By Matthew Estabrooks, Graeme MacPherson
The famous New Yorker cartoon goes, “On the Internet, nobody knows you’re a dog.” This isn’t entirely true. Your Internet Service Provider (ISP) knows you’re a dog. The question in Rogers Communications Inc. v. Voltage Pictures, LLC is who has to pay to find out.
This decision, released on Friday, deals with tracking down alleged copyright infringers. At its most basic level, the decision is about drawing the line between the relatively new “notice-and-notice” statutory regime (designed to curtail copyright infringement without compromising privacy), and the traditional Norwich orders used to identify suspected copyright infringers so they can be named in an infringement action. Under the common law governing Norwich orders, the third party who is ordered to produce the documents in question is entitled to recover the reasonable costs incurred in complying with the order. Under the notice and- notice regime, no costs are recoverable. This is where things get interesting.