Alberta judge denies injunction in Super Channel piracy suit

An Alberta judge shot down a request from Allarco Entertainment 2008 Inc. for an injunction against Best Buy Canada Ltd., Staples Canada ULC, Canada Computers Inc., and London Drugs Limited as part of its suit against the retailers whose employees allegedly recommended to customers that they pirate content using media boxes. In a decision released Friday, Justice Michael Lema of the province’s Court of Queen’s Bench denied Edmonton-based Allarco, the owner of the Super Channel television network, an injunction stopping the stores from selling “certain TV set-top boxes.” The company also wanted the retailers to have to caution people who bought the boxes against using them to access pirated content, which Lema denied as well. “I find no material evidence of encouragement and guidance or at least any causing harm to Allarco and, in any case, no evidence of any continuing such conduct or any material risk of it,” wrote Lema, who also said that the TV boxes in question “have legitimate uses and that any post-purchase misuse by consumers cannot be blamed on the retailers.” “There is no serious case to be tried here. Allarco’s entire case for an injunction is built on assertions that the decline in its subscriber base and otherwise suboptimal performance has been caused by programming piracy of consumers using ‘pirate devices’ sold by the retailers and that such damage will continue absent an injunction,” Lema said. In addition, Lema -- who wrote that the suit is “an off target anti-piracy campaign” -- has put a stay on Allarco’s main action until certain copyright owner(s) are added to the suit, while also awarding the stores’ costs. Lema said that “given the wide array of options” for buying set-top boxes across Canada and information online about how to use them, he couldn’t find any particular party responsible. “One way or another, such people are going to find out about set-top boxes, they are going to buy the kind of set-top box they need, and they are going to use it as they see fit,” he said. Allarco’s suit also lists 1 to 100 “John Doe” suppliers and 1 to 50,000 “John Doe” customers as defendants. In its statement of claim, Allarco’s Super Channel alleges many customers would not have accessed copyrighted content without the “encouragement, inciting, direction, inducement, authorization, enabling and education” provided by employees of the four retail stores. “This is especially egregious because the 4 Stores defendants hold themselves out to be reputable, experienced and trustworthy retailers in Canada which are relied on by Canadians for honest advice and service,” according to Allarco’s statement. The company’s suit was filed in Alberta after a similar Federal Court suit was dropped last March. Asked at the time why it had dropped its Federal Court case and launched litigation in Alberta, Super Channel told The Wire Report it could not comment as it was before the courts. Allarco was later ordered to pay a combined $59,416.87 in costs to the four companies. In the newer statement of claim filed in Alberta, Allarco asked the court to rule that the stores’ actions “constitute an unlawful conduct conspiracy.” Along with that, the company wanted the court to declare that the stores and unnamed customers have intentionally interfered with its business. Allarco’s Super Channel had previously published a video online of an undercover investigation in 2019 allegedly showing employees from major retail stores advising that the media boxes would allow access to “free” TV and movies. In arguing against the injunction requested by Allarco, the retailers claimed that any sales conduct recommending pirating was in response to a single customer, being the investigator, and was not common, as well as being outside of existing store policies. Lema wrote that the investigator travelled the country for over a year posing as a customer interested in buying one of the boxes and using it to access pirated content while secretly recording his interactions. “In other words, a person who, to all appearances, was already disposed to content piracy,” wrote Lema. In their shared brief referred to by Lema in his decision, the stores said they found in the investigator’s surveillance that some employees told him his planned activities were illegal, others did not know what he was talking about, and some had some knowledge on the topic and tried to answer his “leading questions,” and, “taken at its worst, these employees (who have no legal training) were only guilty of trying to assist a persistent customer ….” “The experiments tell me nothing about how often customers ask for assistance with set-top boxes, what they typically ask about, how often they ask for information about the capacities of different set-top boxes, how often they raise their intended uses of such products and, in such cases, how often they disclose their intention to use them to access pirated content,” wrote Lema. — Reporting by Hannah Daley at hdaley@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

Alberta judge denies injunction in Super Channel piracy suit

News | 05/03/2021 5:43 pm EDT

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