Davydiuk v. Internet Archive Canada et al., (2014) 465 F.T.R. 76 (FC)

• Judge: McVeigh, J.
• Court: Federal Court (Canada)
• Case Date: Sunday April 06, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 465 F.T.R. 76 (FC);2014 FC 944

Davydiuk v. Internet Archive Can. (2014), 465 F.T.R. 76 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. OC.050

Daniel Davydiuk (plaintiff) v. Internet Archive Canada and Internet Archive (defendants)

(T-428-13; 2014 FC 944; 2014 CF 944)

Indexed As: Davydiuk v. Internet Archive Canada et al.

Federal Court

McVeigh, J.

October 6, 2014.

Summary:

A series of pornographic works broadcast over the internet were performed by Davydiuk between 2002 and 2003. The works were created and filmed by Intercan, a Montreal company. Intercan and Davydiuk entered into an agreement in 2009 to transfer all copyright in the works to Davydiuk and the works were removed from Intercan's websites. In March 2009, Davydiuk found that the works were being hosted on some archiving websites belonging to Internet Archive, a non-profit, public benefit corporation in California, United States. Davydiuk filed a statement of claim in the Federal Court, naming Internet Archive and Internet Archive Canada, a federally incorporated Canadian company, as defendants. He alleged that the defendants infringed his copyright and committed other acts prohibited under the Copyright Act, by reproducing the works on websites located on three internet domains that he submitted were owned and controlled by the defendants. Internet Archive moved for a permanent stay of the proceedings. A Prothonotary dismissed the motion. The Prothonotary found the court had jurisdiction to hear the claim, and the circumstances in this case favoured hearing the claim in Canada. Internet Archive appealed.

The Federal Court dismissed the appeal after a review of the matter on a de novo basis. There was a real and substantial connection between the action and Canada and the court had jurisdiction. Internet Archive had not demonstrated that California was clearly a more appropriate forum for the hearing of the action.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - A series of pornographic works broadcast over the internet were performed by Davydiuk between 2002 and 2003 - The works were created and filmed by Intercan, a Montreal company - Intercan and Davydiuk entered into an agreement in 2009 to transfer all copyright in the works to Davydiuk and the works were removed from Intercan's websites - In March 2009, Davydiuk found that the works were being hosted on some archiving websites belonging to Internet Archive, a non-profit, public benefit corporation in California, United States - Internet Archive owned and operated the "Wayback Machine" where pages of Intercan's websites had been taken, recreated, and could be accessed by the public - Davydiuk filed a statement of claim in the Federal Court, naming Internet Archive and Internet Archive Canada, a federally incorporated Canadian company, as defendants - He alleged that the defendants infringed his copyright and committed other acts prohibited under the Copyright Act, by reproducing the works on websites located on three internet domains that he submitted were owned and controlled by the defendants - A Prothonotary dismissed Internet Archive's motion for a permanent stay of the proceedings - Internet Archive appealed - It argued that the matter should be heard in California - The Federal Court dismissed the appeal after a review of the matter on a de novo basis - There was a real and substantial connection between the action and Canada and the court had jurisdiction - Internet Archive had not demonstrated that California was clearly a more appropriate forum for the hearing of the action - See paragraphs 15 to 50.

Conflict of Laws - Topic 603

Jurisdiction - General principles - Jurisdiction simpliciter - A series of pornographic works broadcast over the internet were performed by Davydiuk between 2002 and 2003 - The works were created and filmed by Intercan, a Montreal company - Intercan and Davydiuk entered into an agreement in 2009 to transfer all copyright in the works to Davydiuk and the works were removed from Intercan's websites - In March 2009, Davydiuk found that the works were being hosted on some archiving websites belonging to Internet Archive, a non-profit, public benefit corporation in California, United States - Internet Archive owned and operated the "Wayback Machine" where pages of Intercan's websites had been taken, recreated, and could be accessed by the public - Davydiuk filed a statement of claim in the Federal Court, naming Internet Archive and Internet Archive Canada as defendants - He alleged that the defendants infringed his copyright and committed other acts prohibited under the Copyright Act, by reproducing the works on websites located on three internet domains that he submitted were owned and controlled by the defendants - The Federal Court upheld a Prothonotary's finding that the court had jurisdiction to hear the claim - The Prothonotary, using Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (SCC) ("SOCAN"), had found that "there is evidence of not just collecting the information in Canada but making it accessible in Canada" - The court stated that "there is no requirement in SOCAN to provide evidence of a third party accessing the copyrighted material as Internet Archive appears to suggest. Daniel Davydiuk and his copyright agent were able to request the works from Wayback Machine while they were in Canada and the works were transmitted back to them in Canada. This is sufficient for this early determination" - See paragraphs 31 to 34.

Conflict of Laws - Topic 608

Jurisdiction - General principles - Intellectual property - [See both Conflict of Laws - Topic 603].

Conflict of Laws - Topic 1661

Actions - General - Forum conveniens - General - [See first Conflict of Laws - Topic 603].

Copyright - Topic 6021

Practice - Jurisdiction - General - [See both Conflict of Laws - Topic 603].

Courts - Topic 2583

Registrars and prothonotaries - Appeals from - Scope of review - The defendant moved for a permanent stay of the proceedings - It argued that the court had no jurisdiction to hear the matter and, even if the court had jurisdiction, application of the doctrine of forum non conveniens showed that the action should be heard in California - A Prothonotary dismissed the motion - The defendant appealed - The Federal Court stated that, had the Prothonotary decided to issue a stay, it would have been a final decision as the case would not proceed in Canada - So in essence, the Prothonotary's order was a decision that was vital - The court therefore heard the appeal on a de novo basis - See paragraphs 12 to 14.

Cases Noticed:

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 12].

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al., [2003] 1 S.C.R. 450; 303 N.R. 201; 2003 SCC 27, refd to. [para. 12].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, consd. [para. 19].

Van Breda et al. v. Village Resorts Ltd. et al., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, consd. [para. 26].

Homeaway.com Inc. v. Hrdlicka (2012), 423 F.T.R. 156; 2012 FC 1467, refd to. [para. 35].

Black v. Breeden et al., [2012] 1 S.C.R. 666; 429 N.R. 192; 2012 SCC 19, refd to. [para. 37].

Counsel:

James Philpott and Adam Weissman, for the plaintiff, Daniel Davydiuk;

Ren Bucholz, Brent Kettles and Aaron Pearl, for the defendants, Internet Archive Canada and Internet Archive.

Solicitors of Record:

Brauti Thorning Zibarras LLP, Toronto, Ontario, for the plaintiff, Daniel Davydiuk;

Lenczner Slaght, Toronto, Ontario, for the defendants, Internet Archive Canada and Internet Archive.

This appeal was heard on April 6, 2014, at Toronto, Ontario, before McVeigh, J., of the Federal Court, who delivered the following judgment on October 6, 2014.