Canadian Court Rejects Reverse Class Action Against BitTorrent Pirates
Movie studio Voltage Pictures is no stranger to suing BitTorrent users.
The company and its subsidiaries have filed numerous lawsuits against alleged pirates in the United States, Europe, Canada and Australia, and likely made a lot of money doing so.
Voltage and other copyright holders who initiate these cases generally rely on IP addresses as evidence. With this information in hand, they ask the courts to order Internet providers to hand over the personal details of the associated account holders, so the alleged pirates can be pursued for settlements.
In Canada, Voltage tried to get these personal details from a large group of copyright infringers by filing a reverse class-action lawsuit, which is relatively rare. The movie company argued that this is a cheaper way to target large numbers of infringers at once.
The lawsuit in question was initially filed in 2016 and dragged on for years. The case revolves around a representative defendant, Robert Salna, who provides WiFi services to tenants. Through Salna, Voltage hoped to catch a group of infringers.
As the case went on the Canadian Internet Policy and Public Interest Clinic (CIPPIC) took interest in the case. The group, which is connected to the University of Ottawa, eventually intervened to represent anonymous defendants.
Among other things, CIPPIC argued that the movie company failed to identify an actual infringer. It targets multiple ‘infringing’ IP-addresses, which are not unique and can be used by multiple persons at once. In addition, unprotected WiFi networks may be open to the public at large.
Since the IP-addresses are not necessarily the infringers, Voltage has no reasonable cause to file the reverse class action, CIPPIC’s submission argued.
This week the Federal Court of Canada ruled on the matter and Justice Boswell agreed with CIPPIC.
“I agree with CIPPIC’s submissions that Voltage’s pleadings do not disclose a reasonable cause of action with respect to primary infringement. While Voltage alleges that its forensic software identified a direct infringement in [sic] Voltage’s films, Voltage has failed to identify a Direct Infringer in its amended notice of application,” he writes.
Judge Boswell also agreed with CIPPIC’s critique of the class action procedure. These piracy cases deal with multiple infringers which will all have different circumstances. Reverse class action lawsuits are less suited to this scenario.
“A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist. The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue.”
The Judge further notes that there are other preferable means for Voltage to pursue its claims. These include joinder and consolidation of individual claims.
Based on these and other conclusions, Judge Boswell dismissed Voltage’s motion to certify the case as a reverse class action. In addition, the movie company was ordered to pay the costs of the proceeding, which could run to tens of thousands of dollars.
This is an important ruling as it takes a clear stand against the reverse class action strategy for this type of piracy case. And it may even go further than that. According to law professor Michael Geist, it can impact future file-sharing cases as well.
“I think the decision does have implications that extend beyond this specific class action strategy as it calls into doubt the direct link between IP address and infringement and raises questions about whether merely using BitTorrent rises to the level of secondary infringement,” Geist tells TorrentFreak.
CIPPIC’s director David Fewer is also happy with the outcome. He tells the Globe and Mail that if the motion was accepted, it could have “seriously expanded the threat of copyright liability to anyone allowing others to use an internet connection.”
While the ruling is a clear dismissal of the reverse class action approach, there are similar file-sharing cases in Canada that have proven to be more effective. As long as this practice remains profitable, it will probably not go away.
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A copy of Judge Boswell’s order is available here (pdf).
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Like with White OJ in the USA, this Trump-like mindset will try one tactic (approach) after another until something eventually will stick, depending on the judge they have of course.