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Appeals Court Revives Canadian Reverse Class Action Against BitTorrent Pirates


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Canada's Federal Court of Appeals has revived a reverse class-action lawsuit from Voltage Pictures, which plans to go after alleged BitTorrent pirates. The lower court rejected this approach, as it would not suitable for file-sharing cases, but in a unanimous decision, the Court of Appeals sees things differently.

Movie studio Voltage Pictures has gone after alleged movie pirates for many years now.

The company and its subsidiaries have filed numerous lawsuits against alleged pirates in the United States, Australia, and Europe, which likely brought in substantial revenues.

Last week, we reported that Voltage just launched a new legal campaign in the UK. At the same time, there is news coming from Canada as well, where Voltage hopes to hold alleged pirates responsible through a novel strategy.

Reverse Class-action Against BitTorrent Pirates

In Canada, Voltage is attempting to obtain the personal details of a large group of copyright infringers through a reverse class-action lawsuit, which is relatively rare. The movie company argued that this is a cheaper way to target large numbers of infringers at once.

The lawsuit in question was initially filed in 2016 and has dragged on for years. The case revolves around a representative defendant, Robert Salna, who provides WiFi services to tenants. Through Salna, Voltage hoped to catch a larger group of infringers.

As the case progressed it garnered the interest of the Canadian Internet Policy and Public Interest Clinic (CIPPIC). The group, which is connected to the University of Ottawa, eventually intervened in the Federal Court proceeding to represent anonymous defendants.

Case Dismissed

This intervention helped to get the case dismissed in 2019. At the time, the Federal Court concluded that the case deals with multiple infringers which will all have different circumstances. Reverse class-action lawsuits are less suited to this scenario.

“A class proceeding is not a preferable procedure for the just and efficient resolution of any common issues which may exist. The proposed proceeding would require multiple individual fact-findings for each class member on almost every issue,” Judge Boswell wrote at the time.

This was good news for the large group of anonymous defendants, who had yet to be named. However, Voltage was not planning to let the matter go. The movie company appealed, and not without success, as the Federal Court of Appeals has just reversed the lower court’s judgment.

Court of Appeals Revives Class-Action

Justice Rennie set aside the 2019 Federal Court ruling and pointed out several reversible errors. For example, the argument that the reverse class-action is a novel approach should not be a reason to dismiss the matter. Voltage should get the chance to test its arguments in court.

The Court further notes that the criteria to join two or more defendants in a class action has a low standard, and it sees no reason to prevent the case from moving forward on that ground.

In the order, Justice Rennie writes that there is not enough evidence to determine whether a class action is the preferable procedure and whether Mr. Salna is a representative defendant, so this question was sent back to the lower court.

The ruling further clarified that copyright holders can use the “notice-and-notice” regime to send litigation updates to accused subscribers. These notices will be forwarded by ISPs, a practice that was barred by the lower court.

Minimizing Costs

The ruling once again puts thousands of alleged movie pirates at risk. If Voltage wins the lawsuit it can go after a large group of defendants while minimizing its legal costs.

Interestingly, Justice Rennie notes that the reverse class-action approach can be beneficial for accused pirates as well. They will be able to pool their resources to fight the matter.

While the ruling is a clear victory for Voltage, the Federal Court has to review the matter once again, so it’s far from clear that the movie company will eventually get the green light to go after thousands of alleged pirates.

If Voltage fails, the company still has other options. As we have previously reported, more traditional copyright lawsuits have also been effective against hundreds of alleged pirates. They may be a bit more expensive but, as long as they’re profitable, they will probably not go away.

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