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SCC Grants Leave to Consider Scope of ISP’s Obligations Under the Notice-and-Notice Regime

In May of this year, the Federal Court of Appeal held that an Internet service provider (“ISP”) can charge a fee for “the actual, reasonable and necessary costs” associated with disclosing the identifying information of an alleged copyright infringer: Voltage Pictures, LLC v John Doe, 2017 FCA 97. Our article on this case can be found here.

Briefly, the Court held that a fee of $100 per hour (plus HST) for the delivery or electronic transmission of the identifying information of an alleged infringer was not “the actual, reasonable and necessary costs” incurred by Rogers Communications Inc. (“Rogers”). There was some evidence suggesting that Rogers’ cost of disclosure was “at most” $0.50 per IP address, although the Court found that there was insufficient evidence to make a determination on this issue.

Rogers sought leave to appeal the Federal Court of Appeal decision and the Supreme Court of Canada has recently granted leave to consider the scope of an ISP’s obligations under the Notice and Notice regime. A hearing has not been scheduled. We continue to watch as the next steps in this case unfold.


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