Canadians who are downloading movies illegally are at risk

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Canadians who are downloading movies illegally could be fined with an amount than the presumed $5,000 statutory limit.

James Zibarras, the managing partner of Brauti Thorning Zibarras LLP and the counsel for Voltage Pictures, says many Canadians have been misguided into thinking that they won’t have to pay any more than $5,000 if they’re taken to court for illegally downloading movies.

Zibarras explain that plaintiffs in piracy cases can opt for statutory damages or actual damages. The former are awarded automatically once it’s been proven in court the defendant actually did download the movie. The latter, actual damages, take into account how much money the production company may have lost due to the downloading and subsequent distribution.

He said: “And this is the thing, the people that Voltage goes after… technically aren’t downloaders. What Voltage goes after is people that make their product available for upload.”

“So if you merely downloaded a movie and no one else had access to that movie, well, you wouldn’t be part of the group that’s being legally pursued right now.”

Voltage Pictures is currently involved in a lengthy court battle with Chatham, Ontario-based ISP Teksavvy to obtain the names of 1,700 IP addresses associated with people who, they say, downloaded and distributed their movies, including The Hurt Locker.

A federal court ruled on March 18, Voltage Pictures would have to pay $22,000 to get those names far less than the nearly $350,000 that Teksavvy wanted. Teksavvy appealed that decision arguing the court didn’t take into account all the necessary costs.  Voltage Pictures is also appealing the order, arguing their legal costs should be paid.

At the moment it is not clear how long the appeal might take estimates are around six months but when that’s done, Zibarras said he expects his clients will want to go ahead with getting the names and seeking damages. And Teksavvy has said they’ll comply with the court order, according to their counsel Nicholas McHaffie, a partner at Stikeman Elliot.

New regulations regarding illegal downloading went into effect on 2 Jan. They codified that ISPs had to send what’s called a “notice-and-notice” to people connected with an IP address accused of illegal downloading. That regulation also capped statutory damages at $5,000.

A 2014 court ruling from the Teksavvy v. Voltage Pictures case warned that copyright trolling going after pirates as a means of making money might not be financially viable in Canada.

“Damages against individual subscribers even on a generous consideration of the Copyright Act damage provisions may be miniscule compared to the cost, time and effort in pursuing a claim against the subscriber.”

Howard Knopf, a copyright lawyer with Ottawa law firm Macera & Jarzyna, said trying to recoup actual damages from each of the 1,700 defendants is “extremely far-fetched.”

“If you download something and it gets shared through Bit torrent technology with 1,700 of your closest friends, it’s very unlikely that a court would say you’ve engaged in 1,700 infringements, it’s all one work,” he said.