Rogers Communications Inc. v. Voltage Pictures, LLC

Coram:

• Majority: Justice Russell Brown (Wagner C.J., Abella, Moldaver, Karakatsanis, Gascon, Rowe, and Martin JJ. concurring)
• Concurring: Justice Suzanne Côté

Case Summary:

This case concerned whether Internet service providers (ISPs) like Rogers Communications Inc. can charge copyright holders for the work involved in identifying customers suspected of illegal downloading, particularly under the notice-and-notice regime introduced by the 2015 amendments to the Copyright Act.

Key Legal Issues:

1. Notice-and-Notice Regime: The regime requires ISPs to pass notices of potential copyright infringement from copyright holders to their customers and to keep records that can identify customers based on IP addresses.
2. Compensation for ISPs: Whether ISPs can charge copyright holders for the steps taken to identify and disclose the real-life identities of customers suspected of copyright infringement, particularly when some of those steps are already required under the Copyright Act.

Background:

• A group of film producers, including Voltage Pictures, sought the identity of a Rogers customer to pursue legal action for alleged copyright infringement. They obtained a court order requiring Rogers to disclose this information.
• Rogers collected the requested information but argued that the film producers should pay a fee for the disclosure. Rogers maintained that while some steps in the process were mandated under the notice-and-notice regime, others were not, and they should be compensated for those additional steps.
• The Federal Court initially ruled in favor of Rogers, allowing them to charge for all steps taken to identify the customer. However, the Federal Court of Appeal overturned this decision, concluding that Rogers could not charge for any steps it was already required to perform under the Copyright Act.

Supreme Court of Canada Ruling:

Majority Opinion (Justice Brown):

• Partial Compensation: Justice Brown ruled that ISPs can charge copyright holders a reasonable fee for steps that are not mandated by the notice-and-notice regime. Specifically, Rogers could charge for tasks such as connecting an IP address to a customer’s real-life identity and sharing that information with the copyright holder. However, Rogers could not charge for tasks already required under the regime, such as ensuring the accuracy of the records and confirming the information.
• Outcome: The majority decided that the matter should be sent back to the motion judge to determine the appropriate fee Rogers could charge for the steps that were not covered by the statutory requirements of the Copyright Act.

Concurring Opinion (Justice Côté):

• Full Compensation: Justice Côté agreed with the majority that ISPs should be paid for their efforts in complying with court orders to disclose customer identities. However, she argued that Rogers should be compensated for all eight steps in the process, including those related to ensuring the accuracy of customer information. She emphasized the importance of accurate identification to avoid the risk of wrongful lawsuits, which justified full compensation for the entire process.

This decision clarified the scope of what ISPs could charge for when identifying customers suspected of illegal downloading. The court drew a distinction between actions mandated by the Copyright Act, for which ISPs could not charge, and additional efforts necessary to comply with court orders, for which they could charge. The case was remanded to the motion judge to determine the specific amount Rogers could charge the copyright holders.