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Developed more than 20 years ago, BitTorrent is a communication protocol for peer-to-peer file sharing, which enables users to distribute data and electronic files over the Internet in a decentralized manner. Although the protocol itself is legal, it is particularly well-suited to transferring large files such as movies, music and video games due to its capacity to upload and download files from a group of hosts instead of a single source. As a result, the protocol is often used to unlawfully share such content.
In Voltage Holdings, LLC v. Doe, 2023 FCA 194, the plaintiff detected that internet users at certain IP addresses were making their film Revolt available to others using BitTorrent software. Warning notices were sent to the subscribers through their ISP notifying them of the unlawful activity associated with their IP address. If a second instance of infringement was detected within 7 days, a second notice was sent. The plaintiff then served the subscribers with a statement claim. No defences were filed and the plaintiff sought default judgment.
The Federal Court refused to grant default judgment. Although the defendants were in default, the court determined that the plaintiff had failed to establish that the subscribers engaged in direct infringement or authorized infringement by others. The Federal Court of Appeal agreed.
The court accepted that the jurisprudence supports the shifting of the burden of proof or drawing adverse inferences in circumstances where, as here, key evidence is uniquely in the hands of the defendant. However, it did not accept that such a shift was warranted in these circumstances.
In particular, it was acknowledged by all parties that home internet accounts can be used by more than one person. The subscriber therefore cannot be assumed to be the individual responsible for any infringing activity connected to their ISP account and IP address. By simply identifying the subscriber connected to the IP address associated with the infringing activity, the plaintiff had failed to establish “direct infringement”.
To be responsible for "authorizing copyright infringement", the authorizer must hold themselves out as capable of granting one of the copyright owner’s exclusive rights. An individual who provides the means or equipment to infringe another’s copyright has not necessarily authorized the infringement. The courts generally presume that an individual who authorizes an activity does so only so far as it is in accordance with the law. However, a “sufficient degree of indifference” may allow a court to infer that the individual has indeed authorized the infringement.
In Voltage Holdings, LLC v. Doe, 2023 FCA 194, the court was not satisfied that a “subscriber’s consent to sharing access to their internet account and indifference to the purposes for which it is used” qualifies as a sufficient degree of indifference to infer that they authorized the infringement. In the words of the court, such a theory of infringement “does not fit into the law of copyright as it is currently understood”.
While the plaintiff stressed that the defendants had failed to volunteer exculpatory evidence despite multiple opportunities to do so, the court was not prepared to draw an adverse inference based on their non-responsiveness alone.
The court maintained that the plaintiff was required to make some attempt to determine the internet user responsible for the unlawful activity beyond identifying the subscriber connected to the ISP account and IP address. In this regard, the court suggested that the plaintiff take steps to compel the defendants to participate in discovery, but noted that this did not require the plaintiff to discover the defendants devices or electronic records.
Presumably the court would also consider any evidence obtained by way of an affidavit of documents or an examination for discovery. However, the court made no comment on how it would proceed if the defendants refused to participate in discovery which may be a likely result if the defendants are, in fact, responsible for the unlawful activity. Would a refusal to participate in discovery provide sufficient "evidence" to justify drawing an adverse inference and finally granting the plaintiff summary judgment?