Federal Court Of Appeal Of Canada Dismisses Appeal Relating To Copyright Infringement Action Against Internet Account Holders

On September 27, 2023, the Federal Court of Appeal (the Court) in Voltage Holdings, LLC v Doe #1, 2023 FCA 194, dismissed an appeal that sought to hold internet account holders whose IP addresses had been linked to copyright infringement activities liable for copyright infringement.  The Court found that linking an IP address involved in infringing activities to the identity of an internet account holder was insufficient to prove that the account holder was the person responsible for the infringing activity associated with their account.

The Appellant, Voltage Holdings, LLC, is a movie production company and owner of the copyright to the film Revolt (the Work).  The Appellant became aware that the Work was being made available online without its consent at certain IP addresses.  As a result, the Appellant sent warning notices to the internet subscribers associated with the accounts (the Respondents) through the notice and notice regime under the Copyright Act and subsequently obtained Norwich orders to obtain the identities of the internet subscribers based on the IP addresses where the infringement was occurring.  Following this, the Appellant served a statement of claim to the identified internet subscribers and then filed a motion for default judgement after no defences were filed.

The Federal Court dismissed the motion for default judgment on the basis that there was insufficient evidence to establish that the internet subscribers were either the direct infringers themselves, or possessed sufficient control over those who posted the Work to have authorized infringement.

On appeal, the Court accepted that the internet users that uploaded the copyrighted Work online infringed the Appellant’s exclusive right to reproduction of the Work under subsection 3(1) of the Copyright Act.  However, the Court explained that given that internet accounts can be used by more than one person, linking the IP address where copyright infringement is occurring to an internet account holder is not sufficient evidence to prove that the account holder is the individual responsible for the infringing activity.  As a result, the Court found that there was insufficient evidence to conclude that the Respondents, who were the account holders, were the internet users who uploaded the Work online.

Similarly, the Court found that there was insufficient evidence to conclude that the Respondents authorized the infringement of the Appellant’s copyright.  The Court concluded that the authorizers of the copyright infringement would be the specific internet users that uploaded the Work online and not necessarily the internet account holders.

Summary By: Victoria Di Felice