Rogers challenged disclosure motions after SCC ruling: court docs

Rogers Communications Inc. said it was surprised to see two motions for disclosure of subscriber information filed by two movie studios late last year and challenged them because they did not include how it would be compensated for retrieving the information, according to court documents. The motions brought by movie studios POW Nevada LLC and Bodyguard Productions Inc. came in late November and early December. Two months prior, in September, the Supreme Court of Canada determined that Rogers could recover “reasonable” costs to disclose subscriber identities alleged to have infringed copyright, overturning a lower court finding a year earlier. The disclosure requests came nearly two months before a case conference convened last month to set an April date to determine how much Rogers would be compensated for disclosing the records. The conference wasn’t set up at the time when the motions were filed. Rogers asked the court for an “urgent” conference to “discuss” the matters, as it did not consent to the motions. “In neither case do the orders provide for Rogers’ ability to recover its reasonable costs of complying with them,” Rogers’ lawyers wrote in a December letter to Federal Court about the disclosure motions, adding they were “surprised that both of these orders were submitted to the Court by the plaintiffs and issued when the matter of appropriate compensation remains outstanding.” The lawyers from Torys LLP added the motions should be amended to state that Rogers is entitled to “reasonable compensation in the amount to be determined.” What’s left to determine is what happens in the lead-up to April. Rogers told The Wire Report that the cost of any disclosure actions will be paid retroactively by the studios, going back to the SCC decision. But whether rightsholders have an option to accept or decline personal information if they determine it is cost-prohibitive after the work has been done to procure it was not answered. In a letter dated Dec. 5, movie studios lawyer Ken Clark said Rogers’ move requesting a case conference before filing evidence was “premature and improper” and may cause unnecessary delay and “waste judicial resources.” He also cited the Supreme Court’s determination that “motion judges should carefully review an ISP’s evidence to determine whether an ISP’s proposed fee is ‘reasonable,’” suggesting Rogers must put the evidence first for the court to hash that out. “It is very difficult to agree to a motion when the other side does not tell you what they are seeking,” Clark said in the letter, adding the telecom’s request to vary the motions is a “delay tactic that will do nothing to move these proceedings forward.” Rogers said it is in the process of finalizing evidence related to how long it took to look up information. Clark said in an email that he couldn’t say much about the matter when asked whether further disclosure motions would continue, only saying that “we have already brought disclosure motions since the SCC decision and that each ISP is expected to have a different system for disclosure and therefore different costs.” Meanwhile, since September, settlements in copyright infringement cases had not ceased. Back in August, The Wire Report chronicled the number of settlements that have been obtained from some of the accused -- totalling over $200,000 since the beginning of the year. An updated review of the number of settlements since the Supreme Court decision found 24 defendants agreeing to pay $5,000, the maximum allowed under the law, according to court records viewed Wednesday. One settled to pay $3,000, another $2,000 and still another, $750. All in, Canadians agreed to pay an additional $125,000. Rogers said that following the May 2017 Appeal court decision that quashed the ability of ISPs to charge money to comply with the disclosure orders, the company saw an exponential increase in notice requests. Following the SCC order, it also said it expects to see a decrease in the number of subscribers being sued as a result of this decision because of the unwillingness of Voltage Pictures LLC, the movie studio that began pursuing Canadians in 2011 and who was opposite Rogers at the Supreme Court, to put forward costs for litigation in the past. However, since then, Voltage has paid the $75,000 in the court fund to allow for Robert Salna, the defendant in a reverse class action certification motion brought by the studio, to recover costs in the event he wins in that case. And so the case moves on to the certification stage, set for June. One point of concern emanating from the Supreme Court’s September decision was that the retention of records identified at the notice stage should be held “in an accurate manner and form in order to ensure prompt identification.” Otherwise, the decision said, the ISP could be at risk of statutory liability “for failing to actually forward notice to that person.” Experts this publication spoke to expressed concern about the accuracy requirement, with some saying ensuring accuracy at the notice-forwarding stage, which cannot incur costs for the telecom, would be an arduous and time-consuming process when the majority of those notices don’t turn into lawsuits. One such example was unearthed in the court record. It involves a corrections officer in Newfoundland and Labrador who did not receive the two notices that Rogers was supposed to pass along to him because the telecom had the incorrect email address on file. The official was subsequently served with a claim alleging he infringed on the copyright of Wind River Productions LLC. The issue reached an Kyle Upton, an advisor in the office of the president at Rogers, who sent a letter to the accused acknowledging the error on Rogers' part. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Rogers challenged disclosure motions after SCC ruling: court docs

Broadcast | February 8, 2019

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Rogers challenged disclosure motions after SCC ruling: court docs

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