Court File No.: T-2058-12 FEDERAL COURT BETWEEN: VOLTAGE PICTURES LLC PLAINTIFF/MOVING PARTY - and - JOHN DOE and JANE DOE DEFENDANTS - and - TEKSAVVY SOLUTIONS INC. RESPONDING PARTY - and – SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC INTERVENER MOTION RECORD OF THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICYAND PUBLIC INTEREST CLINIC (Motion for a written examination of a non-party under rule 238) Volume 4 of 4: Book of Authorities, Part 2 Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC) University of Ottawa, Faculty of Law, Common Law Section 57 Louis Pasteur Street Ottawa, ON, K1N 6N5 David Fewer Tel: (613) 562-5800 ext. 2558 Fax: (613) 562-5417 TO: THE ADMINISTRATOR Federal Court of Canada AND TO: VOLTAGE PICTURES LLC P. James Zibarras BRAUTI THORNING ZIBARRAS LLP 151 Yonge Street, Suite 1800 Toronto, ON M5C 2W7 Tel: (416) 362-4567 Fax: (416) 362-8410 AND TO: TEKSAVVY SOLUTIONS INC. Nicholas McHaffie Stikeman Elliot LLP Suite 1600, 50 O’Connor Street Ottawa, ON K1P 6L2 Tel: (613) 566-0546 Fax: (613) 230-8877 Table of Contents TAB TITLE PAGE VOLUME 1 1 Affidavits And Transcripts 2 A Affidavit of Alexander M Cooke, dated 27 February 2013 2 B Affidavit of Timothy Lethbridge, dated 27 February 2013 59 Transcript of the cross-examination of Barry Logan on his C 71 affidavit of 7 December 2012, dated 5 June 2013 Exhibit 1: First nine pages of printed material from Canipre D 158 Website. (Page 8 identified as cached copy) Exhibit 2: Bundle of Documents, consisting of Media E 167 Coverage of Canipre VOLUME 2 2 Memorandum of Fact and Law 168 3 Appendix A: Statutes and Regulations Copyright Act, R.S.C., 1985, c. C-42 Federal Court Rules, SOR 98/106 Personal Information Protection and Electronic Documents Act, S.C. 2000 VOLUME 3 4 Appendix B: Book of Authorities 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, [2013] OJ A No 1362 (QL) A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 SCR B 567 C BMG Canada Inc. v. Doe, 2005 FCA 193, [2005], 4 RCF 81 D Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 502 Home Office v. Harman, [1983] 1 AC 280 (UK HL) [1982] 1 All E ER 532 Ingenuity 13 LLC v. John Doe, Case No. 2:12-cv-8333-ODW, 2013 F WL 1898633 (JCx) (CD Cal 2013) G Jones v. Tsige, 2012 ONCA 32, [2012] OJ No 148 H Juman v. Doucette, 2008 SCC 8, 290 DLR (4th) 193 Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 72 Cal Rptr 3d 231 I (Cal. App. 6 Dist 2008) J M.(A.) v. Ryan, [1997] 1 S.C.R. 157, [1997] SCJ No 13 K R. v. O’Connor, [1995] 4 S.C.R. 411, [1995] SCJ No 98 VOLUME 4 L R. v. Spencer, 2011 SKCA 144, [2011] SJ No 729 M R. v. Trapp, 2011 SKCA 143, [2011] SJ No 728 N R. v. Ward, 2012 ONCA 660, [2012] OJ No 4587 Recording Industry Association of New Zealand Inc. v. O Enforcement Number: Telecom NZ 2592, [2013] NZCOP 2 Rugby Football Union v. Consolidated Information Services Ltd., P (formerly Viagogo Ltd) (in liquidation), [2012] UKSC 55, [2013] 1 All ER 928 Safety Point Products, LLC et al. v. Does 1-14, Does 15-96, Does Q 97-177, & Does 178-197, Case Nos. 1:12-CV-2812, 1:12-CV- 2820; 1:12-CV-2831; 1:12-CV-2894 (ND Ohio 2013) Tattered Cover, Inc. v. The City of Thornton, 44 P.3d 1044, (Colo R Sup Ct, en banc, 2002), 30 Media L Rep 1656 S Voltage v. Doe, 2013 FC 112 T Voltage Pictures LLC v. Jane Doe and John Doe, 2011 FC 1024 Voltage Pictures, LLC, v. Does 1-198, Does 1-12, Does 1-34, Does U 1-371, (6:13-cv-290-AA, 2:13-292-AA, 1:13-293-AA, 3:13-295- AA) (D Oregon 2013) V Warman v. Fournier, 2012 FC 803, [2012] FCJ No 851 W Warman v. Fournier et al., 210 ONSC 2126, [2010] OJ No 1846. ACADEMIC J. Cohen, “A Right to Read Anonymously: A Closer Look at X “Copyright Management” in Cyberspace”, (1996) 28 Conn. L. Rev. 981 S. Balganesh, “The Uneasy Case Against Copyright Trolls” (2013) Y 86 S. CAL. L. REV. (forthcoming) THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 144 Date: 20111125 Between: Docket: 1862-CR Matthew David Spencer Appellant - and - 2011 SKCA 144 (CanLII) Her Majesty the Queen Respondent Between: Docket: 1857-CR Her Majesty the Queen Appellant - and - Matthew David Spencer Respondent Coram: Cameron, Ottenbreit & Caldwell JJ.A. Counsel: Ronald Piché for Mr. Spencer Anthony B. Gerein for the Crown Appeal: From: QBJ 21/08, J.C. of Saskatoon Heard: January 27, 2011 Disposition: Dismissed re 1862-CR Allowed re 1857-CR Written Reasons: November 25, 2011 By: The Honourable Mr. Justice Caldwell Concurring Reasons: The Honourable Mr. Justice Cameron Concurring Reasons: The Honourable Mr. Justice Ottenbreit 2011 SKCA 144 (CanLII) Page 1 Caldwell J.A. I. Introduction [1] Matthew David Spencer was charged in an indictment which read: MATTHEW DAVID SPENCER, of the City of Saskatoon, in the Province of Saskatchewan, stands charged that between the 31st day of August, A.D. 2007 and the 20th day of September, A.D. 2007 at or near Saskatoon in the Province of Saskatchewan did: 1) have in his possession child pornography to wit: images of children under the age of 18 engaged in explicit sexual activity, contrary to 2011 SKCA 144 (CanLII) Section 163.1(4) of the Criminal Code. 2) make available child pornography, when he did make images of children under the age of 18 engaged in explicit sexual activity available to other persons through the Internet, contrary to Section 163.1(3) of the Criminal Code. [2] Mr. Spencer appealed from his conviction on the first count of the indictment and the Crown appealed from Mr. Spencer’s acquittal on the second count of the indictment. [3] Following a brief recitation of the facts, I will address each appeal in turn. In sum, I would dismiss Mr. Spencer’s appeal from his conviction on the count of possession of child pornography and allow the Crown’s appeal from Mr. Spencer’s acquittal on the count of making available child pornography. II. Background Facts [4] Like the offender in R. v. Trapp, 2011 SKCA 143 (released concurrently with these reasons), Mr. Spencer obtained a number of computer files containing child pornography, both pictures and video, from others over the internet through his use of file-sharing software. Mr. Spencer used the Page 2 file-sharing software known as “LimeWire”. He retained the files he had downloaded in a “shared” folder on his personal computer and others were able to view and download his collection of child pornography using the same or similar file-sharing software. [5] It is important to understand how file-sharing programs like LimeWire function. A file-sharing program can search the shared folders of all of the computers which are running the same or a similar program and which happen 2011 SKCA 144 (CanLII) to be connected to the internet at the time of the search. The shared folder(s) on each of these node computers serves as a separate repository of files which other users can access using file-sharing software and from which other users may view and download files of their choosing. A file-sharing program usually accesses only the shared folder(s) and no other part of a node computer. A file-sharing program searches the aggregated shared folders of these node computers only for files which correspond to the search request input by a user. It is the file-sharing program which creates the shared folder on the user’s computer and which then saves downloaded files to that folder, usually without overt input from the user. However, when such a program is installed on a computer, the user can typically adjust a number of program settings, such as download speed, the order of presentation of search results, etc. With LimeWire at least, these settings include whether or not to share files; however, the default is set to share files (i.e., LimeWire will share the user’s files unless the user tells it not to do so, either at installation or some later time). Page 3 [6] At 12:46 p.m. on August 31, 2007, by using file-sharing software similar to that employed by Mr. Spencer and other publicly available software, Constable Darren Parisien (now a Detective Sergeant), of the Saskatoon Police Service Criminal Intelligence Section – Vice Unit, discovered files containing child pornography in the shared folder of a computer which was using internet protocol address 70.64.12.102 (the “IP Address”) to connect to the internet; however, Constable Parisien did not know who owned the computer or where it was located. Using yet other software and a database 2011 SKCA 144 (CanLII) compiled by another police service, Constable Parisien determined the IP Address was one of many assigned to Shaw Communications (“Shaw”) for use in Saskatoon, Saskatchewan. [7] On the basis of this information, Sergeant Deb Altrogge, also of the Criminal Intelligence Section – Vice Unit, wrote to Shaw: Constable Darren Parisien … is investigating a criminal code offence pertaining to child pornography and the internet. We have opened [sic] file investigation in relation to this investigation. Pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA), we request the disclosure of customer identifying information including but not limited to name, internet service provider records, address of service, current service status and phone number relevant to the following: 1.