Authorizing copyright infringement in the digital age

In 2012, Parliament enacted the Copyright Modernization Act to better address the new and changing ways that the internet facilitates online copyright infringement¹. More than 10 years later, the courts are still grappling with copyright allegations in a constantly changing technological landscape. A recent Federal Court of Appeal decision, Voltage Holdings, LLC v. Doe #1, 2023 FCA 194, demonstrates the difficulty in successfully establishing that an internet subscriber is authorizing infringement online.

What you need to know

• Authorizing infringement vs. providing technology that is used to infringe. The Court has drawn a clear distinction between authorizing infringement, which is prohibited by the Copyright Act, and providing technology that is used to infringe. Posting a work online and inviting others to copy it constitutes authorizing infringement; however, sharing internet access that others use to post a work online does not engage any copyright interest, and thus does not constitute authorizing infringement.
• The element of control. Authorizing infringement requires a respondent to have control over those who committed the resulting infringement; it does not depend on the alleged authorizer’s control over the supply of their technology. This means that control over the use of an internet account, devices or other similar instruments will not alone be considered sufficient control to establish authorizing infringement.
• The burden of evidence. Technological limitations will not reduce the burden of evidence necessary to establish a link between internet users and the infringing activity at issue; a mere association with an offending Internet Protocol (IP) address is not sufficient.

Background

Voltage Holdings, LLC, is a movie studio and the owner of the copyright to the film Revolt. The company detected that internet users were uploading and offering copies of its film online without consent. Voltage traced the IP addresses and sent warning notices to the relevant subscribers, advising that infringing activity had been detected at their IP addresses. If a second instance of infringement occurred within seven days at the same address, Voltage sent a second warning notice.

Voltage subsequently obtained Norwich orders requiring various internet service providers (ISPs) to provide it with the internet subscribers’ identities (names and addresses) based on the IP addresses at which the infringement was occurring. Voltage then served 30 of those internet subscribers (those it described as the “worst of the worst” offenders) with a statement of claim for two types of copyright infringement: direct infringement and authorizing infringement.

The company alleged direct infringement on the grounds that internet users were making Voltage’s protected work available for download online (by posting or uploading the work). It alleged authorizing infringement with respect to internet subscribers who shared their internet access so as to enable others to post or upload the protected work online and make it available for others. Certain defendants did not respond and were noted in default. Voltage moved for default judgment.

The Court’s decision

Direct infringement

The Court declined to find direct infringement. Voltage argued that the Court should draw an inference that the internet subscribers identified by the ISPs were the direct infringers.

Though Voltage claimed that it advanced all of the evidence “technologically possible” to identify the infringers, the Court nonetheless found it insufficient to establish a clear link between the respondents and the infringing activity. Citing the Supreme Court in Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38 (Rogers), the Court noted that an internet subscriber cannot be assumed to be the individual responsible for any infringing activity connected to their internet account; a mere association with an offending IP address does not conclusively mean that the corresponding internet subscriber shared copyrighted material online. Drawing such an inference would make subscribers strictly liable for all infringing activity associated with their account, which the Supreme Court had rejected in Rogers.

Authorizing infringement

The Court also declined to find authorizing infringement, for two reasons.

First, the Court noted that copyright authorization depends on the alleged authorizer’s control over the person who committed the resulting infringement; it does not depend on the alleged authorizer’s control over the supply of their technology. It therefore concluded that Voltage’s evidence was insufficient to establish control, since it could only establish that two notices were sent to the subscribers associated with the offending IP addresses.

Second, and most importantly, the Court drew a distinction between authorizing infringement and making the technology available that is used to infringe (i.e., “third-party authorization”). Authorizing infringement means (in the online context) posting a work online and inviting others to copy it, which clearly infringes a copyright owner’s exclusive authorization right under sections 3(1) and 27(1) of the Copyright Act. However, this differs from third-party authorization, as alleged by Voltage: sharing internet access after receiving notices of alleged infringement does not engage any copyright interest granted to the author exclusively. An authorizer, then, is someone who permits reproduction, rather than permits someone else to permit reproduction. As such, Voltage was unable to establish copyright authorization based on the respondents sharing internet access with others who allegedly committed copyright infringement.

Implications: expect greater difficulty in establishing online copyright claims

Voltage is a strong indication of the difficulty litigants can expect to face when pursuing online copyright claims. The Court held that to establish claims of direct or authorizing infringement, sufficient evidence (beyond a subscriber’s IP address) will be required to firmly link the infringing activity to the alleged infringers.

Moreover, Voltage clarifies the definition of authorizing infringement: an authorizer permits reproduction, rather than permits someone else to permit reproduction. The Court’s clear distinction between these two concepts illustrates the limitations associated with pursuing a claim for online copyright infringement. While a person who uploads a work online and invites others to view it will engage an author’s copyright interest (and thus be liable), those that continue to provide internet access for such people and fail to take steps to prevent their actions will not be.