The Substance of Procedure: Non-Party Disclosure in the Canadian and U.S. Online Music Sharing Litigation

Abstract

The music recording industry is suing Internet subscribers in Canada and the United States for alleged copyright infringement in unprecedented numbers. The procedure for obtaining non-party disclosure has taken on renewed significance in this context, as the industry requests disclosure of identifying and private information from Internet Service Providers (ISPs) who provide online communicators with their Internet connections. Legislative measures adopted in the U.S. expedited the disclosure process through an administrative mechanism with low threshold requirements for issuance of a subpoena against an ISP. In Canada (and after late 2004 in the U.S.), disclosure requests proceeded under federal rules of court. Comparison of the expedited administrative and the judicially interpreted rules-based processes raises important questions about the connection between procedure and substance, and procedural justice more generally. Not only are more permissive rules for disclosure often inconsistent with protecting substantive rights, such as privacy, bin they also cannot be presumed to enhance the likelihood of achieving accurate substantive legal outcomes. If non-party disclosure rules are not contextually designed and implemented to reflect the power and resource imbalance between the plaintiff music industry and the individual defendants pursued in online music sharing litigation, the public and private interest in substantive adjudication of critical questions relating to copyright law may be foreclosed for reasons wholly unrelated to substantive legal merits.