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Best evidence rule still applies to applications for Norwich orders in the Federal Court

mars 7, 2019

Law clerk affidavits attaching technical reports as exhibits insufficient to properly balance the interests of rights holders and internet users under the notice-and-notice copyright regime

As the Federal Court continues to settle outstanding questions related to the notice-and-notice regime and Norwich Orders, while a number of rights holders seek information related to the customers of internet service providers. In this case, ME2 Productions, Inc. v. Doe, TekSavvy brought an appeal of a decision rendered by a Federal Court Prothonotary sitting as a case management judge (the “CMJ”) in which the CMJ granted the application for a Norwich order, requiring TekSavvy to provide customer names and addresses to the applicant. The main issue on the appeal was whether the applicant had brought sufficient evidence – or the best evidence – to support its request for a Norwich order.   

The main evidence brought by the applicant was in the form of affidavits sworn by law clerks from the plaintiff’s lawyers’ law firm. Attached to one of those affidavits was a solemn declaration signed by an employee of a company called Maverickeye, which performs services to detect and log online sharing of content. That process and the resulting report is described by the Court:

[10]  The Plaintiffs are movie production companies that own copyright in several films. They are concerned about illegal distribution of their films, so they hired a company called Maverickeye UG (Maverickeye) to monitor the Internet for illegal sharing of their films. The Plaintiffs received a report from Maverickeye about suspected illegal downloads which included the date and time of the activity together with the Internet Protocol (IP) addresses associated with the downloads. These IP addresses were correlated to numbers that were held by several different Internet Service Providers (ISPs). The IP addresses at issue here had been allocated to TekSavvy – each ISP is allocated a bank of IP addresses, and these are available for search, so it was possible for Maverickeye to link a particular IP address with a specific ISP. 

[11]  It was not possible, however, for Maverickeye to link the particular IP address with the name of the individual customer. That information is held by the ISP and is not otherwise available for search by other parties. Pursuant to the notice and notice regime established by the Copyright Modernization Act (described more fully below), the Plaintiffs sent notices to TekSavvy alleging that its customers infringed their copyright and providing the relevant information as to the date and time of the alleged illegal activity, as well as the associated IP address. Under the regime, TekSavvy had to forward such notices to its subscribers, and to retain certain information about the subscribers and their activity.

On the appeal, TekSavvy attacked the evidence put forward by the plaintiffs, arguing that the law clerks affidavits are improper hearsay, the affidavits do not comply with the requirements of the Federal Courts Rules because they do not set out the basis for the deponents’ belief in their truth and finally the declaration from the Maverickeye employee is expert evidence which was also not in compliance with the requirements set out in the Rules.

[109]  In this case, TekSavvy says that the evidence is inadequate: the key evidence that is found in the Arheidt Declaration is hearsay which cannot be subject to cross-examination since it is simply an exhibit to the affidavits. This is exactly the type of evidence which was rejected in BMG, which remains good law. Further, it contends that the affidavits provide no basis to explain why the law clerks adopt the Arheidt Declaration or believe it to be true and that it is opinion evidence which is not properly submitted in accordance with the Rules or jurisprudence. TekSavvy argues that before the Court can grant extraordinary relief such as a Norwich order, it must demand better evidence from copyright owners.

The Court noted that this type and configuration of evidence has been routinely accepted in similar proceedings and has been accepted as a basis for the issuance of a Norwich order. The Court noted, at paragraph 103, that “[t]his is a case of first impression: there is no binding authority directly on point nor any decisions of this Court, so I must step back and assess it from first principles, guided by the decision in Rogers Communications.”

Ultimately, the Court found that the CMJ had erred is relying on the evidence put forward in this manner. Decision-making in cases such as these need to balance the interests of the rights holders against the rights of the individual internet users who may be prejudiced by disclosures under Norwich orders. 

[121]  First, the affidavits of the law clerks do not meet the requirements of Rule 81.To put it bluntly, there is absolutely no indication of the basis for the statement that the law clerks swearing the affidavits adopt the Arheidt Declaration or believe it to be true. Nor is there any explanation as to why the best evidence is not available. The fact that they work in the “copyright enforcement group” of the law firm representing the Plaintiffs may be relevant, in that they may have gained knowledge and expertise about how Maverickeye and its software function and why their reports should be viewed as accurate, but this is not explained. Nor is there any explanation as to why Mr. Arheidt did not swear an affidavit in these matters. 

[122]  Second, the key evidence in support of the granting of the Norwich order is set out in the Arheidt Declaration, but it is simply an exhibit to an affidavit. It is therefore beyond the reach of cross-examination. 

[123]  This evidence is simply not good enough. I find that before granting a Norwich order better evidence must be filed. I have noted earlier the obligation on the copyright owner to provide as accurate information as is possible in the circumstances. To this I would add that the key evidence of alleged copyright infringements must normally be set out in an affidavit, sworn either by a person with direct personal knowledge of how the evidence was gathered, or by someone who can explain why such evidence is not available and why they have reason to believe the truth of the material they are submitting.

The appeal was allowed and the Norwich order was quashed, but the plaintiffs were granted leave to apply again with better evidence in accord with the Court’s decision. 

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