Federal Court Imposes Jail Time in Copyright Infringement Case

Introduction

In a recent decision by the Federal Court (or the “Court”), Bell Media Inc. et al. v. Marshall Macciacchera dba Smoothstreams.tv et al., 2025 FC 1378 (“Macciacchera”), Chief Justice Paul Crampton (“Chief Justice”) issued an order to incarcerate two defendants for contempt of court. The two defendants had twice been found in contempt of court for disobeying an Anton Piller order. By the third hearing, the Chief Justice found that there were sufficient grounds to imprison one defendant for six months and the other for four months for their non-curable failure to comply with the Anton Piller order. Both defendants will be further incarcerated for a maximum five years less one day or until they comply with the Anton Piller order.

This case adds to the rare collection of jurisprudence from the Federal Court that involves defendants facing time in prison for issues related to copyright infringement. The Chief Justice’s analysis provides a clear example of how sentencing principles work for incarceration cases in the Federal Court. The key takeaway, however, is the Chief Justice’s obiter comments, which suggest that the Federal Court may become more willing to impose incarceration penalties.

Background

The defendants were operating an online platform that provided its subscribers with unauthorized access to a large number of movies and television shows for which the copyright was owned by various rights holders, including the plaintiffs. Consequently, on June 17, 2022, the plaintiffs sued the defendants for infringing the plaintiff’s copyright. On application of the plaintiff, the Federal Court issued an Anton Piller order with extension provisions for search, seizure and preservations of evidence and equipment, and requiring disclosure of information about the infringing services and financial assets.

In the words of the Court, the defendants “flagrantly” disobeyed the Anton Piller order. The defendants refused to assist in the search and access of their properties, including refusing to give passwords to computers and failing to authorize their Hong Kong banks to provide the requested information. As a result, the defendants were found guilty of contempt in two separate hearings ahead of this third hearing before the Chief Justice.

At the third contempt hearing, all parties agreed that incarceration would be an appropriate penalty. The only issue was the severity of the penalty.

Analysis by the Chief Justice

The Chief Justice noted that the “principal objective of the law of civil contempt is to foster compliance with court orders.” Regarding sentencing, the Chief Justice listed several guiding principles:

1. the range of penalties for similar conduct, i.e., parity;
2. the gravity of the contempt;
3. promoting general and specific deterrence;
4. ensuring denunciation and punishment;
5. the profitability of the conduct;
6. aggravating factors; and
7. mitigating factors.

The Chief Justice discussed each principle in turn.

Parity Principle: The Chief Justice noted that there were only three Federal Court cases involving copyright matters where a court gave an order for incarceration.

• In Lari v. Canadian Copyright Licensing Agency, 2007 FCA 127, the defendant was given a sentence of six months’ imprisonment plus 400 hours of community service after a third conviction of contempt of court. The Chief Justice noted that one of the acts of contempt was refusal to provide access to the premises.
• In Canadian Standards Association v. P.S. Knight Co. Ltd., 2021 FC 1346, the defendants had engaged in open defiance of the Court’s order, resulting in a fine of $100,000 and a term of imprisonment of not less than six months and then continuing for up to five years less one day. The imprisonment would end after the defendants purged their contempt and paid their fines in full.
• In Telewizja Polsat S.A. v. Radiopol Inc., 2006 FC 137, the defendant failed to appear in Court, deliberately defied the Court’s injunction, did not express remorse and failed to respond to the plaintiff’s overtures. Thus, the Court imposed a fine of $10,000 and a six-month term of imprisonment.

While not cited by the Chief Justice, there is one reported case involving a postponed sentence for incarceration due to infringement of a trademark: Trans-High Corporation v. Hightimes Smokeshop and Gifts Inc., 2015 FC 919 (“Trans-High”). In Trans-High, despite a Court order prohibiting the defendant from distributing goods with the applicant’s trademark, the defendant continued to use it. Consequently, the defendant was allowed 30 days to satisfy the Court order or be imprisoned for 14 days and remain imprisoned until the contempt was purged and the penalties paid.

The Chief Justice also examined cases that discussed sanctions for violating Anton Piller orders generally:

• In Echostar Communications Corporation v. Rodgers, 2010 ONSC 2164, the two defendants were each sentenced to four months’ imprisonment.
• In Directv Inc. v. Boudreau, 2005 CanLII 63759, the defendant was sentenced to three months’ imprisonment.
• In Warner Bros. Entertainment Inc. v. White (Beast IPTV), 2023 FC 907 (“Beast IPTV”), the defendant received a two-month sentence.
• In Sussex Group Ltd. v. Sylvester, 2002 CanLII 27188, the defendant was given a six-month sentence after failing to deliver and prepare an inventory of business records.

Based on his review of other contempt cases in both federal and provincial courts, the Chief Justice determined that the plaintiff’s proposed six-month prison sentence in Macciacchera was aligned with previous decisions.

Gravity of Contempt Principle: The Chief Justice considered both the objective and subjective gravity of the contemptuous conduct. One factor considered as objective gravity was that the defendants completely frustrated the Court’s order. When considering subjective gravity, the Chief Justice considered that the defendants had intentionally acted against the order. As a result, the defendants’ conduct fell at the high end of the gravity scale.

Deterrence Principle: The Chief Justice considered both general and specific deterrence. In terms of general deterrence, the Chief Justice held that the Court needed to ensure that the penalty of violating an Anton Piller order would be great enough to outweigh any benefits that defendants might gain from such a violation. In terms of specific deterrence, the Chief Justice held that the defendants’ brazen conduct needed to be tempered.

Denunciation and Punishment Principle: The Chief Justice recognized that the defendants’ challenge to the Court needed to be punished.

Profitability of the Conduct Principle: The Chief Justice stated that the lack of evidence prohibited him from estimating the profitability of the ongoing contempt by the defendants.

Aggravating Factors Principle: The Chief Justice recognized several acts of misconduct: prior findings of contempt, lack of remorse, untruthfulness, destruction of evidence, diversion of funds and motivation by greed.

Mitigating Factors Principle: Finally, the Chief Justice dismissed several factors raised by the defendants such as ambiguous health concerns, legal fees, acceptance of a penalty of incarceration, inability to obtain exculpatory evidence, embarrassment and prior costs orders.

Based on these considerations, the Chief Justice concluded that the defendants would serve at least six months’ imprisonment. Furthermore, pursuant to Rule 472(a) of the Federal Courts Rules, the Chief Justice held that he had the authority to impose an additional sentence of a further period of incarceration of up to five years less one day until the defendants complied with the Court order.

Moving Away From Leniency?

While Macciacchera is an unusual and interesting case due to the incarceration order, the key takeaway from the case lies in the Chief Justice’s obiter comments. The Chief Justice directly commented on the fact that the Federal Court has historically been more lenient than provincial superior courts in penalizing contemptuous conduct.

The Chief Justice discussed the case of Bell Canada v. Adwokat, 2023 FCA 106 (“Adwokat”), where the majority of the Federal Court of Appeal imposed a fine. In dissent, however, Justice Nathalie Goyette would have imposed a period of incarceration. The Chief Justice agreed with Justice Goyette’s observations that the Federal Courts were “much more lenient” than the Ontario courts, which would have likely imposed an incarceration penalty on the defendant in Adwokat. The Chief Justice further agreed with Justice Goyette’s comment that “[t]he Federal Court should not be a safe haven for persons in contempt.”

The Chief Justice also concurred with the comments by Justice Roger Lafrenière in Beast IPTV, where the Court wrote that “[i]t is important to dispel the notion that this Court, the go-to forum for intellectual property litigation, is more lenient than provincial superior courts.”

The obiter comments by the Chief Justice, as well as his decision in this case, may be a signal that the Federal Courts are becoming more willing to impose harsher punishments for contempt in intellectual property infringement matters. As the Chief Justice noted, as of yet, there are only three cases that involve incarceration in copyright disputes. This may be subject to change in the future if other Federal Court judges decide to follow the Chief Justice’s lead.

Please contact the authors or a member of the Intellectual Property Group at Aird & Berlis LLP if you have any questions or require assistance in regard to copyright infringement.