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Copyright claims in the age of the Internet

Originally published in

A former adult film performer’s efforts to erase the evidence of his past underscore the challenges of navigating copyright law in the Internet age, says Toronto intellectual property lawyer John Simpson.

In the ongoing case of Davydiuk v. Internet Archive Canada and Internet Archive, 2016 FC 1313 (CanLII), the plaintiff used copyright claims in an attempt to remove his pornographic videos and performances from Internet Archive's servers hosted in the U.S., he explains.

“This man decided he no longer wanted to be associated with the porn industry so he acquired the copyright to what he believes to be all of his images and videos of live performances,” says Simpson, principal of Shift Law. “The case shows why copyright law is so interesting because on the one hand it’s versatile and adaptable to different situations, but on the other hand it’s excruciatingly technical.”

About two years ago, the plaintiff made a claim in the Federal Court of Canada against Internet Archive and its Canadian subsidiary seeking the removal of his images and videos from their “Wayback Machine” digital archiving website, Simpson tells

"The defendants objected on the basis that the action should be brought in California, which is where their servers are located, but the court rejected the defendants’ arguments and accepted jurisdiction over the dispute," he says.

Further procedural issues arose last year when the defendant alleged that the statement of claim did not properly identify the works in which the plaintiff was asserting copyright, Simpson points out.

“Although the plaintiff thought he had secured the copyright in all of the videos and images, there was a question around his ability to claim rights in everything at issue, including still images from the videos and performances,” he says.

Internet Archive, whose entire business is built on maintaining websites in their original form, fought back against the claims of copyright infringement, arguing the still photographs, which were taken on the set during filming, didn’t represent a substantial part of the videographic works and therefore couldn’t be the subject of an infringement claim, Simpson explains.

“They maintained that the statement of claim had a definition of the ‘works’ that included the movies, but arguably not the photographs. To prove copyright infringement you have to show that someone has reproduced your work or a substantial part of it, and that’s often the key issue because it’s not a quantitative measure, but a qualitative one. The judge really grappled with that while working within the strict and technical confines of copyright law," he adds.

When the Copyright Act became law in 1921, the Internet hadn’t even been contemplated, and while it has been amended in recent years, there are still fundamental principles that are difficult to apply in the Internet age, leaving much for the courts to sort out on their own, Simpson notes.

“This case is as procedural as it gets, and the irony is, the plaintiff was trying to erase his association with the pornography industry, but now that the case is into its second motion, it will probably get more publicity than he bargained for.”

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