BMG Canada Inc. v. John Doe

Copyright -- Infringement -- Internet users allegedly infringing appellants' copyright by downloading copyrighted songs onto home computers, providing access thereto thereby reproducing, distributing songs to other Internet users -- Appellants unable to determine name, address, telephone number of Internet users in question, brought motion to identify said individuals -- Motion dismissed by Federal Court -- Court justified in declining to order disclosure of user's identity where plaintiffs failed to limit acquisition of information to copyright infringement issues -- Conclusions as to what would constitute infringement of copyright should not be made in preliminary stages of action.

Privacy -- Appellants, music producers, concerned about copyright infringement in musical works resulting in loss of millions of dollars in sales due to unauthorized downloading of files -- Internet service providers (ISPs) citing privacy concerns in refusing to provide names of Internet users downloading files of recording industry, without court order -- Whether identity of persons alleged to infringe musical copyright can be revealed despite fact right to privacy may be violated--Public interest in favour of disclosure must outweigh legitimate privacy concerns of person sought to be identified if disclosure order made -- Under Personal Information Protection and Electronic Documents Act, ISPs not entitled to "voluntarily" disclose personal information such as identities requested except with customer's consent, pursuant to court order -- Privacy concerns must yield to public concerns for protection of intellectual property rights where infringement threatens to erode those rights.

Practice -- Discovery -- Production of Documents -- Appellants seeking order under Federal Court Rules, 1998, rr. 233, 238 to compel Internet service providers to disclose names of customers who used 29 distinct Internet locations to carry out activities allegedly infringing copyright -- Respondents refusing to provide information voluntarily -- R. 233, which presupposes existence of documents, not applicable since information sought by appellants not presently in readable format -- Appellants' affidavit material deficient as not complying with r. 81 -- Much of evidence submitted by appellants hearsay evidence -- R. 238 broad enough to permit discovery herein -- Equitable bill of discovery, form of pre-action discovery, could also be invoked -- Proper test whether plaintiff has bona fide claim against proposed defendant -- Improper to require prima facie case at stage of present proceeding -- Should also be clear evidence information cannot be obtained from another source.

as we can see copyright infringement when happening through internet has more than two sides and the third party is ISPs and this complicates the process through which copyright owners to pursue their right.


ref:
http://reports.fja.gc.ca/eng/2005/2005fca193.html