IP addresses don’t necessarily link to individuals, CIPPIC argues

In asking the Federal Court to deny certifying a class of defendants in a copyright infringement case, an advocacy group is arguing that an IP address is insufficient in proving an individual has committed infringing activity -- a point that has proved successful in United States courts. The Canadian Internet Policy and Public Interest Clinic said in one of several arguments submitted to the court this month that plaintiff and movie producer Voltage Pictures LLC has not made a direct link between the IP addresses it traced to alleged infringement to any individual that can be brought to justice. This means that the movie studio has not satisfied one of the key requirements to have the court approve a class of some 55,000 alleged Canadian infringers it hopes to extract reparations from, CIPPIC argued as an intervenor in court on Monday. The court will hear arguments today and will again tomorrow about whether it should certify the reverse class, which would open the individuals up to a copyright infringement lawsuit in one case -- a rare pursuit in Canadian law. “Associating an IP address with particular internet activity does not identify the individual responsible for that activity,” the clinic, which is based at the University of Ottawa, argued in court filings. “Voltage has not provided any description as to who these parties are or how they may be identified.” The argument is similar to one that has won cases in the United States, where similar legal activity against alleged infringers are much more common. In Cobbler v. Gonzales, an appeals court in Oregon upheld a lower court ruling that dismissed a “direct” infringement case against the defendant, citing a lack of evidence that showed a link between the IP address and Gonzales. “Because multiple devices and individuals may be able to connect via an IP address, simply identifying the IP subscriber solves only part of the puzzle,” the U.S. court ruled. “A plaintiff must allege something more to create a reasonable inference that a subscriber is also an infringer.” The Cobbler case, which is referenced by CIPPIC, has since become something of a standard for subsequent cases south of the border. Shortly after, in September 2018, a court in Nevada, citing Cobbler, also turned away a case brought by Strike 3 Holdings against a subscriber for that reason. And later that year, a court in Illinois used the Cobbler case as a reference to dismiss another similar legal action brought by Malibu Media, ruling that the latter did not have sufficient evidence to link infringement to an individual based on an IP address. The courts in those cases sought a “reasonable inference” between the infringing activity and the individual and didn’t get one through simply an IP address. IP addresses can be tracked on file sharing services like BitTorrent if the user does not mask their addresses, which can be disguised using a virtual private network (VPN). But in some cases, as CIPPIC argues, an internet service account holder may unwittingly have an unsecure WiFi system, which allows anyone to connect to their service within range, or they may have shared their WiFi password with someone who shared it with someone else. All of that is to suggest that despite the account holder having an IP address attached to their name, it does not necessarily mean they are the ones who committed the alleged crime. Robert Salna -- the respondent in the Voltage case -- is a landlord, which makes his case similar in the Cobbler case because the defendant Gonzales was a nursing home owner where multiple residents have access to the WiFi. “This adds an additional layer of separation between a potential internet user, such as a tenant’s family member, friend, or a service person who visits the tenant to carry out repairs, and the ISP customer landlord,” CIPPIC argued. “It would be impossible for the ISP customer to identify all the persons who may have connected to the internet using the ISP customer’s IP address without specialized technical monitoring software.” “Without an identifiable respondent, it is plain and obvious that Voltage’s claims cannot succeed.” Voltage first launched the reverse class certification action in April 2016. The producer of the acclaimed film The Hurt Locker has since been on a merry-go-round of court actions, most of which involved some form of cost associated with either disclosure of subscriber info or whether it has to place thousands of dollars in a court trust in the event Salna wins the class action case. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca

IP addresses don’t necessarily link to individuals, CIPPIC argues

Broadcast | September 23, 2019

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