Supreme Court: Who Pays the Cost of Fighting Digital Piracy?

November 27, 2017

When a copyright holder believes their work is being infringed on in Canada, they will often look to internet service providers to identify the IP addresses of alleged infringers. Consistent with the practice for any third party discovery requests, ISPs asks to be compensated for their costs to process IP identification orders—a move that has stirred dispute and discussion among ISPs, privacy and consumer advocates and copyright holders. One such dispute is Rogers v. Voltage, an appeal to the Supreme Court of Canada in which Torys will be representing Rogers.

At the heart of the dispute is identifying what ISPs are obligated to do when they receive an order asking them to identify their customers by IP address, and how these obligations interface with existing copyright legislation. Part of the problem is the sheer volume of claims: Voltage said that it expected to be requesting more than 55,000 IP addresses across the industry.

But if ISPs are on the hook for incurring the costs and work necessary to process every identification claim received, as Rogers’s appeal application points out, the cost of processing tens of thousands of claims every year may ultimately be passed down to their customers: “[i]f upheld, the decision imposes costs and burdens on ISPs that are not contemplated by the legislative scheme. And that will require innocent users to bear compliance costs that should be borne by infringers.”

Interested parties will be watching for the SCC’s decision on this important hearing, which has yet to be scheduled.

Learn more about Torys’ Litigation and Dispute Resolution Practice here.

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