Back to all blog posts

Posted in: Court Decision | Copyright | Intellectual Property

Oct 15, 2021

Federal Court of Appeal Affirms Use of Reverse Class Actions For Copyright Infringement Claims

By Ken Clark and Lawrence Veregin

On September 8, 2021, the Federal Court of Appeal released its decision in Salna v. Voltage Pictures, LLC, 2021 FCA 176 regarding certification of a reverse class action (i.e. where there is a class of defendants rather than plaintiffs) for pursuing copyright infringement claims. The Court overturned the earlier Federal Court decision and found that “the law must adapt to the evolving digital environment, the channels through which artistic endeavour is expressed and the means by which copyright may be infringed”.

Aird & Berlis LLP represented Voltage Pictures, a movie production company, in the appeal. Voltage Pictures sought certification of its claim as a class action against anonymous people who unlawfully distributed copies of its movies online. Voltage Pictures successfully argued that a reverse class action is a “fair, efficient and manageable method of advancing the claim” where there are multiple respondents for low-valued claims. A reverse class action is motivated by the same principles as a plaintiff class action: ensuring access to justice for low monetary claims.

The Court explained that its rules and procedures allow for efficient management of a reverse class action for copyright infringement:

  • The defendants do not all need to infringe the same work or in the same way: if needed, the Court may create subclasses of defendants.
  • Damages and statutory damages may be assessed through a court-supervised individual assessment process.
  • Any individual issues may be resolved through individual proceedings after the hearing of the class common questions.
  • A single hearing of the common issues reduces the use of judicial resources and the costs of mounting a defence through shared counsel, expert witnesses and fees.

The Court decision provides a pathway for using a reverse class action for many types of claims, including mass enforcement of copyright.

Related Blogs

Posted in: Copyright | Intellectual Property

Insights TheSpotlight
Stacked Deck — A Claim For Copyright in a Magic: The Gathering Deck By Lawrence Veregin Aug 25, 2021 An American professor has successfully obtained a U.S. copyright registration for a deck of Magic: The Gathering cards, entitled Angels and Demons. The copyright is not for the artistic design of the cards (which are designed and published by Wizards of the Coast), but instead for his sel...

Posted in: Copyright | Court Decision | Intellectual Property

Insights TheSpotlight
Planet of the APIs: U.S. Supreme Court Rules Google’s Use of Java APIs in Android Is Fair Use By Lawrence Veregin Apr 08, 2021 On April 5, 2021, the Supreme Court of the United States released its decision in Google LLC v. Oracle America, Inc., holding that Google’s use of Oracle’s Java API was fair and did not infringe copyright.

Posted in: Court Decision | Trademarks | Intellectual Property

Insights TheSpotlight
The Swiss Shield: A Trademark Registration Is a Defence to Damages Even if Later Invalidated By Lawrence Veregin and Ken Clark Dec 14, 2020 Switzerland’s historic neutrality does not extend to the use of its iconic cross. Wenger, the Swiss company behind the legendary “Swiss Army Knife”, commenced a trademark claim against Travelway, a Canadian distributor of luggage. Both companies sold luggage adorne...