File sharing lawsuits involving the movie the Hurt Locker have been big news in the United States for months as tens of thousands of lawsuits have been filed. It now appears that the lawsuits are coming to Canada as the Federal Court of Canada has paved the way for the identification of subscribers at Bell Canada, Cogeco, and Videotron who are alleged to have copied the movie. Late last month the court ordered the three ISPs to disclose the names and addresses of subscribers linked to IP addresses alleged to have copied the movie. The ISPs were given two weeks to respond and are entitled to be reimbursed for their expenses. In reaching its decision, the court cited the BMG Canada v. Doe case, the last major Canadian case involving peer-to-peer file sharing lawsuits. That case opened the door to further lawsuits, though it established some privacy safeguards. In this instance, the court cited PIPEDA as evidence that the personal information can be disclosed as well as federal court rules for the legitimacy of the claim and the necessity of acquiring the information for the lawsuit to proceed. There is no indication that the ISPs challenged the order or that there was an opportunity for a public interest intervention as was the case in the earlier CRIA lawsuits.
It is worth noting that the industry was specifically asked about the prospect of Hurt Locker lawsuits coming to Canada earlier this year. At the Bill C-32 hearing, NDP MP Charlie Angus had the following exchange with movie industry representatives:
Angus: The issue of safe harbours comes up again and again. I’m trying to get a sense of where we would want to have our legislation come down, because the issue of enabling massive copyright infringement is something we all have a stake in stopping. There is concern about sweeping up all kinds of people in the wake. In the U.S. we saw 5,000 John Doe lawsuits on The Hurt Locker. That was followed by 20,000 lawsuits for five films, followed by 30,000 lawsuits. This is being brought by the U.S. copyright group. In their John Doe lawsuits, basically they track anybody and they go after the ISPs. Would you support provisions like that here in Canada?
Ted East: We’re not interested in sweeping up the John Does. We’re looking for legislation that basically stops online piracy and illegal file sharing, which requires changes to the bill that exists. Whatever laws we have here are going to be different from those in the United States. As Patrick referred to earlier, we need massive education, because a significant portion of the population in Canada, particularly younger people, have grown up in an environment where piracy seems to be okay, where it has no consequences. We have notice and notice, but everybody that they know is doing it, so changes have to be made.
The prospect of thousands of Canadian peer-to-peer file sharing lawsuits – with potential liability of tens of thousands dollars per person for a single movie – highlights why the government was right in Bill C-32 to reform the statutory damages provision to distinguish between commercial and non-commercial infringement. Non-commercial infringement was capped under the bill at $5000 for all infringements, though it can go far lower. This case confirms that mass lawsuits with the threat of thousands in liability is a real possibility in Canada and why changes to the law are needed.