[2016] 4 F.C.R. D-10
Copyright
Motion by plaintiffs for interlocutory injunction primarily to restrain defendants from: communicating works for which copyright owned by plaintiffs; manufacturing, importing etc. pre-loaded set-top boxes used to receive plaintiffs’ subscription programming signal after signal decoded without plaintiffs’ authorization; authorizing anyone to initiate acts of infringement of plaintiffs’ rights to communicate own programs to public — Plaintiffs Bell Media Inc., Rogers Media Inc., Groupe TVA Inc. well-known Canadian broadcasters owning, operating number of television stations throughout Canada broadcasting variety of television programs for which owning Canadian rights; plaintiffs Bell Canada, Bell Expressvu Limited Partnership, Rogers Communications Canada Inc. and Vidéotron s.e.n.c. (Distribution plaintiffs) broadcast distribution undertakings which receive broadcasts from number of television stations, retransmitting them to subscribers by various means of telecommunication — Defendants individuals, businesses selling set-top boxes, electronic devices connected to any standard television set to provide additional functionalities thereto on which set of applications previously installed, configured — Bell plaintiffs, Vidéotron, Rogers becoming aware that pre-loaded set-top boxes emerging trend, beginning investigation thereof — Investigation showing that devices sold by defendants could be used to access protected content produced or retransmitted by plaintiffs using online streaming websites; identifying three types of pre-installed applications which allegedly could be used to access copyrighted content — Plaintiffs submitting in particular that serious issue to be tried herein since making out strong prima facie case for copyright infringement by defendants as understood by Copyright Act, R.S.C., 1985, c. C-42, s. 27 (Act); whereas defendants disagreeing that serious issue to be tried in present matter — Whether interlocutory injunction should be issued — Plaintiffs demonstrating several serious issues to be tried in present case — Act, ss. 2.4, 3. 21 giving plaintiffs exclusive rights to communicate programs to public by telecommunication via television broadcast — Devices marketed, sold, programmed by defendants enabling consumers to obtain unauthorized access to content for which plaintiffs owning copyright; defendants deliberately encouraging consumers, potential clients to circumvent authorized ways of accessing content; also engaging in acts relating to content of infringed communications — Plaintiffs’ argument that defendants inducing, authorizing consumers to infringe copyright constituting additional serious issue to be tried also accepted; inducement issue to be determined at trial, not at interlocutory stage — Plaintiffs also making strong prima facie case of other issues such as defendants sanctioning, encouraging accessing copyrighted content, that devices sold by defendants used to access content potentially contravening Radiocommunications Act, R.S.C., 1985, c. R-2, s. 9(1)(c) — While allegations of copyright infringement demanding special consideration, plaintiffs not relieved from burden of establishing would suffer irreparable harm not compensable with damages — Plaintiffs in present matter establishing would suffer irreparable harm if injunction not granted — Market for pre-loaded set-top boxes rapidly growing in way not quantifiable at present moment — Loss of actual, potential customers resulting from cancellations of subscriptions to distribution service such as those Distribution plaintiffs offering constituting irreparable harm — Regarding balance of convenience, given prima facie copyright infringement case made out by plaintiffs, balance of convenience favouring plaintiffs; defendants’ businesses not unduly suffering from being restricted to selling, advertising only legal, non-copyright-infringing applications until Court’s decision on merits — Therefore, plaintiffs meeting each part of three-prong test for interlocutory injunction — Motion granted.
Bell Canada v. 1326030 Ontario Inc. dba iTVBox.net (T-759-16, 2016 FC 612, Tremblay-Lamer J., order dated June 1, 2016, 18 pp.)