removes the alleged infringer’s access to the relevant material. The notice and notice regime is more cognizant of internet subscribers’ rights—ostensibly, including privacy rights.
The notice and notice regime “does not require an ISP to actually disclose the records to which the provision refers” (Rogers, para 43); a Norwich order is necessary for disclosure to copyright owners who want to sue the alleged infringer. The notice and notice regime is meant to work in tandem with a device like a Norwich order; it cannot alone eradicate online copyright infringement. This must mean that the notice and notice regime cannot do what the Norwich order does and demand identification of internet subscribers from ISPs. Thus, the liability of the cost shifts to the copyright owner, who now has a burden to bear in exchange for violating internet subscribers’ privacy rights.
Pushing for Privacy
The written judgment itself alights on the subject of privacy several times, but never really settles on the topic. This is likely because privacy is only tangentially connected to the crux of this case, but the occasional mentions throughout demonstrate that privacy is an important guiding factor in the SCC’s decision.
Justice Boswell of the FC, the motion judge, in originally granting Rogers the right to compensation for its Norwich compliance, specially ordered that Rogers only share the name and physical address of John Doe. This was in specific consideration of the privacy interests of internet subscribers, again reflecting back on the purpose of the notice and notice regime to protect the interests of all parties, not just copyright owners. Interestingly, Justice Boswell went on to conclude that such disclosure was not part of the ISP’s obligations under the notice and notice regime, a stance closer to the SCC’s than the FCA’s was. The FCA seemed to make no such note of internet subscribers’ privacy rights, instead interpreting the notice and notice regime with a focus on the rights of copyright holders to protect their works—a ruling the SCC promptly overturned. This suggests the importance of privacy as a principle, even if not an overt one.
Rogers also clarified the elements of a Norwich order, a first for the SCC. Though the SCC stressed that these elements were not themselves in dispute, a re-ordering in priorities may have been pertinent: rather than an emphasis on the ISP’s need to “be reasonably compensated for his expenses arising out of compliance with the discovery order”, the focus of the test could have shifted instead to the fifth and final element, “the public interests in favour of disclosure must outweigh the legitimate privacy concerns” (Rogers, para 18). Could rather than should, because the SCC’s decision seemed to ultimately fulfill the objective of privacy protection.
All things considered, it is easy to assume that the SCC took this case, and its decision, as a chance to explicitly balance the interests of all affected parties by setting out some sort of obstacle to copyright owners seeking the identification of internet subscribers associated with copyright infringement. Compensating an ISP for its compliance with a Norwich order—what could amount to a relatively low amount, even if multiplied by dozens, sometimes even hundreds, ?of defendants—might not act as much of a deterrent to some wealthier copyright owners, but it may be enough to act as some sort of screen between copyright owners pursuing their right to guard against infringement of their intellectual property and the privacy rights of internet subscribers. Reverse class actions are often used because, as noted above, they cut court costs and thereby make the pursuit of multiple settlements faster, cheaper, and overall easier. But the government did not intend to make it easier for copyright owners to get the identities off alleged infringers from ISPs; the notice and notice regime “does not regulate an ISP’s disclosure of a subscriber’s identity to a copyright owner” (Rogers, para 10).
Of course, without explicit confirmation from the SCC itself, this is just speculation. Maybe the SCC decision to compensate ISPs for the extra work they do to comply with a Norwich order is just that—compensation for a completed job not statutorily dictated as a duty. Maybe the SCC really just came to the very logical conclusion based on its reading of the Copyright Act. Maybe the SCC was guided by social policy. Or maybe it shaded in the case around a sketched-out need to protect individual internet subscribers from copyright companies, like David from Goliath. It would not be the first time.