BMG Canada Inc. v. John Doe

BMG Canada Inc. v. John Doe

Motion dismissed because plaintiffs failed to meet the Norwich/Glaxo criteria: affidavits were deficient and founded on unverified hearsay, there was no reliable causal link proved between P2P pseudonyms and the IP addresses, plaintiffs did not demonstrate prima facie infringement (private copying exception, no evidence of distribution or authorization or knowledge), ISPs were not proven to be the only practical source and retrieval would be costly and unreliable given dynamic IP allocation and data age; accordingly privacy interests under PIPEDA outweighed the public interest in disclosure.

Citation
2004 FC 488
Parties
Plaintiffs: BMG Canada Inc., EMI Music Canada, Sony Music Entertainment (Canada) Inc., Universal Music Canada Inc., Warner Music Canada Ltd., BMG Music, Arista Records, Inc., Zomba Recording Corporation, EMI Music Sweden AB, Capitol Records, Inc., Chrysalis Records Limited, Virgin Records Limited, Sony Music Entertainment Inc., Sony Music Entertainment (UK) Inc., UMG Recordings, Inc., Mercury Records Limited and WEA International Inc.; Defendants: John Doe, Jane Doe and all those persons who are infringing copyright in the plaintiffs' sound recordings; Respondent (isp): Shaw Communications Inc.; Respondent (isp): Rogers Cable Communications Inc.; Respondent (isp): Bell Sympatico (Bell Canada); Respondent (isp): Telus Inc.; Respondent (isp): Vidéotron Ltée.; Intervener: Electronic Frontier Canada; Intervener: Canadian Internet Policy and Public Interest Clinic (CIPPIC)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 March 2004
Procedural Posture
Copyright Infringement; Motion for Disclosure of ISP Subscriber Identities in John Doe Proceedings / Motion for Disclosure Under Federal Court Rules (rules 233 and 238)
Outcome
Motion denied; application for disclosure of ISP subscriber identities refused
Legal Topics
John Doe Pre‑trial Disclosure, Norwich/glaxo Test for Third Party Disclosure, PIPEDA and Disclosure Exceptions, ISP Subscriber Identification, Peer‑to‑peer File Sharing
Source Language
English
Copyright Law Privacy Law Procedural Law Internet/technology Law John Doe Pre‑trial Disclosure Norwich/glaxo Test for Third Party Disclosure PIPEDA and Disclosure Exceptions ISP Subscriber Identification +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

BMG Canada Inc., EMI Music Canada, Sony Music Entertainment (Canada) Inc., Universal Music Canada Inc., Warner Music Canada Ltd., BMG Music, Arista Records, Inc., Zomba Recording Corporation, EMI Music Sweden AB, Capitol Records, Inc., Chrysalis Records Limited, Virgin Records Limited, Sony Music Entertainment Inc., Sony Music Entertainment (UK) Inc., UMG Recordings, Inc., Mercury Records Limited and WEA International Inc.

Plaintiffs

John Doe, Jane Doe and all those persons who are infringing copyright in the plaintiffs' sound recordings

Defendants

Shaw Communications Inc.

Respondent (isp)

Rogers Cable Communications Inc.

Respondent (isp)

Bell Sympatico (Bell Canada)

Respondent (isp)

Telus Inc.

Respondent (isp)

Vidéotron Ltée.

Respondent (isp)

Electronic Frontier Canada

Intervener

Canadian Internet Policy and Public Interest Clinic (CIPPIC)

Intervener

Procedural Posture

Copyright Infringement; Motion for Disclosure of ISP Subscriber Identities in John Doe Proceedings / Motion for Disclosure Under Federal Court Rules (rules 233 and 238)

Legal Issues

  1. 1 What legal test applies to compel ISPs to disclose subscriber identities in John Doe proceedings?
  2. 2 Have plaintiffs established a prima facie case and met the Norwich/Glaxo criteria to warrant disclosure?
  3. 3 How should courts balance privacy rights under PIPEDA against the public interest in disclosure and what limits should any order contain?

Ratio Decidendi

Motion dismissed because plaintiffs failed to meet the Norwich/Glaxo criteria: affidavits were deficient and founded on unverified hearsay, there was no reliable causal link proved between P2P pseudonyms and the IP addresses, plaintiffs did not demonstrate prima facie infringement (private copying exception, no evidence of distribution or authorization or knowledge), ISPs were not proven to be the only practical source and retrieval would be costly and unreliable given dynamic IP allocation and data age; accordingly privacy interests under PIPEDA outweighed the public interest in disclosure.

Court Disposition

Motion denied; application for disclosure of ISP subscriber identities refused

Orders

  • Motion denied
  • All respondent ISPs shall have their costs in this matter