Court issues no-cost orders for customer IDs of multiple ISPs

The Federal Court has made its first major disclosure orders for subscriber information since internet service providers (ISPs) were temporarily barred from charging for that information. David Fewer, director at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), said an email the new rules relieve “rightsholders of a cost of enforcing their rights.” ISPs must now bear the cost, which he said may eventually be passed onto customers through higher rates. The three movie studios behind last week’s orders — ME2 Productions Inc., I.T. Productions LLC, and WWE Studios Finance Corp. — asked the court in June to compel 13 ISPs to hand over subscriber information, connected to 353 IP addresses, of those they believe infringed on their copyright. Most of the orders do not include cost requirements for retrieval of subscriber information, with the exception of at least one case where the parties consented to forms that included the old ISP fee model in the event the court granted disclosure. The motion for that case — in which ME2 would pay Amanah Tech Inc. $100 per hour plus tax — occurred before the Federal Court of Appeal temporarily halted the practice of charging disclosure fees in May. In that decision, the appeal court granted Voltage Pictures LLC its case challenging the costs Rogers Communications Inc. was asking for that disclosure, effectively preventing ISPs from charging rightsholders for the discovery until the government specifies a maximum fee, the decision said. The five-year review of the Copyright Modernization Act is set to take place next month. Rogers was looking to get $100 per hour plus tax for its work in retrieving the subscriber information, which was initially granted by a lower court. And while the company is asking the Supreme Court to allow it to appeal the case, some have said the May ruling could increase the incentive copyright holders have for these kinds of cases in the meantime. “No doubt the rights holders will take advantage as much as possible,” Allen Mendelsohn, who teaches internet law at the Faculty of Law at McGill University, said in an email. But Mendelsohn said that “while this is an advantage for rights holders, and it does make it easier for them to get subscriber info, I don’t think there is any balance being dramatically shifted” toward those holders. “There were plenty of copyright cases before the , there will be plenty after,” he said. “Nothing in the substantive law has changed.” Canadian law sets a limit of $5,000 for copyright infringement. That fact, plus the high cost of going after subscriber information amounted to a deterrent to rightsholders like Voltage, Mendelsohn noted previously. University of Ottawa law professor Michael Geist agreed earlier this year that the cost “may create a disincentive to these kinds of actions,” noting disclosure costs were an important point of contention in the case. So when TekSavvy was compelled in 2014 to disclose the names and addresses of nearly 2,000 subscribers and set the fee at $33,000 total, Voltage reportedly didn’t bite. As for whether we could expect to see an uptick in disclosure request cases in light of these orders, Fewer said “unlikely” — though it depends on whether they gauge it to be worth the effort. “It’s possible, if claimants think getting actual subscriber IDs will result in an appreciable increase in payments of demands,” Fewer said. But he noted that companies still need to go to court for a Norwich Order in order to obtain the IDs, and that process “may prove not worth the extra cost, involvement and time necessary.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Court issues no-cost orders for customer IDs of multiple ISPs

Broadcast | October 13, 2017

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Court issues no-cost orders for customer IDs of multiple ISPs

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