Federal Court Dismisses Motion for Statutory Damages Under Notice-And-Notice Regime

On February 25, 2021, the Federal Court of Canada (the Court) issued its decision in TBV Productions, LLC v Doe, 2021 FC 181, dismissing a motion by TBV Productions LLC (TBV) to pursue statutory damages against SaskTel, Bell, and Xplornet (the Internet Service Providers (ISPs)) for not fulfilling their notice obligations under the “notice-and-notice” regime set out in sections 41.25 and 41.26 of the Copyright Act.

TBV notified the ISPs that some of their customers may have been infringing TBV’s copyright in the movie entitled “I Feel Pretty”.  TBV’s notice required the ISPs to notify individual subscribers of potential copyright infringement and, if infringement continued, to send notice that TBV may bring an infringement action against them.

TBV brought a motion against the ISPs, seeking disclosure of their subscribers’ identities and statutory damages against the ISPs for their alleged failure to fulfill their notice obligations.

Although the parties settled the disclosure issue, the Court was still asked to determine whether TBV could claim statutory damages against the ISPs by way of motion. In the absence of special circumstances, claims for damages are usually conducted by way of an action, which affords defendants certain procedural protections that are not available in a motion. TBV argued that its circumstances were similar to those in ME2 Productions Inc v Doe et al, 2019 FC 214 (ME2), where the plaintiff sought a disclosure order and statutory damages by way of motion. In ME2, Justice Pentney found that the interconnectedness of the disclosure and statutory damages issues made it logical to consider both issues in the same proceeding.

However, in this case, the Court found that the ISPs’ alleged failure to comply with the notice-and-notice regime was no longer connected to the issue of disclosure, as the disclosure issue had been settled by the parties. Without this connection, TBV could not rely on any special circumstances to justify pursuing its damages claim and the motion was dismissed.

Summary By: Imtiaz Karamat