The anonymity of the Internet has posed many challenges to the protection of intellectual property rights. The sheer size of the population of online users and the millions of file-sharing programs and other social media outlets that exist have left IP rights holders struggling to protect their property and goodwill in the digital era. For example, the battle between protecting copyright online while simultaneously protecting the privacy rights of online users has led to interesting debates in the courts as well as new IP strategies that are currently being explored.
Background: The 2014 battle between copyright and privacy
The delicate balancing of privacy rights versus the rights of copyright holders was discussed at length by the Canadian Federal Court in 2014 in a case involving Voltage Pictures LLC (“Voltage”). Voltage sought the names and addresses of some 2,000 subscribers of an Internet Service Provider (ISP) so that it could pursue litigation against them for the alleged unauthorized copying and distribution of Voltage’s copyrighted works. The Court was asked to consider the issue of whether persons who download copyrighted material using a file sharing program through the auspices of an ISP have a right to privacy, such that their contact information should not be revealed to the party whose copyright is being infringed.
The Court had to balance two competing rights: copyright and privacy. On the one hand, the Court determined that Voltage had established a bona fide claim and that enforcement of its copyright outweighed the privacy interests of the subscribers. On the other hand, the Court crafted an Order that would minimize the invasion of the privacy interests of Internet users. The Court’s decision struck the following balance:
- The disclosure of the subscribers’ contact information was limited to the names and addresses associated with the impugned IP addresses
- The released information would remain confidential
- The plaintiff was not permitted to disclose any of the information it obtained to the general public by making or issuing a statement to the media
New emerging strategies
Voltage recently adopted a new strategy against the alleged copyright infringement by anonymous Internet users. On April 26, 2016, Voltage filed an application in the Canadian Federal Court seeking a certification of a “reverse class action” (i.e. one plaintiff versus multiple defendants) against an unknown number of alleged uploaders of five movies using a file sharing program online. The number of possible infringers as well as their identities are unknown at this time. Voltage seeks, inter alia, a declaration from the Court that its copyright has been infringed.
Voltage’s reverse class action is a novel strategy that raises unique issues the Court will need to consider:
- Who will be the representative defendant in the class action and will the interests of all possible defendants be fairly represented?
- How will the Court address issues that are not common between all the defendants?
- Will the defendants be able to simply opt-out of the class action once they have been identified as possible class members?
As the courts continue to grapple with increasingly complex legal issues surrounding the balance between intellectual property and privacy, it is becoming clear that anonymity of online users may have its limitations. In some cases, the privacy rights of individuals will have to yield to the rights of IP holders who are vigilant in protecting their assets.
The lesson learned from the Voltage cases is that as the Internet and its users continue to become more sophisticated, companies may need to consider new and creative strategies to protect their innovations.
