Applicants - Motion Record - Certification - September 9 2019 PDF

Court File No.
T-662-16
SIMPLIFIED ACTION
FEDERAL COURT
PROPOSED CLASS PROCEEDING
B E T W E E N:
VOLTAGE PICTURES, LLC, COBBLER NEVADA, LLC, PTG NEVADA, LLC, CLEAR
SKIES NEVADA, LLC, GLACIER ENTERTAINMENT S.A.R.L. OF LUXEMBOURG, GLACIER
FILMS 1, LLC, AND FATHERS & DAUGHTERS NEVADA, LLC
Applicants
- and -
ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed representative

Respondents
Respondents
MOTION RECORD OF THE APPLICANTS

(Motion returnable September 23 and 24, 2019)
AIRD & BERLIS LLP

Barristers and Solicitors
Brookfield Place
Suite 1800, Box 754
181 Bay Street
Toronto, ON M5J 2T9
Kenneth R. Clark
Patrick Copeland
Tel: 416.863.1500
Fax: 416.863.1515
Counsel for the Applicants

2
TO: THE ADMINISTRATOR

Federal Court
AND TO: LIPMAN, ZENER & WAXMAN LLP

1220 Eglinton Avenue West
Toronto, ON M6C 2E3
Sean N. Zeitz
Tel.: 416.789.0652
Fax: 416.789.9015
Counsel for the Respondents
AND TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY

AND PUBLIC INTEREST CLINIC (CIPPIC)
University of Ottawa, Faculty of Law
Common Law Section
57 Louis Pasteur Street
Ottawa, ON K1N6N5
David Fewer
Tamir Israel
Tel.: 613.562.5800 ext. 2558

Fax: 613.562.5417
Counsel for Samuelson-Glushko Canadian Internet Policy

and Public Interest Clinic (CIPPIC)
INDEX
Court File No. T-662-16
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
Applicants
- and -
ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI. proposed representative

Respondents
Respondents
MOTION RECORD OF THE APPLICANTS

(Motion returnable September 23 and 24, 2019)
INDEX
Tab Document Page No.
1 Amended Notice of Motion dated September 9, 2019 1 -7
2 Affidavit of Benjamin Perino affirmed June 3, 2019 8-14
a) Exhibit A - Affidavit of Daniel Macek affirmed May 19, 2016 15-31
3 Memorandum of Fact and Law dated September 9, 2019 32-64
1) Appendix 1 - Proposed Litigation Plan 65-70
2) Appendix 2 - Sample Certification Notice 71 -72
37162402.1
TAB 1
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
Applicants
- and -
ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed representative

Respondents
Respondents
AMENDED NOTICE OF MOTION

(Certification)
TAKE NOTICE THAT the Applicants (collectively, the “Voltage Parties”) will make a motion to
the Court on September 23 and 24, 2019 pursuant to the direction of the Case Management
Judge, the Honourable Mr. Justice Boswell, dated January 22, 2019.
DEFINITIONS
“Unlawful Acts” include:
1. Making a Work available for download by means of the BitTorrent network by offering
the file for uploading, or actually uploading a work;
2. Advertising by way of the BitTorrent Prototcol that a Work was available for download;
3. Failing to take reasonable steps to ensure that Unlawful Acts 1 and 2 did not take place
in respect of an internet account controlled by a subscriber and by doing so authorizing
such Unlawful Acts.
“Direct Infringers” includes persons who have performed one or more of Unlawful Acts 1 or 2,
or who have unlawfully copied a Work.
“Internet Account Subscribers” are persons who are contractually obligated to an internet
service provider to pay for internet services.
“Authorizing Infringers” includes persons such as Internet Account Subscribers who have
performed Unlawful Acts 3 or who have authorized an unlawful copy of a Work.
2
2
"Works” are the following cinematographic works, owned by the Owner listed below:
# Owner Title
1. COBBLER NEVADA, LLC THE COBBLER
2. PTG NEVADA, LLC PAY THE GHOST
3. CLEAR SKIES NEVADA, LLC GOOD KILL
4. FATHERS & DAUGHTERS NEVADA, LLC FATHERS AND DAUGHTERS
5. GLACIER FILMS 1, LLC and GLACIER AMERICAN HEIST
ENTERTAINMENT S.A.R.L. of LUXEMBOURG
THIS MOTION IS FOR an order:
a) certifying this application as a class proceeding, pursuant to Rules 334.14(2), 334.14(3)

and 334.16 of the Federal Courts Rules and on the terms and conditions pursuant to Rule
334.17 of the Federal Courts Rules;
b) describing the “Class” as all natural persons residing in Canada who are Direct Infringers
or who are Authorizing Infringers;
c) appointing Robert Salna, James Rose and Loridana Cerrelli as the Representative
Respondents for the Class;
d) stating the nature of the claims being asserted against the Class are for copyright
Infringement of the Works pursuant to section 27 of the Copyright Act, R.S.C., 1985, c. C-
42 (the “Copyright Act”);
e) stating the nature of the relief claimed against the Class is as follows:
(i) a declaration that each member of the Class has infringed the Applicants’ copyright
in the Works contrary to ss. 27(1), 27(2) and 27(2.3) of the Copyright Act;
(ii) a declaration that the applicable Applicant owns the copyright in each Work;
(iii) a declaration that copyright subsists in each of the Works;
(iv) an interim, interlocutory and permanent injunction restraining each member of the
Class, any and all persons acting on behalf of or in conjunction with any of them,
and any and all persons with notice of such injunction from infringing the copyright
in the Works, including by way of the Unlawful Acts;
(v) statutory damages pursuant to s. 38.1(a) or 38.1(b) of the Copyright Act, as the
case may be;
(vi) pre-judgment and post-judgment interest;
(vii) costs; and
(viii) such further relief as is requested by the Applicants and that this Honourable
Court finds just;
3
f) setting out the common questions of law or fact for the Class; - - - - -
3
g) specifying the time and manner for Class members to opt out of the class proceeding;
h) approving the form and content of notice to the Class (“Notice”); and
i) specifying the means that shall be used to publish any Notice.
THE GROUNDS FOR THIS MOTION ARE:
1) the Notice of Application discloses a reasonable cause of action;
2) there is an identifiable class of two or more respondent persons;
3) the claims of the Class members raise common issues of fact or law as follows:
Copyright Infringement
(i) Are each of the Works original cinematographic works in which copyright
subsists?
(ii) Does the relevant Applicant own the copyright in the appropriate Works?
(iii) Do the Unlawful Acts constitute copyright infringement e.g.:
a. acts that by the Copyright Act only the owner of the copyright has the
right to do;
b. acts that are listed in paragraphs 27(2)(b) to (d) of the Copyright Act
and that the Respondents knew or should have known infringes
copyright; or
c. acts referred to in s. 27(2.3) of the Copyright Act,
(iv) Do the Unlawful Acts constitute offering a Work by telecommunication contrary

to the provisions of the Copyright Act?
(v) Did any of the Applicants consent to or authorize any of the Unlawful Acts?
(vi) Did the Internet Account Subscribers:
i. possess sufficient control over the use of their internet accounts and
associated computers and internet devices such that they authorized,
sanctioned, approved or countenanced the infringements as
particularized in Unlawful Acts 1 or 2;
ii. require prior notice to be found liable for authorization. If notice is

necessary, is notice by way of an agreement with their Internet Service
Provider sufficient to engage their liability for the acts of the Direct
Infringers, or is specific direct notice necessary?
4
4
iii. receive notice of infringement. If the Internet Account Subscribers were
provided with notice, but they ignored such notice, does that constitute
authorization of copyright infringement. Is willful blindness sufficient to
constitute authorization of copyright infringement.
Defences
(vii) Does the Class have any available defences to copyright infringement,
including any defence based on fair dealing?
Relief
(viii) What is an appropriate quantum of statutory damages available pursuant

to section 38.1 of the Copyright Act,
(ix) Is this an appropriate case for an injunction?
4) these questions predominate over any questions affecting only individual members;
5) a class action is the preferable procedure for the fair and efficient resolution of the common
questions of law or fact because, in addition the above:
6) the Representative Respondents:
a) would fairly and adequately represent the interests of the Class; and
b) do not have, on the common questions of law or fact, an interest that conflicts with the
interests of other Class members;
7) Class members may opt out of the class action at any time prior to the commencement of
hearing;
8) at least two weeks prior to the hearing of the certification motion, the Voltage Parties will have
served and filed a plan for the proceeding that sets out a workable method of advancing the
proceeding on behalf of the class and notifying members as to how the proceeding is
progressing. This litigation plan shall provide information in respect of:
a) particulars of the Leave to Intervene motion to permit CIPPIC to be an intervener in these

proceedings;
b) particulars regarding obtaining counsel for the new proposed class members James Rose
and Loridana Cerrelli;
c) Notice being provided to the proposed Class in accordance with Rule 334.32 of the Rules;
d) the content of the Notice of Certification will comply with the requirements of Rule
334.32(5) of the Federal Courts Rules in a form agreed to by the Parties or as otherwise
approved by the Court;
5
5
e) the Applicants’ counsel and counsel for the representative Respondents shall post a copy
of the Notice of Certification on their respective websites and, if certified, the Applicants’
counsel will also send a copy of the Notice of Certification to each proposed class member
by way of the Notice & Notice system set out in the Copyright Act or as otherwise directed
by the Court.
f) an Opt-Out Form shall be prepared for those Class members who do not wish to
participate in the class proceeding after the hearing of the common issues, and permitting
the Class members to know what the consequences are of opting out as opposed to being
subject to any order affecting the Class;
g) an agreed statement of facts is to be prepared in respect of the Unlawful Acts for

determination of certification (i.e. what acts are detected by the Applicants’ software and
how that functions, in line with the Norwich motion evidence already submitted in this
Application);
h) technical and expert evidence regarding the reliability of the technical evidence regarding
the software used to identify class members shall be deferred to the hearing on the merits
of the common issues, if any, as it is not necessary for determining the issues of
certification;
i) evidence to be submitted by the proposed class respondents;
j) cross-examination (if any) on the evidence filed;
k) following cross-examinations, the Applicants may seek amendment or further refinement

to the common issues or any relevant sub-classes, if required;
l) the certification hearing is proposed to be conducted in the ordinary course and consistent
with the procedures applicable to Applications in the Federal Courts Rules and any
agreement as between the parties or as otherwise directed by the Court;
m) following the certification hearing and receipt of the Court's judgement on the common
issues, the Class members shall be identified and notified of the judgement in the same
manner as set out above; and
n) to the extent any issues are found to be suitable for a hearing on common issues, a case
management conference is to be held to set a schedule for the hearing on common issues.
6
6
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
a) the evidence filed in the Norwich motion identifying Mr. Salna as a proposed class
representative;
b) affidavit evidence to be filed, if any:
c) matters of which the court may take judicial notice; and
d) such other materials as the Plaintiffs may tender and the Honourable Court may allow.
Date Amended: September 9, 2019

Brookfield Place
Suite 1800, Box 754
181 Bay Street
Toronto, ON M5J 2T9
Kenneth R. Clark
Patrick Copeland
Tel: 416.863.1500
Fax: 416.863.1515

Federal Court

Toronto, ON M6C 2E3
Sean N. Zeitz
Tel: 416.789.0652
Fax: 416.789.9015

7

Common Law Section
Ottawa, ON K1N6N5
David Fewer
Tamir Israel
Tel: 613.562.5800 ext. 2558

Fax: 613.562.5417

37172696.1
TAB 2
Court File No. T-662-16'
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
Applicants
- and -
ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI. proposed representative

Respondents
Respondents
AFFIDAVIT OF BENJAMIN PERINO

[Sworn_________ ]
I, BENJAMIN PERINO, MAKE OATH AND SAY AS FOLLOWS:
1. I am the former Chief Executive Officer and a Senior Developer at GuardaLey, Ltd
(“GuardaLey”), a company which I founded in 2008. I created GuardaLey to provide
clients with the ability to monitor the downloading and distribution of their copyrighted
works. I designed, implemented, programmed, maintained and monitor GuardaLey’s data
collection system used to track and identify users’ Internet Protocol (“IP”) addresses used
by people to distribute works via the BitTorrent Protocol. GuardaLey licences this
detection system to Maverickeye UG (“Maverickeye") which Maverickeye uses to track
and identify the IP addresses using the BitTorrent protocol for various clients.
2. I have read the Affidavit of Daniel Macek dated May 19, 2016 (the “Macek Affidavit”),
which is attached hereto as Exhibit “A”. To my knowledge, Mr. Macek no longer works
with Maverickeye. I am in agreement with the contents of the Macek Affidavit and repeat
and rely on it herein as if it were my own evidence. For clarity, I am in agreement with the
following statements and restate them below, modified to incorporate my involvement and
with a few clarifications:
2
The BitTorrent Protocol for "Sharing” Computer Files
(a) BitTorrent is a popular P2P “file sharing” protocol which enables the decentralized
distribution of computer files over the internet between individual internet users,
rather than through a centralized source. The BitTorrent network is an international
network that take place over the internet. It is not typically limited to any one
jurisdiction or nationality.
(b) First, some terminology: a user "uploads” a computer file to someone who
requests the file form such user. A user "downloads” a computer file from someone
who “uploads" that file to them. In other words, and as more fully set out below,
an “uploader” offers a file (such as one of the Works) for download and when
requested, sends that file to the downloader. This is, in basic terms, the manner
in which the Works have been distributed over P2P networks.
(c) A users who wishes to upload or download a computer file, which could include a
motion picture, music, computer software or other forms of computer files, can run
a program that implements the BitTorrent protocol (a ‘client’). There are many
forms of programs that run the BitTorrent protocol, each of which functions in a
similar fashion. The client software itself, or third party search engines, allow a
user to search for a particular file (e.g. movie, music file, etc.). Once the file is
chosen, the client then automatically searches for other clients using the same
BitTorrent protocol that broadcasts that they also have in their library the same file.
(d) A user who wishes to “share” a computer file (e.g. a motion picture) with other
users of the BitTorrent software places that computer file in a computer location
(folder) that is known to the specific software that is running a BitTorrent protocol.
To be more precise, the user (or the user’s software) has to open that file and
create a .torrent file for it that then can be shared. The BitTorrent software then
offers that file for download to anyone who is using compatible BitTorrent software
and who requests that particular file. Participating in sharing also stores the file in
a “known” folder and shares it with other participants.
(e) A users then starts downloading a file by requesting it from the uploader who has
offered that file for download. A user who is uploading the file being requested on
their computer is said to be "seeding” the file. Other users of the BitTorrent
software (called “peers”) are able to connect directly to the user seeding the fil& $
■■ r,.
and can begin downloading it. In an automated and collaborative process, each.)
“peer” who has a copy of the same specific file in question can then share that file
(or, more typically, portions of it) with others.
Typically, BitTorrent software breaks a file into numerous small data packets, each
of which is identifiable by a unique “hash” number created using a mathematical
algorithm. Once the file is broken down into these smaller packets, peers can
download different segments of the same file from different users.
As peers download the various packets which, when taken together constitute the
entire file, those same individuals then also become seeders for other users who
wish to download the same material.
Eventually, the entire computer file (such as one of the Works) is obtained by
downloading from one or many persons all of the required packets. The BitTorrent
software then assembles the completed file on the downloader’s computer. At that
point, the user may then use the file (e.g. watch the movie). Any particular
uploader may have only provided a small portion of the entire file that was
downloaded, or it may have provided a large portion of the entire file, or the entire
file. The downloader (peer) eventually acts as well as a “seeder” and can
thereafter distribute the computer file to other users connected to the BitTorrent
network unless steps are taken to avoid this occurring.
A users does not typically copy an entire file from one users, but from multiple
“peers” that have previously downloaded the file and have it available through their
BitTorrent software.
Typically, every users who is copying or who has copied a file is simultaneously
offering to distribute portions of it to every other user connected to the BitTorrent
network. The goal of the system is to distribute files over many computers and
internet connections, which in turn tends to minimize data transfers from any one
individual and keep individual expenses and bandwidth usage (i.e. internet usage)
low, and most importantly today, an increase of availability. You can shut down a
host but not thousands of sources.
4
IP Addresses
(k) An internet protocol (“IP1’) address is a unique, numerical label which is assigned
to every device, such as a computer, router or switch, connected to the internet.
An IP address allows the logical location of these devices to be determined by
other devices using the internet, and for data to be sent to such devices, and
differentiated from other devices. Once of the core functions of an IP address is
to allow data sent over the internet to be received by the intended recipient device.
(l) An internet service provider ("ISP”) allocates and IP address to devices connected
to its network. ISPs are assigned blocks or ranges of IP addresses. The range
assigned to any ISP can be found in publically available databases on the internet.
It is therefore possible to determine which ISP has been allocated a particular IP
address at a particular date and time.
(m) ISPs track the IP addresses assigned to their customers at any given time and
typically retain “user logs” of that information. Only the ISP can correlate an IP
address to identity of its customer. The ISP’s customer may be (and often is) the
individual who is utilizing BitTorrent software to distribute files, particularly if the
assigned IP address is only used by a single device.
(n) in many cases, the ISP’s customer may be getting their internet delivered through
a “router” supplied by the ISP, a device that allows many devices to use the
customer's internet connection (and the customer’s specifically allocated IP
address) with other devices connected to it. In a residential setting, for example,
the ISP could allocate to a customer an IP address to be used by a WiFi router,
which will then have a number of wireless or wired devices connecting to the router
(e.g. phone, table, computer). Each of those devices could be used
simultaneously by different individuals.
(o) As an example, a home could have one IP address assigned to it. and have maltiy
family members simultaneously using that IP address through a router. In such a;'
case, and in many other cases, I would expect that a responsible customer would
have the knowledge of who was using the particular internet account at a
specifically identified date and time, or would have the ability to know that.
(p) IP addresses are sometimes allocated to a customer for a long period of time, In
other cases, more frequently, the IP addresses change and are dynamically
allocated bv the ISP to the cusiome..
The Forensic Software
(q) The software that is used to track infringers has been purpose-built to track P2P
"sharing" of computer files as part of my day-to-day job. Given that the BitTorrent
protocol is an open and shared network, it is not difficult for the software to
determine who at any particular time is offering for upload one of the works I am
tracking by reference to their IP address. No other information is available about
the uploader of a work without the assistance of the relevant ISP. In typical
operation, the software will run in the background for several days and collect data
on the offering for upload of the works. It does this in a manner that is designed
to avoid false positives and to avoid certain pitfalls of the fact that on the internet
IP Addresses will change from time to time.
(r) The Forensic Software searches P2P networks for computer files corresponding
to the Works and it identifies the IP address of each person who was offering any
of these files for uploading. This information (i.e. the particular file being
transferred and the IP address(es) of the uploader(s)) is available to anyone that
is connected to the P2P network and is freely shared. If the information wasn’t
shared and therefore known, no-one would be able to use the software to transfer
files.
(s) As part of the investigation, the Forensic Software downloaded copies of the Works
that were made available for uploading on the P2P networks. These reference
works were then used to search for others Works being offered for upload. The
following identifying information was recorded in respect of the users offering to
upload the Works:
(i) the IP address assigned to the uploader by his or her ISP at the time of the
scan (after a software-generated pause to ensure the IP address was
reliable); f./
the date and time at which the Work was made available for upload by the
uploader in the form of a computer file; and
(iii) the file’s metadata, which includes the name of the computer file containing
the Work and the size of the file, as well as the BitTorrent "hash" identifying
the particular version of the Work.
(collectively, the “File Data”)
(iv) Between November 14, 2015 and March 24, 2016, Mr. Macek used
forensic software called MaverikMonitor (the “Forensic Software") to scan
P2P networks for the presence of the Works. This scan collected (and
continues to collect) data on the offering for upload of the Works by users
of the BitTorrent software.
In reviewing the File Data, we noted that MaverickMonitor had located the IP
address 174.112.37.227 which, at various times, was making available for upload
all five of the Works. We traced this IP address through an ARIN network search
to Rogers Cable Communications Inc., a Canadian ISP. In addition to the user at
this IP address offering all of the Works for upload, this IP address was chosen as
it been sampled on many occasions, which ensures that the data collected on this
user was reliable.
I am informed by counsel that this IP address is associated with the individual

named in this proceeding as Mr. Salna, the proposed representative respondent
in this Application.
Mr. Macek had been provided with a control copy of each of the Works as a guide
for investigating infringements. The Forensic Software compared the portions of
the computer files corresponding to the Works downloaded from Mr. Salna with
the equivalent portions of the control copies, and as a result he confirmed that the
files offered for uoload by Mr. Salna, as listed in the File Data, are reproductions
of the Works.
The MaverickMonitor software would be used to identify potential infringers in
application in the same manner as set out above.
signed (of sealed} Ibis day in my presence by..........................
35755689.5 ..Dc.m.AMlM.....................................
M Certifying Officer, i certify only the signature which appears
on document and assume no responsibility for the content
of this document.
In testimony whereof I have hereto set my hand and
official seal today ./Mo/ifts/rte?........... this ....pLt-'h’J................
day of,.,.J.wUV.fc.........
T _ GEORGE VOURKAS
f ^ -^ 11?irVr Certifying Officer
,yyj 4/t£(J
TAB A
EXHIBIT A TO THE AFFIDAVIT OF BENJAMIN PERINO
O fF tC
VOLTAGE PICTURES, LLC, COBBLER NEVADA, LLC, PTG NEVADA, LLC, CLEAR SKIES
NEVADA, LLC, GLACIER ENTERTAINMENT S.A.R.L. OF LUXEMBOURG, GLACIER FILMS
1, LLC, AND FATHERS & DAUGHTERS NEVADA, LLC
- " Applicants
and
JOHN DOE #1, proposed representative Respondent

on behaif of a class of Respondents
Respondent
AFFIDAVIT OF DANIEL MACEK

: ('Affirmed May, /ff .2016)
I, DANIEL MACEK, of Karlsruhe, Germany, SOLEMNLY AFFIRM AS FOLLOWS:
1. I am a systems administrator in the employ of MaverickEye UG (“MaverickEye").
MaverickEye developed and runs a system for monitoring filesharing' systems that I use as part
of my employment. Also as part of my employment duties, on behalf of our clients, we monitor
peer to peer (TCP") internet networks to identify instances of copyright infringements,
particularly with respect to movies. The process by which P2P networks are used to distribute
copyrighted works is outlined below, as well as the manner In which I have identified the IP
address of individuals involved in this lawsuit.
2. I make this affidavit in support of a request to identify one of the anonymous persons
who our system has located offering to upload one of our client’s movies. I make this affidavit
on the basis of my own work, and if I rely on the facts of others,;! state them herein and I believe
that they are true.
3. The Applicant, Voltage Pictures LLC (“Voltage”), is a movie production company based
in Los Angeles, California and it is one of our clients. In 2015 onwards, Voltage requested that I
determine whether certain of its films were being offered for upload by Canadian internet users
of P2P networks (as described below).
4. The relevant movies for this Application that I was instructed to locate on P2P networks
are set out below (the “Works”). The party who owns the copyright in each film is also listed in
the table below. • -
# Title Owner
1. THE COBBLER . ' COBBLER NEVADA, LLC
2. PAY THE GHOST PTG NEVADA, LLC
3. GOOD KILL CLEAR SKIES NEVADA, LLC
4. FATHERS AND DAUGHTERS FATHERS & DAUGHTERS

NEVADA, LLC
5, AMERICAN HEIST • GLACIER FILMS 1, LLC and
GLACIER ENTERTAINMENT
S.A.R.L. of LUXEMBOURG
5. In order to assess whether the Works were being offered for upload by the users of .the
• . • ■ ' ' • c.
P2P network, I watched each of the 5 Works. Schedule B contains screenshots of the:,send
credits for each of the Works..; These screenshots demonstrate that the Applicants are listed in
the credits of each of the Works as owning the copyright. I also note that the Voltage logo
appears in some of these screenshots.

3
VJ
■ * v/
6, Through custom software outlined more fully below, i was able .to identify numerous
■/
instances of the Works being offered for upload and distributed using P2P networks using the
"BitTorrent” protocol.
The BitTorrent Protocol for “Sharing” Computer Files
7. BitTorrent is a popular P2P 'Tile sharing" protocol which; enables the^ decentralized
distribution of computer files over the internet between individual internet users,5 rather than
i
through a centralized source. The BitTorrent network is. an international network that takes
place over the internet. It is not typically limited to any one jurisdiction or nationality.
8. First, some terminology: a user “uploads” a computer file to someone who requests the
file from such user. A user “downloads” a computer file from someone who “uploads” that file to
them. In other words,.andias more fully set out below, an “uploader” offers a file (such as one of
the Works) for download and when requested, sends that file to the downloader. This is, in
basic terms, the manner in which the Works have been distributed over P2P networks.
9. A user who wishes to upload or download a computer file, which could includes motion
picture, music, computer software or other forms of computer files, can run a program that
implements the BitTorrent protocol (a 'client'). There are many forms of programs that run the
BitTorrent protocol, each of which functions in a similar fashion. The client software itself, or
third party search engines, allow a user to search for a particular file (e.g. movie, music file,
etc.). Once the file is chosen, the client then automatically searches for other clients running the
same BitTorrent protocol that broadcast that they also have in their library the same file.
10. A user who wishes to “share11 a computer file (e.g: a motion picture) with other users of
the BitTorrent software places that computer file in a computer location (folder) that is known to
the specifio software that is running the BitTorrent protocol. The BitTorrent software then offers
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that file for download to anyone who is using compatible BitTorrent software and who requests^/
that particular file.
11, A user then starts downloading a file by requesting it from the uploader who has offered
that file for download. A user who is uploading the file being requested on their computer is said
tq be “seeding” the file. Other users of the BitTorrent software (called “peers") are able to
connect directly to the user seeding the file and can begin-downloading it. In an automated and I
collaborative process, each "peer” who has a copy of the same specific file in question can then ]
share that file (or, more typically, portions of it) with others.
12. Typically, BitTorrent software breaks a file into numerous small data packets, each of
which is identifiable by a unique “hash”, number created using a mathematicafalgorithm. Once
the file is broken down into these smaller packets, peers can download different segments of
the same file from different users:
13. As peers download the various packets which, when taken together constitute the entire
file, those same individuals then also become seeders for other users who wish to download the
same material. ' . . > ■
14. Eventually, the entire computer file (such as one of the Works) is obtained by
downloading from one or many persons all of the required packets. The BitTorrent software
then assembles the completed file on the downloader’s computer. At that point, the user may
then use.the file (e.g., watch the movie). Any particular uploader may have only provided a
small portion of the entire file that was downloaded, or it may have provided a large portion of
the entire file, or the entire file. The downloader (peer) eventually acts as well as a “seeder" and
can thereafter distribute the computer file to other users connected to the BitTorrent network
unless steps are taken to avoid this occurring.

15. A user does not typically copy an entire file from one user, but from multiple “peers” that'v'
have previously downloaded the file .and have it available through their BitTorrent software.
16. Typically, every user who is copying or who has copied a file is simultaneously offering
to distribute portions of it to every other user connected to the BitTorrent network. The goal of
the system is to distribute files over many computers and internet connections, which in turn
tends to mthimize data transfers from any one individual and keep individual expenses and
bandwidth usage (i.e. internet usage) low.
IP Addresses
17, An internet protocol (“IP") address is a unique, numerical label which is assigned to
every device, such as a computer, router or switch, connected to the internet. An IP address
allows the location of these devices to be determined by other devices using the internet, and
for data to be sent to such devices, and differentiated from other devices. One of the core
functions of an IP address is to allow data sent over the internet to be received by the intended
recipient device. i-.>j ■<:
18. An internet service prqyider (“ISP") allocates an IP address to devices connect^
network. ISP’s are assigned blocks or ranges of IP addresses. The range assigned t<*$jj
can be found in publicly available databases on the internet. It is therefore pds
determine which ISP has been allocated a particular IP address at a particular date a'nftvSflUMtf*- v^
. ■ariicuSa*'
19. ISP’s track the IP addresses assigned to their customers at any given time and typieaffy
• ■ IT)
retain "user logs” of that information. Only the ISP can correlate an IP address to the identity of
its customer. The ISP’s customer may be (and often is) the individual who is utilizing BitTorrent
software to distribute files, particularly if the assigned IP address is only used by a single device,
20. In many cases, the ISP’s customer may be getting their internet delivered through a
"router” supplied by the ISP, a device that allows many devices to use the customer's internet
connection (and the customer’s specificaily allocated IP address) with other devices connected
to it. In a residential setting, for example, the ISP could allocate to a customer an IP address to
be used by a WiFi router, which will then have a number of wireless or wired devices connecting
to the router (e.g. phone, tablet, computer). Each of those devices could be used
simultaneously by different individuals.
21. As an example,-a home could have one IP address assigned to it, and have many family
members simultaneously using that IP address through a router. In such a case, and-in many
other cases, I would expect that a responsible customer would have the knowledge of who was
using the particular internet account at the specifically identified date and time, or would have
the ability to know that.
22. IP addresses are sometimes allocated to a customer for a long period of time. In other
cases, more frequently, the IP addresses change and are dynamically allocated by the ISP to
the customer.
the Forensic Software
23. The software that is used to track infringers has been purpose-built to track P2P
“sharing’’ of computer files as part of my day-to-day job. Given that the BitTorrent protocol is an
open and shared network, it is not difficult for the software to determine who at any particular
time is offering for upload one of the works I am tracking by reference to their IP address. No
other information is available about the uploader of a work without the assistance of the relevant
ISP. In typical operation, the software vi/ill run in‘the background for several days and collect
data on the offering for upload of the works. It does this in a manner that is designed to avoid
UJmSdi
false positives and to avoid certain pitfalls of the fact that on the internet IP Addresses will
change from time to time.
24. Between November 14, 2015 and March 24, 2016, I used forensic software called
MaverikMonitor (the “Forensic Software”) to scan P2P networks for the presence of the Works.
This scan collected (and continues to collect) data on the offering for upload of the Works by
users of the BitTorrent software. I was tasked with monitoring and analyzing the results of this
investigation.
25. The Forensic Software searches P2P networks for computer files corresponding to the
Works and it identifies the IP address of each person who was offering any of these files for
uploading. This information (i.e. the particular file, being transferred and the IP address(es) of
the uploader(s)) is available to anyone that is connected to the P2P network and is freely
shared. If the information wasn’t shared, no-one would be able to use the software to transfer
files.
26. As part of the investigation, the Forensic Software downloaded copies of the Works that
were made available for uploading on the P2P networks. These reference works were then
used to search for others Works being offered for upload. The following identifying information
was recorded in respect of the users offering to upload the Works:
(a) the IP address assigned to;the uploader by his or her ISP at the time of the scan
(after a software-generated pause to ensure the IP address was reliable);
(b) the date and time at which the Work was made available for upload by the
uploader in the form of a computer file; and

8
(c) the file’s metadata, which includes the name of the cornputer file containing the >
Work and the size of the file, as well as the BitTorrent "hash’’ identifying the
particular version of the Work.
(collectively, the "File Data")
27. In reviewing the File. Data, we, located the IP address 174.112.37.227 which, at various
times, was making available for upload all, five of the Works. We traced this IP address through
an ARIN network search to Rogers Cable Communications Inc., a Canadian ISP. In addition to
the. user at this IP address offering all of the Works for upload, this IP address was chosen as it
been sampled on many occasions, which ensures that the data collected on this user was
reliable. The File Data collected on this IP address, including the times at which the data was
collected, is set out in Exhibit A hereto.
28. I am informed by counsel that this IP address is associated with the individual named in
this proceeding as John Doe #1.
29. I have been provided with a control copy of each of the Works as a guide for
j!
investigating infringements. Through the Forensic Software I have compared the portions of
f
i the computer files corresponding to the Works downloaded from John Doe #1 with the
equivalent portions of the control copies, and as a result I confirm that the files offered for
upload by John Doe #1 as listed in the File Data, are reproductions of the Works.
Identification of the ISP’s customer
30. Once provided with the IP address and the File Data, it is my understanding that ISPs
(including Rogers) can use their subscriber logs to identify the individual whose account was
assigned the particular IP address as at the date and time set out in the File Data. It is my
understanding that the information retained by the ISP would tend to be the name, address,
24
9
cd<
V.-'
phone number and (potentially) email addresses of their customers. From this information, one
may determine who is John Doe #1. Only an ISP can correlate the IP address to the real
identity of its customer. I am aware of no other method by which John Doe #1 could be reliably
identified.
SOLEMNLY AFFIRMED, BEFORE ME )

at the City of ______ , )
in the State of )
this day of May, 2016 )
)
A COMMISSIONER FOR TAKING AFFIDAVITS Etc. c)/ Daniel Macek

Cobbler Neviidd, LLC is the author of this motion picture
for tha purpose of copyright and other laws.
The characters, entities and incidents portrayed herein and the names used herein
are fictitious, and any similarity to the name, character or history of any person or
entity is entirely coincidents: and unintentional
Ownership of this motion picture is protected by copyright and other applicable laws
of the United States of America and other countries. Any unauthorized duplication,
distribution, or exhibition of this motion picture (including soundtrack) is
pronihited and conic result in criminal prosecution as well as civil liability.
V 2014 Cobbler Nevada, LLC

All Rights Reserved.
PAY THE GHOST

11
90 KILL
u.m SKtts !H’vao«, LfX IS THE AUTHDR Of IHJa MBUON HCriiRi' FOB fiJt lalHPOS! Hr
COfVRtCHl AMO OIHES I.AJ1.
fat; ChBMACTEIIS, ENTITIES AND INCIDENTS NOPrft^TEti HEfitIN AND thE KANCD U3tf. HEREIN
TOC riLtmoUf., ft NO ANY SIHIURnr TO THE nanc, CHABACTCB ON history of any pesson or
^ ENTITY I« CHT1HELY COINCIDENTAL AND liNINTEfUIONAL.
OWNERSHIP Or THIS MOTION PJCTOBC IS PROTECTED BY COPY/UGHT «NO OTHCH A(><>LtCA3L'Z LBUh
Of THE UNITED STATES t>? ANEiUCA AND OTHER COUNTRIES. ANY t'NAUTTiPHlIl.O OUPÎCATTON,
OISTRIBJnCN. DR rkHIBITION Or IHtf. MOTION PICTURE (INCUJDIN8 SOUNOTPAEK) IS PROHrflIfF.0
AND COULD KESOLT JN CHJMINAu PfiODCCUTIiTN AS uELl A£ Cl-JU. URLIIUTV.
C 501A CLEAR SHIES NCUAPA, «,LC

AlL rights RESFHVEti.
VOLTAGE
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fwr.mWf ;l C t-.U'i u-iiKwi’i t>> s ■! {i*if;l ivyniw

S!*Hs s< i.riii:.! atii ■;!(<» tvynlnn Anj nMu|(>|!iit4 d.j.'.fAM'i, («!>it 4 v*.» &■ ti* idjw i? !f s
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"S tupyr.sht 10il (ilaciei lilms 1 U.C. In me Uniicd States.

© Copyrijllt 20M f.lnn 1, LIS and Glamor F.iiloiialnnitm S.A.S.L. of luKorabciiirj in the kÎ o! l>;
. ■ • r • Vforlil.-
- All Rights Reserved.
fills motioi! piituro 'S jnotwted urMter the lav/s ol Iho Omteii Srate-; nnc- otl»i conntiios. Any un wtlHntl
ilofilit'alioii dislriliiilioii w ethihilii/ii is slM'ty pratiilriled and ma> (i-sidl m S"lli civil and erimiiMl /kwH.'i's.
The pstEoiis, chaiaole;:. and wants dupicled in this TIir ate tictitious. Any similarity to actual poisons, living or
dead, is pUMly coi'icidental.
fHendr|ie^'__ 1 _ ^ ^ ^. *. 5 £6 [Sp UTCTime - relatcdticJtmame
174.11237.227 50001 bt pTorrent3.43 American
. Heist (2014) [I080p] F90A026EFC4SiB2C7l499lb7D4D60E886S2490B3" 1547447175 Rogers Cable 2015-12-29 07:25:20 American Heist
174.112.37.227 63685 bt plorrent 3.4.5 American Heist (2014) [1080p] F90A026EFC451B2C714991D7D4D60EB8682490B3 1547447175 Rogers Cable 2016-01-06 06:29:36 American Heist
174.11237.227 61808 bt pTorrent 3.4.5 American Heist (2014) [1080p] F90A026EFC451B2C714991D7D4D60E88682490B3 1547447175 Rogers Cable 2016-01-07 01:47:08 American Heist
174.11237.227 55110 bt pTorrent 3.4.5 American Heist (2014) [1080p] F30AQ26EFC451B2C714991D7D4D60E886S2490B3 ' 1S47447175 Rogers Cable 2016-01-12 07:31:31- American Heist
174.11237.227 57136 bt pTorrent 3.43 American Heist (2014) [1080p] F90A026EFC4SlB2C71499iD7D4D60E88682490B3 1547447175 Rogers Cable 2016-01-15 06:29:09 American Heist
174.11237.227 65510 bt pTorrent 3.4.5 American.Heist (2014) [1080p] F90A026EFC451B2C714991D7D4D60E8868249OB3 1547447175 Rogers Cable 2016-01-15 07:34:40 American Heist
174.11237.227 61804 bt pTorrent 3.4.5 American Heist (2014) [lOSOp] F90A026EFC451B2C714991D7D4D60E88682490B3 1547447175 Rogers Cabie 2016-01-26 01:06:07 American Heist
174.11237.227 60724 bt. pTorrent 3.4.5 Fathers.and.Daughters.2015.8RRip.XViD-ETRG C8C2316B7D67E5738D46B7F92E6E53056E5431B9 .740122657 Rogers Cable 2016-03-10 02:23:04 Fathers and Daughters
174.11237.227 53469 bt pTorrent 3.43 Good Kill (2014) - 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2015-12-05 04:34:47 Good Kill
174.11237.227 56811 bt pTorrent 3.43 Good Kill (2014). - . 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2015-12-05 04:45:52 Good Kill ,
174.11237.227 58843 bt pTorrent 3.4.5 Good Kill (2014) 7E3E21SEASFE465D9E33AA12E8FD4CE3301BBDB4 . 847833031 Rogers Cable 2015-12-07 07:23:51 Good Kill ■
174.11237.227 51679 bt pTorrent 3.45 Good Kiii (2014) 7E3E215EA8FE465D9B3AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2015-12-20 0033:23 Good Kill
174.11237.227 50891 bt pTorrent 3.43 Good Kill (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable.. 2015-12-20 03:29:10 Good Kill
174.11237:227 61765 bt pTorrent 3.43 Good Kill (2014) 7E3E21SEA8FE465D9E33AA12ESFD4CE3301BBDB4 847833031 Rogers Cable 2015-12-20 04:29:05 Good Kill
174.11237.227 63235 bt pTorrent 3.4.5 Good Kiil (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-01-12 07:05:35 Good KIII .
174.11237.227 51583 bt pTorrent 3.4.5 Good Kill (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-01-15 06:10:11 Good Kill
174.11237.227 60821 bt pTorrent 3.43 Good Kill (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-01-15 06:40:13 Good Kill
174.11237.227 51377 bt pTorrent 3.4.5 Good Kill (2014) 7E3E21SEABFE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-01-15 07:41:35 Good Kill
174.11237.227 62761 bt pTorrent 3.43 Good Kiii (2014) . 7E3E215EASFE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-01-24 04:45:34 Good Kill
174,11237.227 62815 bt pTorrent 3.43 Good Kill (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-02-02 08:33:19 Good Kill
174.U237.227 56079 bt pTorrent 3.43 Good Kill (2014) 7E3E215EA8FE465D9E33AA12E8FD4CE3301BBDB4 847833031 Rogers Cable 2016-02-18 03:45:27 Good Kill
174.112.37.227 62398 bt pTorrent 3.4.5 Pay.the-Ghost.2015.HDRip.XViD-ETRG 0495EFG34B5B1374A2DEA4513372A5A18F022848 ■741359954 Rogers Cable 2015-11-14 06:36:35 Pay the Ghost
174:11237.227 63989 bt pTorrent 3.4.5 Pay.the.Ghost.2015.HDRip.XViD-ETRG 0495EF034B5B1374A2dEA4S13372ASAl8F022848 741359954 Rogers Cabie 2015-11-14 06:42:59 Pay the Ghost
174.11237.227 57826 bt pTorrent 3.43 Pay.the.Ghost.201S.HDRip.XViD-£TRG ; 0495EF034B5B1374A2DEA4513372ASA18F022848 741359954 Rogers Cable 2015-12-05 06:28:45 Pay the Ghost
174.11237.227 63352 bt pTorrent 3.43 Pay,the.Ghost.2015.HDRip.XViD-ETRG . 0495EF034B5B1374A2DEA4513372A5A18F022848 74135995V Rogers Cable 201S-12-10 08:25:03 Pay the Ghost
174.112.37.227 65468 bt pTorrent 3.43 Pay Ehe.Ghostu2015.HDRip.XViD-ETRG 0495EF034B5B1374A2DEA4513372A5A18F022848 741359954 Rogers Cable 2015-12-11 05:31:35 Pay the Ghost
174.11237.227 55567 bt pTorrent 3.43 Pay.the.Ghost.2015.HDRip.XViD-ETRG 0495EF034B5B1374A2DEA4513372A5A18F022848 741359954 Rogers Cable 2016-01-06 06:04:33 Pay the Ghost
174.11237.227 60203 bt pTorrent 3.43 Pay.the.Ghost.2015-HDRip.XViD-ETRG 049SEF034BSB1374A2DEA4513372A5A18F022848 741359954 Rogers Cable 2016-01-06 06:18:52 Pay the Ghost
174,11237.227 59381 bt pTorrent 3.43 Pay.the.Ghost2015.HDRip.XVil>ETRG 0495EF034B5B1374A2DEA4513372A5A18F022848 741359954'Rogers Cable 2016-01-06 07:05:12 Pay the Ghost
174.11237.227 55607 bt pTorrent 3.43 Pay.the.Ghost.2015.HDRip.XViD--ETRG 0495EF034BSB1374A2DEA4513372A5A18Fb22848 741359954 Rogers Cable : 2016-01-07 02:19:24 Pay the Ghost
174.11237.227 50163 bt pTorrent 3.43 Pay.the.Ghost.201S.HDRip.XViD-ETRG . G495EF034B5B1374A2DEA4513372A5A18F022848 741359954 Rogers Cable 2016-01-07 02:53:45 Pay the Ghost
174.11237.227 51283 bt pTorrentS.43 Pay.the.GhostÔlS.HDRipJCVitAETRG 0495EF034B5B1374A2DEA4S13372ASA18F02284S 741359954 Rogers Cabie 2016-01-14 08:1455 Pay the Ghost
174.11237.227 57990 bt pTorrent 3.43 Pay,the.Ghost.2015.HDRip0(ViD-ETRG 0495EF034B5B1374A2DEA4513372A5A18F022848 741359954. Rogers Cable 2016-01-14 08:39:25 Pay the Ghost
174.11237.227 53057 bt pTorrent 3,43 Pay.the.Ghost.201S.HDRip.XViD-ETRG . 0495EF034B5B1374A2DEA4513372A5A18F022848 741359954 Rogers Cable 2016-02-06 07:14:34 Pay the Ghost
174.11237.227 56781 bt pTorrent 3.4.5 Pay.the.Ghost.2015.HDRip.XViD-ETRG 0495EF034B5B1374A2DEA4513372A5A18Fb22848 741359954 Rogers Cabie 2016-02-06 07:25:27 Pay the Ghost
174.11237.227 56405 bt pTorrent 3.43 Pay.the.Ghost2015.HORip.XViD-ETRG 049SEF034BSBi374A2DEA4513372ASA18F022848 741359954 Rogers Cabie 2016-02-06 08:15:33 Pay the Ghost
174.11237.227 65218 bt pTorrent 3.43 She’s Funny That Way (2014) 71BD9186D7C7D9C43B738E856B88C26D625EF437 78894679G Rogers Cable 2015-12-23 11:04:51 She s Funny That Way
174.11237.227 53412 bt pTorrent 3.45 She's Funny That Way (2014) 71BD91B6D7C7D9C43B738ES56B88C26D625EF437 788946796 Rogers Cable 2015-12-23 13:03:57 She s Funny That Way
174.11237.227 59485 bt pTorrent 3.45 She’s Funny That Way (2014) 71BD91B6D7C7D9C438738E8S6B88C26D625EF437 788946796 Rogers Cable 2016-01-03 07:45:13 She s Funny That Way
174.11237.227 64206 bt pTorrent 3.45 She's Funny TTiat Way (2014) 71B091B6D7C7D9C43B738E856B88C26D62SEF437 788946796 Rogers Cabie 2016-01-03 08:01:38 She s Funny That Way
174.11237.227 53746 bt pTorrent 3.45 She's Funny That Way (2014) 71BD91B6D7C7D9C43B738E8S6B88C26D625EF437 788946796 Rogers Cable 2016-01-27 18:21:05 She s Funny That Way
174.11237.227 51095 bt pTorrent 3.4.5 The Cobbler 2014 72Qp WEB-DLx264 AC3-JYK CCFAB212F02FOBB3BFAFE948FB109580D2DC08A5 2453491448 Rogers Cable 2015-12-02 08:30:05 The Cobbler
174.11237,227 59355 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02F0B83BFAFE948F3109580D2DC08A5 2453491448 Rogers Cable 2015-12-11 07:15:20 The Cobbler
174.11237.227 59549 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB.212F02FOBB3BFAFE948F3109580D2DC08AS 245349144$ Rogers Cabie 2015-12-11 07:16:57 The Cobbler ;x
174.11237.227 61591 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 A3-JYK CCFAB212F02FOBB3BFAFE948F3109580D2DC08AS 2453491448 Rogers Cable 2015-12-11 07:22:39 The Cobbler '\W\
2453491448 Rogers Cable 2005-12-19 16:57:51 The Cobbler . Y/A
174.112.37.227 59786 bt pTorrent 3.4.5 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB212F02FOBB3BFAFE948F3109580D2DC08A5
The Cobbler - / \ ^
174.11237.227 . 60003 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB212F02F0BB3BFAFE948F31O9S8QD2DC08A5 2453491448 Rogers Cable= 2015-12-19 16:58:39
174.11237.227 60703 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB212F02F0BB3BFAFE948F3109580D2DC08A5 2453491448 Rogers Cable 2015-12-19 17:02:09 The Cobbler ^-;- q
174.H2.37.227 50363 bt (Horrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02FOBB3BFAFE948F3109S80D2DC08A5 2453491448 Rogers Cable 2016-01-27 21:4mmPifhe Cobbler
174.11237.227 52593 bt • UTorrent 3.4.5 The Cobbler 2014 720p WEB-OLx264 AC3-JYK CCFAB212F02F08B3BFAFE948F3109580P2DC08A5 2453491448 RogereCable 2016-01-27 The Cobbler
174.112.37.227 56743 bt pTorrent 3.4.5 The Cobbler 2014 720p WEB-OL x264 AC3-JYK CCFAB212F02FOBB3BFAFE948F3109580D2DC08A5 2453491448 Rogers Cable 2016^01-27 2350:09 The Cobbler
174.112.37.227 61789 bt UTorrent 3.4.5 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02FOBB3BFAFE948F3109580D2DC08A5 2453491448 Rogers Cable 2016-01-22 00:54:47 The Cobbler
174.112.37.227 51790 bt pTorrent 3.4.5 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB212F02F0BB3BFAFE948F3109S8dD2DC08A5 2453491448 Rogers.Cable 2016-01-28 02:05:59 The Cobbler
174.112.37.227 6SS08 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AO-JYK CCFAB212F02F0BB3BFAFE948F3109580D2DC08|A5 2453491448 Rogers Cable 201602-03 04:32:15 The Cobbler
174.112.37.227 64774 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02F0BB3BFAFE948B109580D2DC0?A5 2453491448 Rogers Cable 2016-03-10 02:37:04 The Cobbler
174.112.37.227 54009 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02F0BB3BFAFE948F3109580D2DCO8A5 2453491448 Rogers Cable 201603-10 03:39:15 The Cobbler
174.112.37.227 59177 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212FO2FOSB3BFAFE948F3109580D2DC0&A5 2453491448 Rogers Cable 201603-10 04:3650 The Cobbler
174.112.37.227 60098 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x2S4 AC3-JYK CCFAB212F02FOBB3BFAFE948F3109580D2DC08A5 2453491448 Rogers Cable 201603-10 04:39:21 The Cobbler
174.112.37.227 55136 bt pTorrent 3.45 The Cobbler 2014 720p WEB-DL x264 AC3-JYK CCFAB212F02FOBB3BFAFE948F310958GD2DC08AS 2453491448 Rogers Casle 201603-10 05:40:49 The Cobbler
174.112.37.227 51619 bt pTorrent 3.4.5 The Cobbler 2014720p WEB-DL x264 ACB-JYK CCFAB212F02F08B3BFAFE948F310958pD2DC08A5 2453491448 Rogers Cable 201603-24 05:25:06 The Cobbler
174.112.37.227 S1668 bt pTorrent 3.4.5 The Cobbler 2014 720p WEB-DL x264 ACB-JYK CCFAB212F02F0BB3BFAFE948F310958bD2DCO8A5 2453491448 Rogers Cable 201603-24 05:25:15 The Cobbler
31
Notariat 6 Karlsruhe 6 UR 790 / 20-16

Kaiserstr. 184, 76133 Karlsmhe, Tel. 0721 / 9 26-51 57, Telefax 07 21 /16 08 93 73
^2
TABS
SIMPLIFIED ACTION
FEDERAL COURT
BETWEEN:
VOLTAGE PICTURES, LLC, COBBLER NEVADA, LLC, PTG NEVADA,

LLC, CLEAR SKIES NEVADA, LLC, GLACIER ENTERTAINMENT S.A.R.L.
OF LUXEMBOURG, GLACIER FILMS 1, LLC, and FATHERS &
DAUGHTERS NEVADA, LLC
Applicants
- and -
ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed

representative Respondents
Respondents
MEMORANDUM OF FACT AND LAW

(Certification)
33
Table of Contents
Overview................................................................................................................. 34
Part I — Facts........................................................................................................ 41
A. Summary of Internet Copyright Infringement..................................... 41
B. The Parties and the Works.................................................................... 42
C. The BitTorrent Protocol Allows for the “Sharing” of Computer Files,
Such as the Works............................................................................................ 43
D. The Forensic Software Monitors Copyright Infringements............... 43
E. Mr. Salna was identified as his internet account was found to have
been offering to upload all of the Works........................................................ 44
F. The Respondents as a proposed class will typically fall into one of
two categories of infringer................................................................................ 45
G. Common Issues Definition..................................................................... 46
Part II — Issues..................................................................................................... 48
Part III — Submissions......................................................................................... 48
A. The Proceeding Should Be Certified........................................................ 48
1. The pleadings disclose a reasonable cause of action.................... 49
2. There is an identifiable class of two or more persons..................... 52
3. The claims of Voltage as against the proposed class members
raise common questions of fact and law..................................................... 54
4. A class procedure is the preferable procedure................................ 59
5. There is an appropriate representative respondent.........................61
6. Litigation Plan....................................................................................... 61
Part IV — Order Sought........................................................................................ 62
Part V — List of Authorities...................................................................................64
Appendix 1 - Litigation Plan.................................................................................65
Appendix 2 - Sample Certification Notice...........................................................71
34
Overview
1. The Applicants (collectively, “Voltage”) seek damages in the underlying
application for copyright infringement of their respective films (collectively, the
“Works”). This infringement is being committed en masse on the internet
through the BitTorrent protocol. Many thousands of infringements have
occurred.
2. This motion seeks the certification of the underlying application as a
class proceeding, with the class being a class of respondents (as opposed to
a plaintiff class). Certifying this proceeding will be drastically more efficient in
terms of time, money, and judicial resources than would otherwise be the case
- i.e., if thousands of respondents were named personally in separate
proceedings.
3. Certifying the proceeding will permit a single trial of the common issues,
such as the subsistence of copyright, as well as issues relating to the ownership
of copyright and infringement of same. All of these issues would need to be
proven repeatedly should separate proceedings be necessitated.
4. Any concerns that the certification will lead to an abusive process can
be alleviated through the mechanisms set out herein, and through the
supervision by the Court. The matter will either proceed to a hearing on the
merits, or will be subjected to a Court-supervised settlement. Those with
special circumstances or who otherwise do not wish to be part of the class
proceeding can opt-out and proceed to their own hearing on the merits. As
35
described in more detail below, opting-out is intended to be a safety valve for
those with exceptional circumstances.
5. The primary driver for choosing a class proceeding rather than mass
litigation is the minimization of the barriers to enforcement of low-value
infringements. The process should keep costs low for both owners and
infringers, thereby enabling reasonable damages to be awarded that are
proportionate to the harm caused.
6. The type of film piracy in this proceeding is not (generally) thought to be
of a commercial nature - it is primarily non-commercial. The statutory damages
regime for non-commercial infringements allows for a damages range of $100
to $5,000, plus costs. The cost of litigation being what it is, there is little
incentive for film producers (being the copyright owners) to pursue judicial
intervention to curb the mass infringement of their works given the scope of
legal expenses, or for that matter, the time and effort involved in litigation
generally.
7. Similarly, infringers in individual actions can be faced with
disproportionate legal or other expenses in order to defend themselves.
Spreading the cost of litigation over many defendants is in all of the parties’
bests interests.
8. Ideally, the class proceeding will permit copyright owners whose works
have been infringed online to seek appropriate compensation from infringers,
with damages being more like a speeding ticket, and yet still be able to recover
appropriate compensation for the use of their work, as well as their legal
36
expenses. A speeding ticket-sized award will deter infringers, but it will not
break the bank.
9. If specific infringers feel that even the “speeding ticket” is unfair, they
may choose to opt-out of the process and pursue their own defence, in an
independent (or mass) proceeding, or they may negotiate with the copyright
owners in order to tailor remedies to their individual situations. For example, if
an infringer was hacked, even a speeding ticket might not be fair. In our
experience, however, the vast majority of infringements are deliberate -
infringers avoid paying for their entertainment because they do not have any
expectation of adverse consequences for doing so due to the issues noted
above.
10. The opting-out process will therefore serve as a “safety valve”, allowing
for special cases (such as instances of hacking) to be appropriately dealt with,
while the typical case of intentional infringement will be dealt with summarily.
11. Voltage’s proposed litigation process following certification (“Litigation
Plan”) can be summarized as follows (see also Appendix 1 forfulsome litigation
plan):
a. an order would issue certifying the proceeding against the as yet
anonymous Respondent Class (defined below);
b. known members of the Respondent Class are sent a notice of
certification including a text reproduction of the certification order
(“Certification Notice”) through their ISPs’ automated Notice &

37
Notice system (i.e. by means of automated systems utilized by
ISPs by reference to particular Respondent Class member’s IP
address along with the date and time of infringement, thus
preserving the anonymity of that member’s identity at this
juncture);
(i) the Certification Notice would provide the details of the
date and time of infringement of the specific Work(s) in
question, the certification of the matter, and the
information on obtaining legal counsel to assist with the
matter;
(ii) the Certification Notice would also provide for an email
address for each Class Respondent to contact in order to
provide any evidence of mitigation of damages following
receipt of Notice {e.g. ceasing the infringement of the
Work);
(iii) the Certification Notice would include means for opting-out
at this stage and being named as individual respondents
for future determination at separate hearing on merits
following main hearing on merits;
(iv) an option provided to Respondent Class to remain as part
of class but to reserve right to opt-out after hearing on
merits is determined, or conversely, to opt back in to class

38
on determination of hearing on merits (e.g. on
determination of the quantum of damages);
(v) notice provided that any individual claim would be
determined after hearing and determination of common
issues;
(vi) relevant ISPs to be ordered to retain data on identities of
their subscribers until following final determination of the
hearing on the merits (including any appeals);
(vii) identities of subscribers not to be determined or requested
until after any successful hearing on the merits in order to
protect subscriber privacy interests;
c. Respondent Class further narrowed by “positive responses” from
ISPs confirming that the Certification Notice has been sent to the
particular Respondent Class members;
d. schedule to be set for evidence and cross-examinations for the
hearing on the merits, and any preliminary motions in respect
thereof to be determined by Case Management Judge;
e. hearing on merits held;
f. following hearing on the merits, order to issue against
Respondent Class members on common issues or case to be
dismissed (“Hearing Order”);

39
g. Respondent Class members to be sent notice of the Hearing
Order through Notice & Notice system (“Order Notice”);
(i) Respondent Class members may opt-out of proceeding at
this time and be named as individual respondents if
special circumstances are provided;
(ii) Class Members may agree to pay damages award (if any)
without being publicly named to class proceeding; and
(iii) Class Members that do not respond to Order Notice to be
identified by relevant ISP and enforcement proceedings
may be brought against them once personal service by
registered mail has been effected;
h. once identified by an ISP (by name and address), Respondent
Class members to be served with the Order Notice by registered
mail (not by Notice & Notice system);
i. Case Management Conference to be held following the Order
Notice to set the schedule for dispute resolution hearing, and/or
individual or group hearings on the merits for Respondent Class
members who have opted-out (“Individual Respondents”);
(i) Applicants may be bound by any relevant or applicable
findings of hearing Judge in original hearing (e.g.
ownership of copyright);
40
(ii) Applicants’ evidence in individual hearings to be the same
as for original hearing on the merits, including cross-
examinations;
(iii) Individual Respondents to file their own evidence in
response by right on their special circumstances;
(iv) Applicants file any reply evidence only in respect of special
circumstances or as otherwise permitted with leave of the
Case Management Judge;
(v) Individual Respondents may seek leave to perform further
cross-examinations of Applicants on main evidence, may
cross-examine by right on any reply or supplemental
evidence;
(vi) Applicants may cross-examine Individual Respondents by
right on evidence of special circumstances;
(vii) Schedule for hearing on merits to be set by Case
Management Judge; and
(viii) If applicable, Orders to issue individually to Individual
Respondents.
12. The Class Respondents would comprise the individuals whose internet
accounts had been detected by Voltage’s forensic software as offering to
upload the Works during the prior six month period. Six months was chosen
as ISPs are required to keep information for that period of time under the
41
provisions of s. 41.26(1)(b) of the Copyright Act. It may be that some class
members may be identifiable prior to that time, but this time frame was chosen
in order to avoid needless work by the ISPs who may not be retaining data past
six months (being the statutory minimum amount of time). Class Respondents’
mitigation efforts following receipt of the Certification Notice may be considered
in arriving at appropriate damages.
Part I — Facts
A. Summary of Internet Copyright Infringement
13. The internet is now sufficiently powerful to easily transfer movies from
one person to another. This has disrupted traditional methods of distribution
and has caused widespread infringement of films.
14. Distributing movies over the internet, without authorization, is a
copyright infringement. Often, the sole purpose of distributing movies in this
fashion is so consumers can view films free of charge, which unlawfully
deprives the films’ makers compensation for their work.
15. Voltage has been tracking online piracy of their movies for some time,
using customized software to track such infringements. Utilizing this custom
software, Voltage has been able to link individuals to infringements by his (or
her) unique internet protocol (“IP”) address. An IP address is traceable to the
infringer through their respective ISP.1
1 To give a sense of the scope and scale of the infringements, originally as at the date of the
Notice of Application, approximately 55,000 IP addresses were located that were offering to
distribute the Works through the BitTorrent Protocol. As at the date of this document,
42
Affidavit of Benjamin Perino, affirmed June 3, 2019 at

para 2(t) (“Perino Affidavit”), Motion Record of the
Applicants (“MRA”), Tab 2A.
B. The Parties and the Works
16. The Applicants are movie production companies forming part of the
Voltage Studios group of companies. In or around November of 2015, Voltage
was using a software product to assist in identifying online copyright
infringement of its films through peer to peer (or person to person) networks
(“P2P” networks). A P2P network is a network between unrelated individuals,
as opposed to a network that has a central hub or “server”.
Perino Affidavit at para 2, Exhibit “A” at paras 3, 7, MRA,

Tab 2A, Pages 17,18.
17. The relevant movies for the underlying application (/.e. the Works), are
set out below. The relevant Voltage party who owns the copyright in each film
is also listed in the table below.
# Title Owner
1. THE COBBLER COBBLER NEVADA, LLC
2. PAY THE GHOST PTG NEVADA, LLC
3. GOOD KILL CLEAR SKIES NEVADA,

LLC
4. FATHERS AND FATHERS & DAUGHTERS
DAUGHTERS NEVADA, LLC
5. AMERICAN HEIST GLACIER FILMS 1, LLC and
GLACIER
ENTERTAINMENT S.A.R.L.
of LUXEMBOURG
approximately 2,000 unique IP addresses were detected offering to distribute the Works in six
months immediately prior.
43
Perino Affidavit at para 2, Exhibit “A” at para 4, MR A,

Tab 2A, Page 17.
18. Through the above-noted custom software, the Applicants were able to
identify numerous instances of the Works being offered for upload and
distributed using P2P networks using the “BitTorrent” protocol.
Perino Affidavit at para 2, Exhibit “A” at para 6, MRA,

Tab 2A, Page 18.
C. The BitTorrent Protocol Allows for the “Sharing” of Computer
Files, Such as the Works
19. A user who wishes to “share” a computer file (e.g. a motion picture) with
other users of the BitTorrent software places that computer file in a computer
location (folder) that is known to the specific software that is running the
BitTorrent protocol. The BitTorrent software then offers that file for download
to anyone who is using compatible BitTorrent software and who requests that
particular file.
Perino Affidavit at para 2(d), MRA, Tab 2, Page 9.
D. The Forensic Software Monitors Copyright Infringements
20. Voltage hires consultants that use software that has been purpose-built
to track P2P/BitTorrent “sharing”. Given that the BitTorrent protocol is an open
and shared network (i.e. the users publicly broadcast to the internet what they
are doing/offering), it is not difficult for the software to determine who at any
particular time is offering for upload one of the designated works by reference
44
to their IP address. No other information about the person assigned such IP
address is available without the assistance of the relevant ISP.
Perino Affidavit, at para 2(q), MRA, Tab 2, Page 12.
21. In all cases, the forensic software used by Voltage will have detected
the following:
a. an infringer will have broadcast to the internet that he or she has
a Work available for downloading;
b. the forensic software will have sampled the work being offered
for downloading in order to determine that it is in fact a Work (and
not a computer file with the same name as a Work); and
c. safeguards will have been taken to ensure that the IP address of
the infringer is stable and accurate.
E. Mr. Salna was identified as his internet account was found to
have been offering to upload all of the Works
22. In this proceeding, the IP address 174.112.37.227 was traced by Rogers
and Mr. Salna, one of the proposed representative respondents, was identified
by Rogers as being the owner of the internet account assigned this IP address
at the relevant times. This IP address was chosen from thousands of possible
choices as it contained frequent samples that would ensure that it was reliable,
and was a user who was offering for upload all of the Works.
Perino Affidavit, at paras 2(t)-(u), MRA, Tab 2, Page 13.

45
23. Mr. Salna claimed that it was his tenants who were performing the
unlawful activities. He later identified the other two proposed representative
respondents, Mr. Rose and Ms. Cerrelli, as being the tenants who had access
to his internet account during the relevant time.
Affidavit of Robert Salna, sworn June 7, 2019 (“Salna

Affidavit”), Exhibit “A”, Responding Record of the
Respondent [RRR], Tab 1A, Page 5.
24. Mr. Salna was notified that the infringements were taking place but has
taken no action to monitor who is using his internet account, or what they are
doing on it, even after notice was been given.
Salna Affidavit, Exhibit “A”, RRR, Tab 1A, Page 5.
F. The Respondents as a proposed class will typically fall into one
of two categories of infringer
25. The underlying application concerns three types of unlawful acts
(collectively, the “Unlawful Acts”):
1) Making a Work available for download by means of the BitTorrent
network by offering the file for uploading, or actually uploading a
work;
2) Advertising by way of the BitTorrent Protocol that a Work was
available for download;
3) Failing to take reasonable steps to ensure that Unlawful Acts 1 and
2 did not take place in respect of an internet account controlled by a
subscriber and by doing so authorizing such Unlawful Acts.

46
26. Each person identified by Voltage’s forensic software will be a person
whose internet account was not only detected offering a Work for upload, but
the infringing file being offered will have been sampled to ensure that it is fact
the Work being offered for upload.
27. Voltage will submit in the hearing on the merits that each Respondent is
liable for copyright infringement of the Works on at least one of two theories:
a) “Direct Infringers” — Persons who performed one or more of
Unlawful Acts 1 or 2 or who have unlawfully copied a Work; or
b) “Authorizing Infringers” — Persons who have performed Unlawful
Act 3 and therefore have authorized an unlawful copy of a Work.
28. Authorizing Infringers may further be defined those Class Respondents
who have been notified that their internet has been used to unlawfully distribute
one or more of the Works, and took no step to rectify such infringement.
G. Common Issues Definition
29. Voltage submits that the Common Issues in this matter are as follows:
(i) Are each of the Works original cinematographic works in which

copyright subsists?
(ii) Does the relevant Applicant own the copyright in the appropriate
Works?
a. acts that by the Copyright Act only the owner of the

copyright has the right to do;
47
b. acts that are listed in paragraphs 27(2)(b) to (d) of the

Copyright Act and that the Respondents knew or should
have known infringes copyright; or
(iv) Do the Unlawful Acts constitute offering a Work by

telecommunication contrary to the provisions of the Copyright Act?
(v) Did any of the Applicants consent to or authorize any of the

Unlawful Acts?
i. possess sufficient control over the use of their internet

accounts and associated computers and internet devices
such that they authorized, sanctioned, approved or
countenanced the infringements as particularized in
Unlawful Acts 1 or 2;
ii. require prior notice to be found liable for authorization. If

notice is necessary, is notice by way of an agreement with
their Internet Service Provider sufficient to engage their
liability for the acts of the Direct Infringers, or is specific
direct notice necessary?
iii. receive notice of infringement. If the Internet Account

Subscribers were provided with notice, but they ignored
such notice, does that constitute authorization of copyright
infringement. Is willful blindness sufficient to constitute
authorization of copyright infringement.
Defences
(vii) Does the Class have any available defences to copyright

infringement, including any defence based on fair dealing?
Relief
(viii) What is an appropriate quantum of statutory damages available

pursuant to section 38.1 of the Copyright Act,
(collectively, the “Common Issues”)

48
Part II — Issues
30. The points in issue in this motion are:
a. whether this application should be certified as a class proceeding
under the provisions of Rule 334.16; and if so,
b. the form of order that should issue under Rule 334.17.
Part III — Submissions
A. The Proceeding Should Be Certified
31. In its essence, this motion is whether it is better to have one test case
to determine the issues regarding online infringement in Canada, or if it is better
to have multiple such cases.
32. Rule 334.162 mandates that a case must be certified if the requirements
of that Rule are fulfilled. The Supreme Court of Canada has held that
certification of class proceedings is desirable as a general principle, and that
undue burdens should not be raised to deny certification.
Hollick v. Metropolitan Toronto (City), 2001 SCC 68 at

para 15 (“Hollick”), Applicants’ Book of Authorities
(“ABOA”), Tab 3.
Vivendi Canada Inc. v. DelTAniello, 2014 SCC 1 at para
37 (“VivendP’), ABOA, Tab 4.
33. The Rule 334.16(1) requirements are:
a) the pleadings must disclose a reasonable cause of action;
b) there is an identifiable class of two or more persons;
2 As modified appropriately for a respondent class in accordance with Rule 334.14(3).

49
c) the claims of Voltage as against the class members raise common
questions of law or fact, whether or not those common questions
predominate over questions affecting only individual members;
d) a class proceeding is the preferable procedure for the just and
efficient resolution of the common questions of law or fact;
e) there is an appropriate representative respondent; and
f) Voltage must have prepared a plan for the proceeding that sets out
a workable method of advancing the proceeding against the interests
of the Respondent Class.
34. Each of these conditions has been satisfied. The Court has no
discretion to refuse to certify a class proceeding if the statutory conditions are
met. As such, the proceeding should be certified as a class proceeding.
Manage v. Canada, 2008 FC 624 at para 24, ABOA, Tab

5.
1. The pleadings disclose a reasonable cause of action
35. The threshold that Voltage must meet in order to establish a reasonable
cause of action is very low. Certification should only be refused if Voltage’s
case has no chance of success, even if the facts alleged in the notice of
application are true.
Jones v. Canada (AG), 2015 FC 1372 at para 17, ABOA,

Tab 6.
36. Voltage are movie production companies that own the copyright in their
respective Works. They are entitled to enforce their copyright.

50
37. Voltage has pleaded that each of the Respondent Class members have
distributed unauthorized copies of the Works over the Internet, by performing
the Unlawful Acts. The Supreme Court of Canada in this very proceeding has
held that this uploading of the Works amounts to illegal sharing of copyrighted
content. In other words, the cause of action against Direct Infringers is clearly
proper.
Rogers Communications Inc. v. Voltage Pictures, LLC,

2018 SCC 38 at para 1 [Rogers], ABOA, Tab 7.
38. Further, the Supreme Court has discussed the issues regarding
otherwise innocent third parties whose internet infrastructure is being used to
infringe copyright in the 2004 SOCAN case (“CAIP"). In that case, internet
providers’ liability for copyright infringement for reproductions taking place on
their networks was the issue. The question was whether an ISP being aware
that infringement could be happening on their network constituted authorization
of copyright infringement (which is itself copyright infringement - see e.g. para.
120 of CAIP). The Supreme Court of Canada held that in certain
circumstances, failing to respond to take down infringing content once notified
that the infringement was taking place would lead to a finding of copyright
infringement through authorization.
Society of Composers, Authors & Music Publishers of

Canada v. Canadian Association of Internet Providers,
2004 SCC 45 at paras 110,120,127-28, ABOA, Tab 8.
39. In this matter, the proposed Respondent Class will be comprised entirely
of either Direct Infringers or Authorizing Infringers. The Authorizing Infringers

51
will be persons who have permitted others to use their internet accounts to
commit copyright infringement, in particular after having been notified through
the Notice and Notice system that their accounts have been used to commit
the Unlawful Acts.
40. The questions relating to what constitutes sufficient authorization will
have to be addressed at the hearing on the merits. For example, is prior notice
of actual infringement necessary to constitute an authorization of infringement?
Another question may be whether the ISPs’ contract with their subscriber, such
as Mr. Salna, is sufficient to impose a duty on the subscriber to prevent unlawful
use of their internet. There is no question, however, that authorizing copyright
infringement is a reasonable cause of action for copyright infringement.
41. Who, exactly, is committing the infringement is part of the factual and
technological matrix that will need to be determined at a hearing on the merits.
Parliament implemented the 2012 amendments to the Copyright Act in order to
try to pierce the technological veil of the internet to allow easy identification of
infringers and provide copyright owners with less costly and more effective
ways to enforce their copyright, while simultaneously lowering the cap of
statutory damages for such infringement to balance the rights of owners and
users. It is therefore possible for a copyright owner to quickly and efficiently
identify internet subscribers and compel them to cease infringing copyright, or
have them take measures to ensure that their internet account is not being
used to infringe copyright.

52
46. “the notice and notice regime should be interpreted

so as “to allow copyright owners to protect and
vindicate their rights as quickly, easily and efficiently as
possible while ensuring fair treatment of all”. [...]
Indeed, given the rapidity with which copyrighted
content is shared via simultaneous downloading and
uploading on peer to peer networks, inaccurate
identification might hollow out those rights altogether.
The purpose of s. 41.26(1)(b) is to allow for identification
when an ISP is required to do so by court order.
Rogers, supra at para 46, ABOA, Tab 7.
42. It is Voltage’s position that internet subscribers cannot be wilfully blind
as to what their internet accounts are being used for. While it may well be that
the owner of the account may not be sophisticated, there is a legal obligation
to not sit by and fail to be reasonably informed as to the uses that are being put
to their internet account. A wilfully blind person is a person who has been put
on notice by the surrounding facts, but chooses to engage in purposeful,
strategic ignorance with a view to avoiding liability. In this case, it will be argued
that the wilful blindness occurs when “free movies” are being watched by the
subscriber or others around them, which should raise suspicions and further
inquiry.
For discussions on wilful blindness in a civil context

see Wescom v. Minetto, 2017 ONSC 249, ABOA, Tab 9.
43. It is therefore submitted that Voltage has a sufficient factual and legal
basis for their claims in the pleadings and have disclosed a reasonable cause
of action.
2. There is an identifiable class of two or more persons
44. There are three criteria for finding the existence of an “identifiable class”:
53
1) the class must be defined by objective criteria;
2) the class must be defined without reference to the merits of the
application; and
3) there must be a rational connection between the common issues and
the proposed class definition.
Paradis Honey Ltd. v. Canada, 2017 FC 199 at para 23,

ABOA, Tab 10 {“Paradis”), citing Hollick, supra, ABOA,
Tab 3 (“Hollick”).
45. The class must be defined sufficiently narrowly such that the three
criteria of an “identifiable class” are met. However, Voltage’s burden is not
onerous and does not need to show that “everyone in the class shares the
same interest in the resolution of the asserted common issue”. Rather, Voltage
need only show that the class is not unnecessarily broad.
Paradis, supra at para 24, ABOA, Tab 10.

Hollick, supra at para 21, ABOA, Tab 3.
46. Voltage has proposed the following class definition: all persons residing
in Canada who are Direct Infringers or who are Authorizing Infringers, or both.
47. Each member of the proposed class definition has been detected
committing copyright infringement in the same manner - namely their internet
account was offering to upload (e.g. distribute) at least one Work to the public
without colour of right. Each class member will have been sent a notice as set
out in paragraph 11.b, above, that would inform them of the infringing activity
taking place on their account, and allow for them to mitigate their actions. Each
unlawful offer to distribute will be verified by the forensic software as being an
Unlawful Act in respect of a Work.

54
48. The issues regarding subsistence of copyright, ownership of copyright,
and the acts that constitute infringement are identical for each proposed class
member.
49. A particular class member may be either a Direct Infringer or an
Authorizing infringer. From a technological perspective, it is impossible to know
which type of infringer the class member would be when the infringement is
first detected. However, it is not necessary to know which type they are,
because in either case they would be liable for copyright infringement either
directly, or as an someone who has authorized the infringement.
50. This is an appropriate class definition as it is defined by objective criteria,
is defined without reference to the merits of the application and has a rational
connection between the common issues and the proposed class definition.
3. The claims of Voltage as against the proposed class
members raise common questions of fact and law
51. The underlying question to whether the claims raise common questions
of fact and law is whether allowing the suit to proceed as a class proceeding
would avoid duplication of fact-finding or legal analysis. It is not necessary for
common issues to predominate non-common issues or for the resolution of
common issues to be determinative of the suit. Rather, the claims against the
class members must share a substantial common ingredient that would justify
a class action.
Western Canadian Shopping Centres Inc. v. Dutton,

2001 SCC 46 at para 39, ABOA, Tab 11.
55
52. A question is a common question if it can serve to advance the resolution
of the suit against each class member. The common question does not require
an identical answer for all members of the class or for the answer to benefit
each class member equally.
Vivendi, supra at para 46, ABOA, Tab 4.
53. The commonality requirement is the central notion of a class
proceeding. Litigants with common concerns should be able to resolve these
common concerns in a single central proceeding rather than an inefficient
multitude of repetitive proceedings.
Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013

SCC 57 at para 106 (“Pro-Sys”), ABOA, Tab 12.
54. The standard of proof for satisfying the commonality requirement is low.
Voltage must only show “some basis in fact” to support the proposed common
questions. “Some basis in fact” is a lower standard than “balance of
probabilities", as the Court does not have to resolve conflicting facts or
evidence at the certification stage. This standard only requires that there are
“sufficient facts to satisfy the applications judge that the conditions for
certification have been met to a degree that should allow the matter to proceed
on a class basis without foundering at the merits stage”.
Pro-Sys, supra at paras 99,102,104.
55. In the notice of motion, Voltage identified the following nine issues of
fact or law to be decided by a class proceeding:

56
(i) Are each of the Works original cinematographic works in
which copyright subsists?
(ii) Does the relevant Applicant own the copyright in the
appropriate Works?
a. acts that by the Copyright Act only the owner of the
copyright has the right to do;
b. acts that are listed in paragraphs 27(2)(b) to (d) of the
Copyright Act and that the Respondents knew or should
have known infringes copyright; or
(iv) Do the Unlawful Acts constitute offering a Work by
telecommunication contrary to the provisions of the Copyright
Act?
(v) Did any of the Applicants consent to or authorize any of the
Unlawful Acts?
a. possess sufficient control over the use of their internet
accounts and associated computers and internet devices
such that they authorized, sanctioned, approved or
countenanced the infringements as particularized in
Unlawful Acts 1 or 2;
57
b. require prior notice to be found liable for authorization. If
notice is necessary, is notice by way of an agreement with
their Internet Service Provider sufficient to engage their
liability for the acts of the Direct Infringers, or is specific
direct notice necessary?
c. receive notice of infringement. If the Internet Account
Subscribers were provided with notice, but they ignored
such notice, does that constitute authorization of copyright
infringement. Is willful blindness sufficient to constitute
authorization of copyright infringement.
Defences
(vii) Does the Class have any available defences to copyright
infringement, including any defence based on fair dealing?
Relief
(viii) What is an appropriate quantum of statutory damages
available pursuant to section 38.1 of the Copyright Act,
56. Questions (i) and (ii) (copyright subsistence and ownership of copyright)
concern five different works, each owned by a different Voltage entity. These
two questions, for one of the Works, are common to each Respondent that
Voltage alleges infringed said work. Although the answer to questions (i) and
(ii) for all five Works will not be relevant to each of the Respondents, there is
58
no requirement for the answers to the common question to benefit ail of the
Respondents equally.
57. Questions (iii), (iv) and (v) (copyright infringement and authorization of
same) are legal questions based on the same factual matrix common to all
proposed class members. Voltage alleges the Respondents’ infringing
activities are essentially identical: a person made available and offered to
upload unauthorized copies of the Works. This question is relevant to both
Direct Infringers and Authorizing Infringers, since Authorizing Infringers could
only be found to have authorized copyright infringement if the underlying
activity is considered copyright infringement in law. Therefore, these three
questions are common to all Respondents.
58. Question (vi) comprises legal questions that are relevant to all
Authorizing Infringers. Like question (i) and (ii), the fact that question (vi) is not
relevant to all of the Respondents (such as Direct Infringers) is not a barrier to
certification of the proceeding.
59. Question (vii) (defences to copyright infringement) is a question of mixed
fact and law that is based on the same fact scenario. It is Voltage’s position
that fair dealing is not available as a defence (although technically not a
“defence” but a user’s right) as the Works are being offered to third parties for
copying, and are not being “used” by the infringer at all. While it is possible
that there could be a defence that the subscriber was hacked or was mis-
identified in some way, these issues generally are the same as those put
forward by the proposed Representative Respondents (i.e. that they did not do
59
it). As such, any analysis of available defences be very similar between each
Respondent. If there are unusual circumstances beyond the ordinary, a class
member could opt-out of the proceeding and have an individualized hearing
based on those specific defences.
60. The answers to questions (viii) and (ix) (quantum of damages and
injunction remedies) may well vary between different Respondents, as the
quantity and extent of infringing activities varies. However, Voltage intends to
request the same quantum of statutory damages from each class member and
are not going to be seeking actual damages. The goal is to obtain a fair
quantum in the order of magnitude of a serous speeding ticket as against each
Respondent. Again, if this quantum is not appropriate, Voltage is requesting
that the Court permit class members to opt out of the matter after the
appropriate quantum of statutory damages has been assessed.
61. The Court’s analysis as to whether an injunction is appropriate would
likely be applicable to the entire class.
62. It is therefore submitted that all of the issues in this Application can be
determined as common questions of law and fact and that a single hearing on
the merits can decide the fairly for all class members, with a safety valve
existing for those who may truly have exceptional circumstances.
4. A class procedure is the preferable procedure
63. In deciding whether a class procedure is the preferable procedure, the
Court must determine whether other available means of resolving the claim are
60
preferable or relatively advantageous over a class proceeding. This includes
considering both litigation and non-litigation alternatives.
AIC Limited v. Fischer, 2013 SCC 69 at para 19-23,

ABO A, Tab 13.
64. The Supreme Court of Canada has held that Parliament intended the
Notice and Notice regime “to allow copyright owners to protect and vindicate
their rights as quickly, easily and efficiently as possible while ensuring fair
treatment of all”.
Rogers, supra at para 46, ABOA, Tab 7.
65. Certification of the class is consistent with this goal. Hearing all of the
applications simultaneously minimizes the costs of both Voltage and the
Respondents. It also reduces the strain on the Court’s judicial resources by
reducing the number of proceedings and reducing the need for additional
judges, courtrooms and court staff. A single hearing on the common issues
also ensures consistent factual and legal findings between the applications.
66. If the Respondents have unique issues to raise, all Respondents would
retain the right to opt-out of the class and have their issues heard separately.
67. As set out in the Litigation Plan, any class members that wished to opt-
out would be part of a case managed proceeding that would permit these
relatively low-value cases be determined by way of dispute resolution
conference, or group hearing, as the case may be.

61
5. There is an appropriate representative respondent
68. The proposed Representative Respondents are typical, in that they are
not keen to be defendants in a copyright infringement action. Even were they
to opt out, they would still be subject to a claim for copyright infringement and
would have to proceed to a hearing on the same facts and the same law. Mr.
Salna’s internet account was the sole account out of thousands that was found
to have been simultaneously offering for upload all of the Works. He blamed
the infringement on his tenants, the other Proposed Representative
Respondents, and they too have denied that they are responsible (although
one admitted to using BitTorrent software).
Affidavit of James Rose, sworn June 10, 2019, at para 6,

RRR, Tab 2, Page 49.
6. Litigation Plan
69. The Litigation Plan summarized paragraph 11 and set out more
fulsomely in Appendix “1” set out a detailed procedure that Voltage proposes
be used to minimize any potential abuse of the system and yet provide the
parties with a cost-effective method to proceed to trial for these low-value,
mass infringements.
62
Part IV — Order Sought
70. Voltage requests that this application be certified as a class proceeding,
and that an order be issued certifying this motion as set out above. Voltage
intends to present a form of draft order to the Court prior to the hearing that
addresses any concerns that the Respondents may raise in their responding
materials.
September 9, 2019
Brookfield Place
181 Bay Street, Suite 1800
Toronto, Canada M5J 2T9
Kenneth R. Clark
Patrick Copeland
Tel: 416.865.1500
Fax: 416.863.1515

Federal Court
Toronto, ON M6C 2E3
Sean N. Zeitz
Tel: 416.789.0652
Fax: 416.789.9015

63

Common Law Section
Ottawa, ON K1N6N5
David Fewer
Tamir Israel
Tel: 613.562.5800 ext. 2558

Fax: 613.562.5417

Part V — List of Authorities
Rules and Statutes
1. Copyright Act, R.S.C. 1985, c. C-42, s. 41.26(1 )(b).

2. Federal Courts Rules, SOR/98-106, rr. 334.14(3), 334.16, 334.17.
Authorities
3. Hollick v. Metropolitan Toronto (City), 2001 SCC 68.

4. Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1.
5. Manuge v. Canada, 2008 FC 624.
6. Jones v. Canada (AG), 2015 FC 1372.
7. Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38.
8. Society of Composers, Authors & Music Publishers of Canada v.
Canadian Association of Internet Providers, 2004 SCC 45.
9. Wescom v. Minetto, 2017 ONSC 249.
10. Paradis Honey Ltd. v. Canada, 2017 FC 199.
11. Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46.
12. Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57.
13. AIC Limited v. Fischer, 2013 SCC 69.
TAB 1
65
Appendix 1 - Litigation Plan
The attached litigation plan is in accordance with para. 8 of the Notice of
Motion as presented to the Court except to the extent that paras. 8(a) and (b)
are now moot given that CIPPIC has been granted leave to intervene in the
process and the Mr. Rose and Ms. Cerrelli have been added as class
respondents. The litigation plan is set out here, and discussion regarding it is
set out below the list below.
a. an order would issue certifying the proceeding against the as yet
anonymous Respondent Class (defined below);
b. known members of the Respondent Class are sent a notice of
certification including a text reproduction of the certification order
(“Certification Notice") through their ISPs’ automated Notice &
Notice system (i.e. by means of automated systems utilized by
ISPs by reference to particular Respondent Class member’s IP
address along with the date and time of infringement, thus
preserving the anonymity of that member’s identity at this
juncture);
(i) the Certification Notice would provide the details of the
date and time of infringement of the specific Work(s) in
question, the certification of the matter, and the
information on obtaining legal counsel to assist with the
matter;
66
(ii) the Certification Notice would also provide for an email
address for each Class Respondent to contact in order to
provide any evidence of mitigation of damages following
receipt of Notice (e.g. ceasing the infringement of the
Work);
(iii) the Certification Notice would include means for opting-out
at this stage and being named as individual respondents
for future determination at separate hearing on merits
following main hearing on merits;
(iv) an option provided to Respondent Class to remain as part
of class but to reserve right to opt-out after hearing on
merits is determined, or conversely, to opt back in to class
on determination of hearing on merits (e.g. on
determination of the quantum of damages);
(v) notice provided that any individual claim would be
determined after hearing and determination of common
issues;
(vi) relevant ISPs to be ordered to retain data on identities of
their subscribers until following final determination of the
hearing on the merits (including any appeals);

67
(vii) identities of subscribers not to be determined or requested
until after any successful hearing on the merits in order to
protect subscriber privacy interests;
c. Respondent Class further narrowed by “positive responses” from
ISPs confirming that the Certification Notice has been sent to the
particular Respondent Class members;
d. schedule to be set for evidence and cross-examinations for the
hearing on the merits, and any preliminary motions in respect
thereof to be determined by Case Management Judge;
e. hearing on merits held;
f. following hearing on the merits, order to issue against
Respondent Class members on common issues or case to be
dismissed (“Hearing Order”);
g. Respondent Class members to be sent notice of the Hearing
Order through Notice & Notice system (“Order Notice”);
(i) Respondent Class members may opt-out of proceeding at
this time and be named as individual respondents if
special circumstances are provided;
(ii) Class Members may agree to pay damages award (if any)
without being publicly named to class proceeding; and
(iii) Class Members that do not respond to Order Notice to be
identified by relevant ISP and enforcement proceedings

68
may be brought against them once personal service by
registered mail has been effected;
h. once identified by an ISP (by name and address), Respondent
Class members to be served with the Order Notice by registered
mail (not by Notice & Notice system);
i. Case Management Conference to be held following the Order
Notice to set the schedule for dispute resolution hearing, and/or
individual or group hearings on the merits for Respondent Class
members who have opted-out (“Individual Respondents”);
(i) Applicants may be bound by any relevant or applicable
findings of hearing Judge in original hearing (e.g.
ownership of copyright);
(ii) Applicants’ evidence in individual hearings to be the same
as for original hearing on the merits, including cross-
examinations;
(iii) Individual Respondents to file their own evidence in
response by right on their special circumstances;
(iv) Applicants file any reply evidence only in respect of special
circumstances or as otherwise permitted with leave of the
Case Management Judge;
(v) Individual Respondents may seek leave to perform further
cross-examinations of Applicants on main evidence, may

69
cross-examine by right on any reply or supplemental
evidence;
(vi) Applicants may cross-examine Individual Respondents by
right on evidence of special circumstances;
(vii) Schedule for hearing on merits to be set by Case
Management Judge; and
(viii) If applicable, Orders to issue individually to Individual
Respondents.
Litigation Plan Submissions
1. Notice to class members as set out in para. 8(c) of the Notice of Motion and
as required by Rule 334.32 is set out below in paras, (b) and (g). Voltage
submits that the factors set out in R. 334.32 are fulfilled thereby, including
minimizing the cost of giving notice, the nature of the relief, the size and
numbers of the class, and the likelihood that some of all of the class
members will opt out of the class proceeding, as well as the residence of
the class members (across Canada).
2. A sample Certification Notice is attached hereto as Appendix 2, which if
approved by the Court will be translated into French and combined into a
bilingual notice. The content of the notice, in particular the requirements
under Rule 334.32(5), have been met as set out below.
a) The notice sets out that the proceeding is a class proceeding where the
class member has been ordered to be a respondent to the class.

70
b) The opt-out procedure for each class member including the time and
manner for a class member to opt out of the proceeding is set out
therein.
c) The financial consequences have been set out therein.
d) Sections 334.23(d) and (e) are not relevant as they only apply to a
Plaintiff/Applicant class.
e) We have not included any Rule 334.32(6) request for contributions to
the Respondent Class defence fund, but would not oppose a
reasonable request for contributions being added to the Certification
notice.
3. Once approved, the Certification Notice would be posted on the Aird &
Berlis website, and could also be posted on class counsel’s website. The
utility of posting a website notice would not be high as most individuals will
not know their IP address at the relevant dates and times.
4. To protect the identities of the subscribers, the “opt out form” is included in
the Certification notice in the sense that class member would email
Applicants’ counsel their reference number and their desire to opt-out. This
information would periodically be shared with the Court and class counsel
and records kept of those members who wished to opt out. Their identities
would only be determined on a successful hearing on the merits of this
Application and following any second notification regarding opting back into
the matter.
TAB 2
71
Appendix 2 - Sample Certification Notice
COPYRIGHT CLASS PROCEEDING NOTICE - YOU HAVE BEEN IDENTIFIED AS

A MEMBER OF A RESPONDENT CLASS AND MAY BE SUBJECT TO LIABILITY.
Your reference number is: <Reference Number>.
A copyright infringement proceeding in regards to the copyright infringement of the

films THE COBBLER, PAY THE GHOST, GOOD KILL, FATHERS AND
DAUGHTERS and AMERICAN HEIST has been commenced in the Federal Court of
Canada under Court File Number T-662-16. Details of this proceeding can be found
by searching for Court File Number T-662-16 on the Federal Court of Canada’s
website, found at https://www.fct-cf.qc.ca/en/court-files-and-decisions/court-
files#cont
The claim in this matter is that you or someone using your internet account has used
a BitTorrent peer-to-peer network to unlawfully download and/or unlawfully offer to
upload one of the above-listed films.
Specifically in respect of your case, the film in question was: <Film or Films> and the
unlawful activity was detected at the following date and time (UTC time):
<Date Time of Infringements:*.
BY COURT ORDER, YOU HAVE BEEN ADDED TO THE CLASS OF

RESPONDENTS IN THIS CLASS PROCEEDING. YOU ARE NOT REQUIRED TO
TAKE PART IN THE PROCEEDING AS REPRESENTATIVE CLASS MEMBERS
HAVE BEEN IDENTIFIED AND NAMED IN THIS ACTION.
ANY JUDGEMENT ON THE COMMON ISSUES IN THIS MATTER, WHETHER

FAVOURABLE OR UNFAVOURABLE, WILL BIND ALL OF THE CLASS MEMBERS
WHO DO NOT OPT OUT OF THE PROCEEDING.
IF YOU DO NOT OPT OUT, THE LAWYERS FOR THE DEFENDANT CLASS WILL
DEFEND YOUR RIGHTS AUTOMATICALLY THROUGH THEIR DEFENCE OF THE
DESIGNATED CLASS RESPONDENTS WITHOUT ANY ACTION BEING TAKEN
BY YOU, AND WITHOUT ANY IMMEDIATE FINANCIAL CONSEQUENCE.
IF YOU DO OPT OUT, YOU WILL STILL BE SUBJECT TO COURT

PROCEEDINGS, HOWEVER, YOU WILL HAVE THE OPPORTUNITY TO RETAIN
A LAWYER AND DEFEND THE CASE YOURSELF.
IF YOU WISH TO OPT-OUT OF THE CLASS AND BE NAMED AS AN INDIVIDUAL

RESPONDENT, YOU MAY DO SO BY SENDING AN EMAIL TO
optout@airdandberlis.com. PRIOR TO <OPT-OUT-DATE> YOU MUST INCLUDE
IN THE EMAIL YOUR REFERENCE NUMBER SET OUT ABOVE.
YOU MAY CONTACT THE RESPONDENT CLASS LAWYERS BY EMAILING

THEM AT CLASS LAWYER EMAIL ADDRESS> OR BY CALLING THEM AT
CLASS LAWYER PHONE NUMBER> FOR MORE INFORMATION.
72
YOU WILL ALSO HAVE THE OPTION TO OPT-OUT ONCE THE MERITS OF THIS
ACTION HAVE BEEN DETERMINED AND ANY AMOUNT OF DAMAGES SET,
AND YOU MAY ALSO AT YOUR OPTION OPT BACK IN TO THE APPLICATION
AT THAT POINT.
WHILE YOU ARE NOT CURRENTLY IDENTIFIED TO THE APPLICANTS, YOUR

PERSONAL INFORMATION WILL BE STORED BY YOUR INTERNET PROVIDER
IN ORDER TO IDENTIFY YOU IN THE FUTURE.
Please note that you must immediately take steps to (a) stop copyright infringement
from occurring on your internet account and (b) secure your internet (by e.g.
changing the WiFi password) so that no unauthorized third party can infringe
copyright by using your internet account. Please contact us by email at
copvrightenforcement@airdberlis.com within 14 days of this notice giving us your
reference number and by letting us know what steps you have taken as per the
above. Your efforts will be noted and taken into account in this proceeding.
IF YOU DO NOT CONTACT US, YOU WILL BE DEEMED TO HAVE AGREED TO

THE UNLAWFUL ACTIVITY OCCURRING ON YOUR INTERNET ACCOUNT.
THIS IS A VERY SERIOUS MATTER AND WE URGE YOU TO SEEK LEGAL

COUNSEL TO REVIEW THIS NOTICE. IF YOU DO NOT WISH TO USE THE
RESPONDENT CLASS LAWYERS, SOME ASSISTANCE MAY BE FOUND AS
FOLLOWS:
Alberta - https://www.lawsocietv.ab.ca/public/lawyer-referral/
British Columbia - http://www.cbabc.orq/for-the-public/lawyer-referral-service
Manitoba - http://www.communitvlegal.mb.ca/proqrams/law-phone-in-and-lawver-
referral-proqram/
New Brunswick - https://secure.lawsocietv-
barreau.nb.ca/memberdirectory/Search.aspx
Newfoundland and Labrador - http://publiclegalinfo.com/
Nova Scotia - https://www.legalinfo.org/how-lisns-can-help/i-need-a-lawyer
Ontario - https://lsrs.lsuc.on.ca/lsrs/
Prince Edward Island - http://www.lawsocietvpei.ca/find-a-lawyer
Quebec- https://www.barreau.qc.ca/en/directorv-lawvers/
Saskatchewan - http://www.lawsocietv.sk.ca/for-the-public/how-do-i-find-a-
lawver.aspx
NO COURT HAS YET DETERMINED THAT YOU ARE LIABLE FOR COPYRIGHT
INFRINGEMENT FOR THE DISTRIBUTION OF ANY OF THE CLAIMANTS’
MOVIES NOR THAT YOU ARE LIABLE FOR ANY DAMAGES FOR ANY
POTENTIAL COPYRIGHT INFRINGEMENT.
Note that Aird & Berlis LLP is not your lawyer. We can be located at Brookfield
Place Suite 1800, Box 754 181 Bay Street, Toronto Ontaio M5J 2T9.
Yours truly,
Aird & Berlis LLP
37122417.6

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Court File No.

PROPOSED CLASS PROCEEDING

ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed representative

MOTION RECORD OF THE APPLICANTS

AIRD & BERLIS LLP

Counsel for the Applicants

TO: THE ADMINISTRATOR

AND TO: LIPMAN, ZENER & WAXMAN LLP

Counsel for the Respondents

AND TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY

Tel.: 613.562.5800 ext. 2558

Counsel for Samuelson-Glushko Canadian Internet Policy

PROPOSED CLASS PROCEEDING

ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI. proposed representative

MOTION RECORD OF THE APPLICANTS

Tab Document Page No.

1 Amended Notice of Motion dated September 9, 2019 1 -7

2 Affidavit of Benjamin Perino affirmed June 3, 2019 8-14

a) Exhibit A - Affidavit of Daniel Macek affirmed May 19, 2016 15-31

3 Memorandum of Fact and Law dated September 9, 2019 32-64

1) Appendix 1 - Proposed Litigation Plan 65-70

2) Appendix 2 - Sample Certification Notice 71 -72

PROPOSED CLASS PROCEEDING

ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI, proposed representative

AMENDED NOTICE OF MOTION

“Unlawful Acts” include:

THIS MOTION IS FOR an order:

a) certifying this application as a class proceeding, pursuant to Rules 334.14(2), 334.14(3)

(iii) a declaration that copyright subsists in each of the Works;

(vi) pre-judgment and post-judgment interest;

(vii) costs; and

i) specifying the means that shall be used to publish any Notice.

THE GROUNDS FOR THIS MOTION ARE:

1) the Notice of Application discloses a reasonable cause of action;

2) there is an identifiable class of two or more respondent persons;

(iii) Do the Unlawful Acts constitute copyright infringement e.g.:

c. acts referred to in s. 27(2.3) of the Copyright Act,

(iv) Do the Unlawful Acts constitute offering a Work by telecommunication contrary

(vi) Did the Internet Account Subscribers:

ii. require prior notice to be found liable for authorization. If notice is

(viii) What is an appropriate quantum of statutory damages available pursuant

(ix) Is this an appropriate case for an injunction?

6) the Representative Respondents:

a) particulars of the Leave to Intervene motion to permit CIPPIC to be an intervener in these

g) an agreed statement of facts is to be prepared in respect of the Unlawful Acts for

i) evidence to be submitted by the proposed class respondents;

j) cross-examination (if any) on the evidence filed;

k) following cross-examinations, the Applicants may seek amendment or further refinement

b) affidavit evidence to be filed, if any:

c) matters of which the court may take judicial notice; and

Date Amended: September 9, 2019

Counsel for the Applicants

TO: THE ADMINISTRATOR

AND TO: LIPMAN, ZENER & WAXMAN LLP

Counsel for the Respondents

AND TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY

Tel: 613.562.5800 ext. 2558

Counsel for Samuelson-Glushko Canadian Internet Policy

PROPOSED CLASS PROCEEDING

ROBERT SALNA, JAMES ROSE, and LORIDANA CERRELLI. proposed representative

AFFIDAVIT OF BENJAMIN PERINO

I, BENJAMIN PERINO, MAKE OATH AND SAY AS FOLLOWS:

The BitTorrent Protocol for "Sharing” Computer Files