Law Times

Page 12 September 5, 2016 • Law timeS www.lawtimesnews.com Voltage seeks pay from illegal downloaders BY MARG. BRUINEMAN For Law Times V oltage Pictures is hop- ing a federal court will classify its reverse class action in its attempt to recoup losses from illegal movie downloads. The company is seeking com- pensation from a class of defen- dants it accuses of copyright infringement. Many observers see it as mission impossible and it leaves them to wonder about other possible motivations. Voltage initially filed its ap- plication in federal court in April against the representative plaintiff, 'John Doe.' Ken Clark, a partner at Aird & Berlis LLP in Toronto and lead lawyer act- ing for Voltage on the case, says Rogers Communications didn't challenge Voltage's request to obtain the identity of the pro- posed respondent. Now that she has been identified, the notice of motion is being amended. "What we're trying to do here is enforce on movie piracy in a cost-effective way for both the infringers and for the movie studio," says Clark. "If we're suc- cessful, what we hope to do is get some reasonable compensa- tion for our client and be able to make sure that people who have illegally downloaded a movie pay a fair amount for having en- joyed our client's content." By going after a class, Clark says, Voltage can seek compen- sation "in the hundreds" of dol- lars from many people instead of pursuing individual lawsuits at a much higher cost to all those involved. Voltage owns the rights to films including The Hurt Lock- er and Dallas Buyers' Club. Class members may opt out of any class proceedings and Clark says this is no different. But, he adds, anyone who opts in may be later subject to individual action. "Everybody would just pre- fer to get paid for their creation and not have to pay hundreds of thousands of dollars to defend a case like this. So we're trying to do it by way of class action and request a smaller amount of damages, which over the ag- gregate will cover both the cost of enforcement and bring back a reasonable amount of damages for the act of infringement of our clients' works," he says. The IP addresses of people Voltage accuses of copyright in- fringement are obtained through the use of "forensic software." Clark says data of individuals as well as dates and times of those who have illegally downloaded its products are constantly being updated. But, he says, once the identities are established, they do not need to be made public. If successful, the process can be used to enforce copyright on massive downloading and other types of online infringement, partly solving a growing problem for content creators, says Clark. The threat of action on its own may well serve Voltage's purposes, as well as other origi- nal content providers. But many lawyers question its odds of suc- cess in the case itself and the me- chanics of the process. "If it would work, I think it would be an effective remedy," says John McKeown, a certified specialist in intellectual property law with Toronto-based Gold- man Sloan Nash & Haber LLP. "No one can finance the prospect of going out there and bringing multitudes of lawsuits against multitudes of defendants. It's not economical. So, theoretically, this would provide a remedy. "The problem is, it may not be workable." Among the issues he sees with this approach is how the class is financed. A regular class action seeks to gain compensation for the class from which costs for the proceedings are financed in the final payout, if the action is successful. But in this situation, Voltage is seeking compensation from class members, so the tra- ditional method of financing the lawyers and other costs related to the class action isn't clear. And in a reverse class action, opting out of a class takes on a whole different meaning. "In the context of the plaintiff class, the opt-out mechanism makes sense because you have to take positive steps to exclude yourself and if you don't you're automatically in" and you can benefit, says Garth Myers, class action lawyer at Koskie Minsky LLP in Toronto. "The corollary to that in the defendant classes is actually the opposite where if you don't take any steps you'll be harmed by being found liable." A concern for Michael Geist, of the University of Ottawa's fac- ulty of law, is the possibility that the company is using the process as a means of accessing the iden- tity of those it believes are pirat- ing films. "Voltage would appear to be using this mechanism to try to identify alleged file sharers and looking for a court order to do that and using this system to get at them. So, if the goal is to try to identify people and then issue ac- tions after that, in a sense, this is a bit of an end [run] around some of the privacy protections the courts established around these types of cases," he says. LT FOCUS Ken Clark says a legal action in an attempt to recoup losses from illegal movie down- loads is to 'enforce on movie piracy in a cost-effective way.' No one can finance the prospect of going out there and bringing multitudes of lawsuits against multitudes of defendants. John McKeown Start with Practical Law Canada – Corporate & Commercial Litigation. Practical Law Canada – Corporate & Commercial Litigation offers you continuously maintained, up-to-date resources that contain the legal know-how that lawyers need to practise more efficiently, improve client service and never miss a step. Our expert lawyer-editors have significant practice experience and create and maintain uniquely practical resources so you don't have to, allowing you to save time with straightforward, up-to-date resources such as: • Class Actions: Overview Practice Note • Class Actions: Certification Criteria Practice Note • Class Actions: Costs and Fees Practice Note Sign up for a FREE TRIAL now at practicallaw.ca STARTING FROM SCRATCH IS GREAT UNLESS YOU'RE CONDUCTING A CLASS ACTION. © 2016 Thomson Reuters Canada Limited 00234WA-A53694-CM Untitled-8 1 2016-08-30 2:05 PM

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