The Federal Court recently held an individual guilty of contempt of court for disobeying an interlocutory injunction prohibiting the sale of pre-loaded set-top boxes designed to grant free access to copyrighted content.
Mr. Vincent Wesley, doing business by himself as “MontrealFreeTV.com”, sold “pre-loaded” set-top boxes. The devices could be connected to any standard television and contained previously installed and configured applications that allowed users to access online streaming of content such as movies and television programs. The Plaintiffs, a group of Canadian telecommunications companies, brought an action for copyright infringement and obtained in interlocutory injunction prohibiting Mr. Wesley from selling the devices. The Defendant continued to sell the devices after the injunction and plead guilty to, and was sentenced for, contempt of Court.
In January 2017, the Defendant again sold set-top box devices designed to access copyrighted content. The Defendant disputed the citation of contempt and Bell Canada v. Vincent Wesley (c.o.b. MtlFreeTV.com) is the Court’s judgment finding Mr. Wesley in contempt of Court (a second time) for breaching the interlocutory injunction order.
The Plaintiffs’ witnesses included an undercover investigator who testified that he purchased a set-top box from the defendant in January 2017. The device differed from boxes purchased in the past insofar as the purchaser now had to take certain steps to gain access to the allegedly illegal content. The steps were minimal. Upon starting the device, clicking an icon on the homepage immediately took the user to a page bearing the Defendant’s logo and information, which stated “click here to finalize MFTMC installation.” After installation, the user is advised that the Defendant’s website could be visited for future support. It took only a few minutes from beginning installation to gaining access to copyrighted content, including many of the Plaintiffs’ stations and programs.
Mr. Wesley argued that he was not in contempt because he did not sell a “pre-loaded” device, but rather told purchasers that they would have to install the program themselves. The Court rejected this argument and found that contempt was proved beyond a reasonable doubt.
The unchallenged evidence showed that the Defendant sold a device which provided the purchaser access to copyrighted content after following steps as prompted. Recorded conversation of the sale showed that the Defendant was purporting to sell a box that would give illegal access to pay-per-view movies and programs at no cost.
The fact that the set-top box did not immediately provide access to illegal content did not remove it from the scope of the injunction. The device contained all that was needed to access content. The “configuration” that the customer was required to perform was “simply to click when prompted.” This difference was not enough to fall outside the four corners of the injunction, which prohibited the Defendant from, amongst other things, “directly or indirectly… selling set-top boxes that are adapted to provide users with unauthorized access to the Plaintiffs’ Programs.”
The Court made note of Mr. Wesley’s dismissive attitude toward copyright laws. A CBC interview and Mr. Wesley’s website demonstrated that he “is a true believer in free television.” In the interview, Mr. Wesley stated that “a court case can’t kill the industry” and that streaming add-on companies can simply “start from scratch” or “return under a different name” when stopped by litigation. The Court inferred from the Defendant’s website, “MontrealFreeTV.com”, that “he favours having access to television without having to pay for it.”
There were also major problems with the Defendants’ case. The Defendant did not offer any evidence regarding the boxes sold because “not having the burden of proof, he did not feel the need to bring a sample.” The Defendant called an expert witness to address technical issues but the Court found the evidence had no probative value to any issue: “As a result of the failure of the [Defendant’s] witness, the only conclusion that can be reached by the Court is that there is no evidence before it.” Conversely, the Plaintiffs’ witnesses “were barely cross-examined” and Defendants’ counsel “concede[d], “somewhat surprisingly, that a mere denial will not automatically suffice to raise a reasonable doubt.”
The Court found Mr. Wesley guilty of contempt of court. The Court directed the parties to provide submissions as to the appropriate sentence.
A copy of the decision can be found here.