T-513-18 Doc.158 - Notice of Motion

Court File No.
T-513-18
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
31-May-2021
VOLTAGE HOLDINGS, LLC
Plaintiff
158
and
DOE #1 ET AL.
(see Schedule 1 for list of Defendants)
Defendants
NOTICE OF MOTION
(Motion for Default Judgment)
TAKE NOTICE THAT the Plaintiff will make an ex parte motion to the Court for default
judgement under Rule 210 of the Federal Courts Rules at a place and time to be decided by the
case management judge.
THE MOTION IS FOR
(a) an order granting default judgment against each of the Default Defendants, as
defined herein and set out in Schedule 2;
(b) an order allowing substitutional service or dispensing with service of the Statement
of Claim pursuant to Rule 136 or validating service pursuant to Rule 147 of the
Federal Courts Rules against each Default Defendant, as applicable in the case of
each Default Defendant;
(c) statutory damages for copyright infringement pursuant to s. 38.1(a) or 38.1(b) of

the Copyright Act, as the case may be, against each Default Defendant, in the
amount set out in Schedule 2;
(d) pre-judgment and post-judgment interest in accordance with sections 36 and 37 of

the Federal Courts Act;
2
(e) leave to amend the Statement of Claim to name each Default Defendant as a
Defendant in this proceeding;
(f) costs of this motion and action as particularized for each Default Defendant; and
(g) such further and other relief as is requested by the Plaintiff and that this this
Honourable Court finds just.
THE GROUNDS FOR THE MOTION ARE
Background
1. The Plaintiff, Voltage Holdings, LLC, is a movie production company that produces
cinematographic works, including the motion picture Revolt, the title relevant to this
proceeding (the “Work”).
2. This action was brought by Statement of Claim dated March 15, 2018 by POW Nevada,
LLC against the Defendants for copyright infringement of the Work. Specifically, each
Default Defendant took part in BitTorrent-based “sharing” of the Work, which is, inter alia,
unlawful copying and distribution of the Work via the BitTorrent network in violation of ss.
3(1)(f), 27(1) and 27(2) of the Copyright Act.
3. Originally anonymous, the Default Defendants were identified by their internet service
providers in accordance with Court Orders dated December 3, 2018 (the “Disclosure
Orders”). The name and address of each Default Defendant was also disclosed to POW
Nevada, LLC and thereafter the Plaintiff in accordance with the Disclosure Orders. The
Default Defendants were identified as being the subscriber who was responsible for the
IP address detected infringing copyright.
4. This matter also is subject to a confidentiality order protecting the identities of the Default
Defendants unless otherwise varied by this Court.
5. On September 24, 2018, the Court issued an order (the “Service Order”), which permitted
service of the Statement of Claim (except for default judgement) via registered mail when:
(a) the Defendant, or an adult member of the Defendant’s household, signed for the
package; or
3
(b) in the event the package remains unclaimed at the post office and is thereafter
returned to the Plaintiff, the Plaintiff mails a copy of the Statement of Claim via
regular mail with a copy of the Service Order.
6. The Service Order further ordered that no default proceeding may be commenced against
any Defendant without personal service of the Statement of Claim having been effected
in accordance with Rule 128(1)(b) and proof of service thereof filed, unless otherwise
ordered by this Court.
7. The Service Order extended the time for filing proof of service of the Statement of Claim
to such time as the Plaintiff sought consent judgment, default judgment or discontinuance
of the action, or alternatively, 30 days prior to the trial in respect of the Defendant.
8. The Plaintiff is the owner of the copyright in the Work. POW Nevada, LLC was the original
owner of copyright in the work, and it assigned its rights to the copyright in the Work to
Voltage Holdings, LLC on May 1, 2019.
9. On October 30, 2019, the Statement of Claim was amended to name Voltage Holdings,
LLC as the Plaintiff. The Court granted the Plaintiff’s motion to amend the Statement of
Claim on October 24, 2019.
The Plaintiff Served the Default Defendants and the Default Defendants Have Not Defended
10. The Defendants named in Schedule 2 (the “Default Defendants”) have not defended this
action by serving and filing a Statement of Defence once provided with the Statement of
Claim in this matter.
11. The Plaintiff has served each Default Defendant in accordance with the Federal Courts
Rules and the Service Order, or alternatively, the Statement of Claim came to the notice
of the Default Defendant and it is appropriate to order substitutional service or validate
service. The Plaintiff claims that its service of the Statement of Claim on the Default
Defendants is effective on the dates set out in Schedule 2.
12. The Default Defendants have not served or filed a Statement of Defence within the time
period prescribed by Rule 204 of the Federal Courts Rules.
13. The Default Defendants have not served or filed a Statement of Defence to date.
4
Summary of Defendants’ Infringement
14. This action is about online infringement of copyright by unknown persons on the internet.
The Plaintiff and POW Nevada LLC are all part of the Voltage group of studios. They are
filmmakers. Their films are frequently pirated online. In order to stop such piracy, they
have hired a service company called MaverickEye to search the internet for online piracy,
in particular the type that occurs using the BitTorrent protocol.
15. MaverickEye detects persons who are broadcasting online that they are “giving away” the
Work, it does not detect illegal downloads of the Work, per se. By downloading a portion
of the Work from a Default Defendant, it confirms that the work being broadcast is in fact
the Work. It logs this activity and sends up to two warning notices to these pirates
depending on specific circumstances. In this matter, each Default Defendant has been
provided two warning notices prior to being added as a defendant to this Action.
16. More precisely, for each Default Defendant:
(a) the MaverickEye forensic software (“MaverikMonitor”) detected a Default

Defendant on the BitTorrent network:
i. advertising that he or she was offering copies of the Work for download;
and
ii. distributing a copy of the Work to the forensic software in response to a

request pursuant to its advertisement.
(b) the forensic software confirmed that the downloaded copy is indeed a copy of the
Work;
(c) the Plaintiff, via counsel, sent a warning notice to the Default Defendant’s ISP to
forward to the Default Defendant in accordance with the notice and notice
provisions of the Copyright Act, s. 41.25. This warning notice offered to not
pursue the case further if the infringement ceased within a seven day time period;
(d) the Default Defendant’s ISP confirmed that it forwarded the notice to the Default
Defendant;
5
(e) the forensic software detected a second infringement at least seven days after
the first infringement from the Default Defendant’s internet account (per (a) and
(b) above);
(f) counsel for the Plaintiff, on behalf of the Plaintiff, sent a second notice to the
Default Defendant’s ISP to forward to the Default Defendant, advising of the
further detected infringement of the Work and that the Plaintiff reserved all of its
rights; and
(g) the Default Defendant’s ISP confirmed that it forwarded the second notice to the
Default Defendant.
17. The Default Defendants’ unauthorized distribution of copies of the Work on the BitTorrent
network is a violation of the Plaintiff’s exclusive right under s. 3(1)(f) of the Copyright Act
to communicate the Work to the public by telecommunication, which is an infringement of
its copyright under ss. 27(1) and 27(2).
18. The Default Defendants’ infringements of the Work have caused significant harm to the
Plaintiff. The Plaintiff and its distributors have expended significant resources in producing
and distributing the Work, which each Default Defendant has blatantly and unlawfully
offered to distribute, and in fact has distributed, over the internet without providing any
compensation to the Plaintiff. The Plaintiff generates revenue through the lawful
distribution and sales of its motion pictures, including the Work. The Default Defendants’
infringements have allowed consumers to receive and view the Work without providing
payment to the Plaintiff.
The Plaintiff’s Sought Relief
19. As a result of the Default Defendants’ failure to serve and file a Statement of Defence or
otherwise participate in the action, the Default Defendants have denied the Plaintiff the
opportunity to discover the Default Defendants or otherwise learn the true scope of their
infringements. As a result, the Plaintiff does not have knowledge of:
(a) any person other than the Default Defendants using their respective internet
accounts;
(b) the Default Defendants taking any action to cease the infringement;
6
(c) whether the infringement from the Default Defendants’ internet account has
ceased;
(d) what hardship a damages award may have on the Default Defendants; and
(e) whether the infringements were done for a private purpose or not.
20. To the extent any of the Plaintiff’s attempts at service of the Default Defendants are not
considered personal service under the Federal Courts Rules or the Service Order, the
Plaintiff seeks an order for substitutional service or validation of service of the Statement
of Claim under Rule 136 and Rule 147 of the Federal Courts Rules.
21. The Plaintiff seeks default judgment against the Default Defendants. The Plaintiff elects
to seek statutory damages pursuant to s. 38.1 of the Copyright Act against each Default
Defendant, in the amounts indicated in Schedule 2. The sought statutory damages
awards consider the known extent of each Default Defendant’s infringements and the
factors in s. 38.1(5) of the Copyright Act.
22. The Plaintiff seeks leave to amend the Statement of Claim to name each Default
Defendant as a Defendant in this action. Each Default Defendant is currently not named
as a Defendant, pursuant to the Confidentiality Order of the Court dated July 5, 2018. The
Plaintiff seeks to name the Default Defendants as Defendants in the action upon receiving
an Order against the Default Defendants to aid in enforcement of the Order.
23. Rules 3, 53, 55, 56, 81, 128, 136, 147, 204, 210 of the Federal Courts Rules.
24. Section 2.4(1.1), 3(1)(f), 27(1), 27(2), 34, 34.1, 38.1, 41.25, 41.26 of the Copyright Act.
25. Such further and other grounds as counsel may advise and this Honourable Court may
permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
motion:
(a) the affidavit of Benjamin Perino affirmed May 28, 2021 and the exhibits attached
thereto;
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(b) the affidavit of Marnie MacDonald affirmed May 31, 2021 and the exhibits attached
thereto; and
(c) such further and other evidence as counsel may advise and this Honourable Court
may permit.
May 31, 2021 AIRD & BERLIS LLP

Barristers and Solicitors
Brookfield Place
Suite 1800, Box 754
181 Bay Street
Toronto, ON M5J 2T9
Kenneth R. Clark
Lawrence Veregin
Tel: 416-863-1500
Fax: 416-863-1515
Solicitors for the Plaintiff
TO: The Administrator

Federal Court
180 Queen Street West
Suite 200
Toronto, Ontario
M5V 3L6
SCHEDULE 1 – LIST OF DEFENDANTS AND SPECIFIC INFORMATION REGARDING
INFRINGEMENTS OF SUCH DEFENDANTS
Name & Address IP Address 1st Notice Date & Time 2nd Notice Date &
(UTC) of Infringement Time (UTC) of
Infringement
1. Doe #1, name and address unknown 156.34.2.57 2017-09-23 12:14:22 2017-10-03 15:41:47
Infringement
Infringement
53. Doe #53 name and address unknown 184.148.213.254 2017-12-17 07:22:22 2017-12-26 04:41:57
58. Doe #58 name and address unknown 70.30.252.247 2017-12-20 23:08:22 2017-12-31 02:49:11
Infringement
Schedule 2 — List of Default Defendants
Doe # Claimed Effective Date of Service Sought Statutory Damages Award

Doe #3 2019-03-19 $4,750
Doe #4 2019-03-20 $3,750
Doe #8 2019-03-19 $5,000
Doe #15 2019-05-05 $2,250
Doe #18 2019-03-22 $4,750
Doe #20 2019-03-19 $4,750
Doe #23 2019-04-08 $5,000
Doe #24 2019-03-18 $3,250
Doe #26 2019-03-18 $5,000
Doe #30 2019-03-18 $5,000
Doe #33 2019-03-28 $4,250
Doe #36 2019-03-19 $3,250
Doe #37 2019-03-19 $4,750
Doe #42 2019-03-21 $3,250
Doe #48 2019-03-19 $4,250
Doe #49 2019-03-19 $4,750
Doe #50 2019-03-23 $4,750
Doe #51 2019-06-14 $5,000
Doe #58 2019-03-22 $2,250
Doe #62 2019-03-19 $4,250
Doe #63 2019-03-20 $3,750
Doe #66 2019-03-18 $4,250
Doe #84 2019-03-18 $4,750
Doe #86 2019-03-15 $4,250
Doe #93 2019-03-18 $4,750
Doe #94 2019-03-15 $3,250
Doe #97 2019-03-16 $4,250
Doe #103 2019-03-15 $4,750
Doe #108 2019-03-15 $4,750
Doe #109 2019-03-19 $5,000

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Court File No.

THE MOTION IS FOR

(c) statutory damages for copyright infringement pursuant to s. 38.1(a) or 38.1(b) of

(d) pre-judgment and post-judgment interest in accordance with sections 36 and 37 of

THE GROUNDS FOR THE MOTION ARE

Summary of Defendants’ Infringement

16. More precisely, for each Default Defendant:

(a) the MaverickEye forensic software (“MaverikMonitor”) detected a Default

ii. distributing a copy of the Work to the forensic software in response to a

The Plaintiff’s Sought Relief

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

May 31, 2021 AIRD & BERLIS LLP

Solicitors for the Plaintiff

TO: The Administrator

Doe # Claimed Effective Date of Service Sought Statutory Damages Award

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