Supreme Court Considers an ISP’s Right to Costs in Norwich Orders for Copyright Infringement

Peter Neufeld, B. Soc. Sc., J.D.Appeals, Appellate Advocacy, Civil Litigation, Commercial, Copyright Infringement, Intellectual Property, Norwich Order0 Comments

Norwich Orders have become a common tool to detect wrongdoers hiding behind the elusive veil of the internet. Whether the matter is with respect to defamation, intellectual property infringement, or fraud, the equitable remedy of pre-action discovery to compel Internet Service Providers (“ISPs”) to disclose a wrongdoer’s identity can help claimants determine their causes of action before they commence litigation. A question that has been raised, however, is who bears the costs of the Norwich Order? Is it the claimant seeking the Norwich Order or the ISP subject to the equitable remedy? To complicate the matter further, how does this interact with an ISP’s obligations under the “notice and notice” regime pursuant to Canada’s Copyright Act? By way of background, ss. 41.25 and 41.26 of the Copyright Act govern the statutory “notice and notice” regime for alerting alleged copyright infringers in Canada. These sections under the Copyright Act state that … Read More

Shifting The Status of Interlocutory Injunctions: Google v. Equustek Solutions

Janice Perri, B.A. (Summa Cum Laude)Business Litigation, Civil Litigation, Cross-Border Litigation, eCommerce | Online Retail, Injunction & Specific Performance, Internet | Technology, Jurisdictional Challenges, Mareva Injunction, Norwich Order, Passing Off, Technology and Internet, Trademark Infringement0 Comments

The very interconnectedness of the Internet that drives business forward through marketing and access to broader consumer bases may result in loses that currently are not easily remedied. However, jurisprudential shifts are occurring to bridge gaps in the common law that are prevalent in the new age of technology. Google v. Equustek Solutions is a recent decision that potentially expands the scope of interlocutory injunctions in order to ensure that trademark passing-off does not continue to be facilitated, even if unintentionally, by a non-party. Equustek was entitled to an interlocutory injunction to enjoin Google from displaying Datalink’s websites on any of its search results worldwide, and despite Google’s appeal, the decision was upheld by the Supreme Court of Canada in a 7-2 decision. Justice Abella, writing for the majority, emphasized the importance of deference and discretion with regards to interlocutory injunctions, which is highly context-driven to ensure just and equitable outcomes (para 22). The Court found the three-part test in RJR – MacDonald … Read More

Rogers Denied Costs of Complying with Copyright Infringement Norwich Order

Robert Kalanda, B.A. (Hons.), J.D.Brand Protection, Commercial, Copyright Infringement, Counterfeit Goods, Cyber Security, eCommerce | Online Retail, Injunction & Specific Performance, Intellectual Property, Internet | Technology, Norwich Order, Technology and Internet0 Comments

In the recent decision of Voltage Pictures, LLC v. John Doe, 2017 FCA 97, the Federal Court of Appeal reversed the lower court and denied Rogers its costs of complying with a disclosure order (commonly called a Norwich Order) requiring them to disclose the names and details associated with IP addresses which the plaintiff alleges have infringed its copyrights. At the Federal Court, Rogers was prepared to provide the information, provided they were paid their costs of doing, as is customary for Norwich Orders from non-parties. While on an individual basis the costs may not have been unreasonable, the plaintiff’s concern was that they were pursuing thousands of individual infringers, which would make the cumulative costs of seeking these productions prohibitively expensive. The Federal Court held that the plaintiff did have to provide the amount demanded by Rogers. On appeal, the Federal Court reviewed the relatively new provisions under the Copyright Act which the plaintiff relied on to … Read More