FINANCIAL POST

ROGERS SEEKS TO APPEAL COURT RULING ON PIRATED CONTENT.

Rogers Communications Inc. wants the Supreme Court of Canada to reconsider a copyright ruling on pirated content that internet policy experts say could raise prices for law-abiding consumers.

The Toronto-based communications giant filed for leave to appeal a federal court decision that stipulated internet service providers must turn over subscribers’ identities for free if copyright holders suspect them of copyright infringement.

Copyright holders such as film studios often use court orders to obtain alleged offenders’ identities from internet providers, which typically charge about $100 to track down the suspect associated with the IP address at the time of downloading.

But in May, the federal court ruled internet providers could not recoup these costs because the fee could potentially make it too expensive for copyright holders to go after illegal downloaders. Instead, it suggested internet providers pass the costs along to all consumers – even those that do not infringe.

It was a win for Voltage Pictures LLC, the production company behind The Hurt Locker, which sought the identity of tens of thousands of Rogers subscribers it suspected of content infringement. It called the fees an “insurmountable economic barrier.”

The decision surprised the industry, which worried it would make it cheaper and easier for copyright trolls — copyright holders that threaten consumers with lawsuits for alleged infringement in hopes they’ll be scared enough to pay a few thousand dollars to avoid litigation.

Rogers also argued the decision goes contrary to the court’s direction that internet service providers should not bear the consequences of disputes between their users and copyright owners.

“If upheld, the decision imposes costs and burdens on (internet service providers) that are not contemplated by the legislative scheme, and that will require innocent users to bear compliance costs that should be borne by infringers,” Rogers stated in its August notice of application for leave to appeal.

This case is the first to interpret a provision of the Copyright Act introduced in January 2015 called the “notice and notice” system. It enables copyright holders to alert internet providers of suspected infringement and requires them to forward the notice to the subscriber. Providers also must retain records for six months that could identify the subscriber.

The notice and notice system did not specify whether an internet provider had to disclose a subscriber’s identity, so copyright holders relied on court orders called ‘Norwich orders’ that require innocent third parties to release information. Standard practice allows third parties, such as internet service providers, to recover costs associated with fulfilling these orders.

Rogers is asking the Supreme Court to consider the scope of the internet provider’s obligations under the notice and notice system. In particular, it wants to know whether the obligations trump common law practice that lets them recover the costs associated with tracking down a subscriber’s information.