Appeal court rules ISPs can’t charge for disclosing customer info

The Federal Court of Appeal has granted Voltage Pictures LLC its appeal challenging the costs Rogers Communications Inc. was asking for to disclose customer information in a copyright infringement case, which could increase the incentive copyright holders have for these kinds of cases. In a ruling Tuesday, justices of the appeal court determined that a lower court erred in allowing Rogers to charge $100 per hour per, plus taxes, to disclose the name and address of an alleged infringer at the centre of a reverse class action lawsuit. Voltage appealed the Federal Court ruling in August. While the law allows the Minister of Innovation, Science and Economic Development to fix a maximum fee for such work, no such regulation has been passed, Justice David Stratas said in the decision. “Thus, internet service providers such as Rogers cannot charge a fee for the discharge of their … obligations,” at least until the government puts in place rules specifying a maximum fee, he said. While ISPs can charge for the costs of sending the information and court participation, Stratas said those are likely to be very small. At the time of the original ruling, experts told The Wire Report the decision to charge for disclosure costs was a key aspect of the case, with University of Ottawa law professor Michael Geist saying the cost “may create a disincentive to these kinds of actions.” Independent Internet lawyer Allen Mendelsohn agreed at the time the amount was high enough to potentially act as a deterrent to Voltage, because Canadian law sets a low limit of $5,000 for copyright infringement, meaning it generally hasn’t been cost effective to go after infringers individually. Tuesday’s decision could change that, though the justice stopped short of specifying what would be an appropriate figure ISPs could charge for court and transmission costs. Voltage sees “Rogers’ fee and the Federal Court’s approval of it as a multi-million dollar barrier between them and the starting gate for their legal proceedings—proceedings they consider necessary to protect and vindicate their rights in the movies they make,” Stratas wrote in the decision. “Thus, to the extent it can, the legislative regime must be interpreted to allow copyright owners to protect and vindicate their rights as quickly, easily and efficiently as possible while ensuring fair treatment of all.” Costs were at the centre of a previous case involving Voltage and TekSavvy Solutions Inc., where in February 2014 the court ordered Teksavvy to hand over the names and addresses of nearly 2,000 subscribers and set the final costs that Voltage was required to pay to get that information at around $33,000 in total. However, Voltage never paid for that information, as The Wire Report reported earlier this year. The law obliges ISPs to retain records that allow it to identify suspected infringers, and that obligation includes translating or modifying the records so that that they are usable by copyright owners and courts. “The default position of ‘no regulation and, thus, no fee’ for the 41.26(1) obligations is a legislative choice that, at least for the time being, prioritizes considerations of access to identifying information to allow copyright owners the ability to protect and vindicate their rights over the economic interests of internet service providers,” Stratas argued. He added that ISPs can then pass those costs on to their subscribers, “some of whom are the suspected infringers.” However, he said, the legislation does allow ISPs to charge “for the actual, reasonable and necessary costs associated with the act of disclosure” — that is, the costs for delivery or electronic transmission of those records — which are likely to be negligible. They can also charge for their participation in obtaining a disclosure order from the court, which are likely to be “minimal.” “A single disclosure order can authorize the release of the identifying information of many suspected infringers, perhaps even thousands,” Stratas noted. Stratas wrote that if the Internet is allowed to “become a collection of safe houses from which pirates, with impunity, can pilfer the products of others’ dedication, creativity and industry,” the price to legally access works would increase and there would be less incentive to create them in the first place. “All the laudable aims of the Copyright Act — protecting creators’ and makers’ rights, fostering the fair dissemination of ideas and legitimate access to those ideas, promoting learning, advancing culture, encouraging innovation, competitiveness and investment, and enhancing the economy, wealth and employment—would be nullified,” he said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and Ahmad Hathout at ahathout@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Appeal court rules ISPs can’t charge for disclosing customer info

Broadcast | May 11, 2017

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Appeal court rules ISPs can’t charge for disclosing customer info

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