Source text

Warner Bros. Entertainment Inc. v. White (Beast IPTV)
Court (s) Database
Federal Court Decisions
Date
2023-06-28
Neutral citation
2023 FC 907
File numbers
T-1176-20
Notes
Digest
A correction was brought on April 17, 2024
Decision Content
Date: 20230628
Docket: T-1176-20
Citation: 2023 FC 907
Ottawa, Ontario, June 28, 2023
PRESENT: The Honourable Mr. Justice Lafrenière
BETWEEN:
WARNER BROS. ENTERTAINMENT INC.
AMAZON CONTENT SERVICES LLC
BELL MEDIA INC.
COLUMBIA PICTURES INDUSTRIES, INC.
DISNEY ENTERPRISES, INC.
NETFLIX STUDIOS, LLC
NETFLIX WORLDWIDE ENTERTAINMENT, LLC
PARAMOUNT PICTURES CORPORATION
SONY PICTURES TELEVISION INC.
UNIVERSAL CITY STUDIOS PRODUCTIONS, LLLP
Plaintiffs
and
TYLER WHITE DBA BEAST IPTV
COLIN WRIGHT DBA BEAST IPTV
Defendants
ORDER AND REASONS
I. Overview [1] On September 20, 2021, the Defendant, Mr. Tyler White, was found guilty of contempt for disobeying numerous provisions of an interim order issued by Justice Yvan Roy on November 17, 2020 [Interim Order] after pleading guilty to the charges levelled against him.
[2] At the sentencing phase of the contempt proceedings, the parties presented evidence to be considered by this Court in determining a fit sentence for Mr. White’s conviction of contempt of court.
[3] The Plaintiffs recommend that the Court impose upon Mr. White a sentence of incarceration for a period of 60 days in light of numerous aggravating factors that have been established at the hearing. They also request that Mr. White be required to pay their costs of the contempt proceedings fixed on a solicitor-client basis.
[4] Mr. White submits that it would be grossly disproportionate to incarcerate him given his personal circumstances. He contends that a fine of $20,000 would be a more appropriate penalty, and that costs should be fixed at $20,000, with both amounts made payable over a two-year period.
[5] The two issues to be determined before me are what is the appropriate sentence to be imposed on Mr. White and what costs award should be granted to the Plaintiffs.
[6] As explained further below, I consider the Plaintiffs’ sentencing recommendation to be both reasonable and warranted in light of Mr. White’s blatant, defiant and obstructionist conduct that completely frustrated the fundamental purposes of the Interim Order and amounted to an affront to the administration of justice.
[7] As for costs, I see no reason on the particular facts of this case why the customary practice in contempt cases, to impose costs on a solicitor-client basis, should not apply.
II. Background Facts
[8] The facts that gave rise to the contempt proceedings against Mr. White are set out in great detail in the decision of Justice Roy in Warner Bros Entertainment Inc et al v White (Beast IPTV), 2021 FC 53 [Warner Bros].
[9] In summary, the Plaintiffs commenced an action on October 2, 2020 against Mr. White and his co-defendant, Mr. Colin Wright, alleging that they infringed the Plaintiffs’ copyright in the Plaintiffs’ Works by developing, operating, maintaining, promoting, and selling subscriptions to the “Beast IPTV Service.”
[10] The Plaintiffs brought an ex parte motion for an interim injunction, which was granted by Justice Roy on November 17, 2020. Justice Roy was satisfied that separate interim orders should issue against Mr. White and Mr. Wright after the Plaintiffs established: (1) a serious issue to be tried, (2) irreparable harm if the motion was not granted, and (3) the balance of convenience favoured the Plaintiffs.
[11] The preamble to the Interim Order, entitled “Notice to the Defendant”, reads in part as follows:
2. This Order contains, inter alia, an “interim injunction”. The interim injunction orders you to cease engaging in certain specified activities, and authorizes an independent supervising solicitor, assisted notably by computer forensic experts, to take control of certain Internet domains, subdomains, servers, and hosting provider accounts, as further described in this Order, for a period of fourteen (14) days following the date of service of this Order upon you. This Order also orders you to provide certain information to the independent supervising solicitor and to the Plaintiffs’ solicitors. You are advised to read the terms of the interim injunction very carefully and to comply with them.
3. You are entitled to seek the advice of counsel before complying with the terms of the Order, provided that such advice is sought and obtained within a reasonable time not exceeding two (2) hours from the time the Order has been explained to you. If you are unable to pay for legal fees, legal aid may be available to you by contacting a legal aid office.
4. You are entitled to have the Plaintiffs’ solicitors, in the presence of the independent supervising solicitor who served you with a copy of this Order, explain to you what the Order means in plain, everyday language.
5. When the Order is explained to you, only the independent supervising solicitor, a process server and/or bailiff, a videographer, and Plaintiffs’ solicitors, plus such law enforcement officers as may be required, may enter your premises. However, after the Order has been explained, the persons designated in the terms of the Order, below, may participate in the enforcement of the Order, as described below.
6. You are required to permit entry onto the premises to the persons specified below on any business day starting at 8:00am, or earlier if necessary to enforce this Order, and until such time is reasonable and necessary to complete the execution of this Order, within fourteen days of the date of service of this Order upon you.
7. This is a civil proceeding and not a criminal one. You have the right to refuse entry to the premises for the execution of the Order, but if you refuse the Court may draw adverse inferences from your refusal, and you will be in breach (contempt) of a Court Order under Rule 466(b) of the Federal Courts Rules and subject to a fine and/or imprisonment under Rule 472 of the Federal Courts Rules. Copies of the Federal Courts Rules may be obtained on request to the Administrator of the Federal Court in Ottawa, Ontario (telephone 613- 922-4238) or at any local office.
8. You are entitled to remain silent and to refuse to answer questions other than the questions specified in the Order below.
[12] The relevant provisions of the Interim Order required Mr. White:
a. to disclose technical information about Beast IPTV Service (paragraph 2B of the Interim Order);
b. to not communicate with third parties during the execution of the Interim Order for the purposes of interfering with the execution of the Interim Order, and to not conceal evidence (paragraphs 2I), 3A), 3B) i. of Interim Order);
c. to disclose a variety of relevant financial information (paragraph 2J) of the Interim Order); and
d. to authorize his financial providers to disclose information to the Plaintiffs (paragraph 2K of the Interim Order).
[13] The Interim Order specifically prohibited Mr. White from communicating with Mr. Wright and other third parties within 48 hours of being served with the Interim Order (paragraph 3B) i. of the Interim Order) and from operating, maintaining, and/or updating the Beast IPTV Service and corresponding applications and domains (paragraph 2A of the Interim Order).
[14] Paragraph 2M of the Interim Order further enjoined and restrained Mr. White, by himself or by any company, partnership, trust, entity, with which he is associated or affiliated, or person under his authority or control, from directly or indirectly selling, assigning, alienating, transferring, or otherwise disposing of his assets.
[15] On November 24, 2020, Mr. White was personally served with the Interim Order at his residence in accordance with its terms.
[16] The Interim Order provided that it would remain valid for a period of not more than 14 days, within such time the Plaintiffs were required to bring a motion to review the execution of the Order and consider any application to convert the interim relief into interlocutory relief.
[17] At the time of service of the Interim Order, and during its execution, the terms of the Interim Order were explained to Mr. White by Mr. David Hutt, the Independent Supervising Solicitor (ISS) and by Plaintiffs’ counsel, including those relating to his right to consult with counsel, his obligations under the Interim Order, and the potential of an adverse inference being drawn in case of non-compliance.
[18] Mr. White was informed by the ISS, in particular, that failure to comply with the provisions of the Interim Order would put him in breach of its terms and subject him to facing a motion for contempt of court, which could result in a fine and/or imprisonment.
[19] Mr. White was given the opportunity to ask questions about the Interim Order. Mr. White was also informed that he was entitled to seek advice from his own counsel before deciding whether to comply with the Interim Order provided that such advice was sought and obtained within a reasonable time and did not exceed two (2) hours from the time the Interim Order had been explained.
[20] During the execution of the Interim Order, Mr. White claimed to have no knowledge or involvement with the Beast IPTV Service.
[21] Mr. White was provided an opportunity to contact a lawyer, but was unable to reach one during the window of time provided in the Interim Order. Eventually, someone from the execution team put Mr. White in touch with a lawyer, Mr. Barry Mason. After receiving some legal advice from Mr. Mason, Mr. White refused to permit entry to his residence or provide any information required by the Interim Order.
[22] On November 25, 2020, Mr. White sought legal advice from another lawyer, Mr. Paul Lomic. That same day, Mr. White took the Beast IPTV Service offline, including the Beast IPTV.tv site and the web player accessible at watch.BeastIPTV.tv.
[23] On November 30, 2020, Mr. White retained new counsel, Mr. Howard Knopf, who then proceeded to request an adjournment of the review motion scheduled for December 7, 2020. Justice Roy granted the adjournment request and ordered that the Interim Order would remain valid and be continued until a judgment on the review motion was rendered.
III. Contempt Charges [24] The review motion was heard on December 18, 2020. On January 14, 2021, Justice Roy issued his decision in Warner Bros granting an interlocutory injunction and charging Mr. White and Mr. Wright with five counts of contempt of court pursuant to Rule 466(1)(b) of the Federal Courts Rules, SOR/98-106 [Rules], namely:
Mr. White and Mr. Wright, disobeying paragraph 2B) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose any of the technical information about the Beast IPTV Service as required at paragraphs 2B) of the Interim Orders, and by instead falsely claiming to have no knowledge of the Beast IPTV Service;
Mr. White and Mr. Wright, disobeying paragraphs 2I), 3A) and 3B)i. of the Interim Order, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with third parties with their phones or other electronic devices during the execution of the Interim Orders in order to interfere with the execution of the Interim Orders and conceal evidence, notably by instructing third parties to delete websites, infrastructure or evidence related to this proceeding;
Mr. White and Mr. Wright disobeying paragraph 3B)i. of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with one another and with third parties regarding the existence of this proceeding and of the Interim Order within forty-eight (48) hours after the service of the Interim Orders upon them;
Mr. White and Mr. Wright disobeying paragraphs 2J) and 2K) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose to the independent supervising solicitor and the Plaintiffs’ solicitor any of the financial information, as required at paragraphs 2J) of the Interim Orders, and by refusing to provide any consent to authorize financial institutions or other service providers to make such disclosures, as required at paragraphs 2K) of the Interim Orders;
Mr. White and Mr. Wright disobeying paragraph 2A) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by:
developing, operating, maintaining, promoting, providing support, selling subscriptions, or authorizing anyone to sell subscriptions to unauthorized IPTV services, including the Beast IPTV Service;
developing, maintaining, updating, hosting, distributing, promoting or selling any software application that provides access to unauthorized IPTV services, including the Beast IPTV Service;
operating, maintaining, updating, hosting, promoting or selling access to the Internet domains and subdomains through unauthorized IPTV services, including theBeast IPTV Service;
by themselves or by their employees, representatives and agents, or by any company, partnership, trust, entity, or person under their authority or control, or with which they are associated or affiliated, and by failing to take the necessary steps to ensure that such persons would cease these activities after service of the Interim Orders upon the Defendants.
IV. Contempt Hearing [25] The contempt hearing was scheduled for September 20, 2021. In early September 2021, Mr. White indicated he would be entering a plea of guilty with respect to the charges of contempt. The parties subsequently produced an Agreed Statement of Facts.
[26] On September 20, 2021, Mr. White formally pleaded guilty to all the charges of contempt. The facts supporting the contempt charges, all admitted by Mr. White, are broken down below into three categories: A) Non-disclosure of Beast IPTV servers and domains; B) Non-disclosure of financial information and; C) Communications with others.
A. Non-disclosure of Beast IPTV servers and domains [27] Mr. White acquired and paid for various servers and hosting services used in association with the Beast IPTV Service, including from server/hosting providers, Mach Host, Zenex 5ive, reliablesite, and Datapacket/DataCamp [the “Beast IPTV Servers”].
[28] At the time of the execution, Mr. White and six other individuals all had possession of, or access to, the identity, location and login credentials of the Beast IPTV Servers and possession of, or access to, the credentials to access the server/hosting provider accounts associated with the Beast IPTV Servers. The six other individuals were Mr. Wright, and individuals identified as “Q”, “Slip”, “Andrew”, “Sal” and “Jay Stevens”.
[29] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs any information relating to the identity, location or login credentials of the Beast IPTV Servers or any other servers, nor the server/hosting provider accounts associated therewith.
[30] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had knowledge of at least some of the registrar accounts associated with the following domains used in association with the operation or promotion of the Beast IPTV Service [the “Beast IPTV Domains”]:
BeastIPTV.tv
Beasthosts.net
Beasthosts.org
Powergraphics.shop
Powergraphicsiptv.shop
Beasttv.io
Beasttv.cc
BeastIPTV.cc
Beasthosts.com
Beasthosting.org
BeastIPTV.com
Strikeforceseo.com
[31] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had possession of, or access to, the login credentials for the registrar accounts associated with the Beast IPTV Domains.
[32] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs, the registrar accounts and corresponding login credentials for the Beast IPTV Domains or any other domain or subdomain.
B. Non-disclosure of financial information [33] At the time of the execution, Mr. White, Mr. Wright and Sal all had possession of, or access to, invoices relating to the Beast IPTV Servers.
[34] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs the invoices associated with the Beast IPTV Servers.
[35] At the time of execution, Mr. White and Mr. Wright both had control of, or access to, PayPal accounts associated with email addresses [email protected] and [email protected] [Beast IPTV PayPal Accounts], which were used in association with the operation of the Beast IPTV Service.
[36] During the execution of the Interim Order, Mr. White did not identify or disclose any information to the ISS or to the Plaintiffs related to the Beast IPTV PayPal Accounts.
[37] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs the existence of any assets, revenues, or any financial documentation related to him or to the Beast IPTV Service.
[38] During the execution of the Interim Order, Mr. White did not disclose the identity of any bank, financial institution, or other financial service provider responsible for any asset related to him or the Beast IPTV Service.
[39] On September 3, 2021, Mr. White provided his written consent to authorize any bank, financial institution or other financial service provider to disclose to the Plaintiffs’ solicitors any information pertaining to assets that are directly or indirectly owned or controlled by him.
C. Communications with others [40] At the time of service of the Interim Order and during the execution, Mr. White was informed that once he was served with the Interim Order, he could only use electronic devices under the supervision of the ISS. He was also informed that he should not be communicating about this matter with anyone for 48 hours, except with counsel for the purpose of seeking and obtaining legal advice.
[41] During the morning of the execution, Mr. White breached the Interim Order by instructing a Beast IPTV server manager, known as Jay Stevens, to delete the powergraphicsiptv.shop and Beast IPTV.cc domains.
[42] By 12:30 pm EST, the Beast IPTV.cc and powergraphicsiptv.shop domains had been suspended or otherwise taken offline.
[43] Subsequent to Mr. White taking the Beast IPTV Service offline, a third party brought the service back online and changed the credentials needed to access the domain registrar.
[44] In breach of the Interim Order, Mr. White also communicated with Mr. Wright within the first 48 hours of being served with the Interim Order about each having been served with the Plaintiffs’ claim and the Interim Order, and the difficulties each were having with respect to retaining a lawyer.
[45] On November 25, 2020, Mr. White also breached the Interim Order by disclosing the existence of the proceeding and execution of the Interim Order with another third party associated with the Beast IPTV Service known as Sal.
[46] At about 10:17 pm EST on November 25, 2020, Mr. White had a telephone conversation with Jay Stevens. During the 31-minute call, Mr. White rambled on about the execution of the Interim Order and how he planned to respond to the proceedings.
V. Sentencing Hearing [47] At the parties’ request, the sentencing phase of the contempt proceeding was adjourned pending the adjudication of an appeal by Mr. White from the Judgment of Justice Roy dated January 14, 2021. The appeal was dismissed from the bench by the Federal Court of Appeal on February 23, 2022: White (Beast IPTV) v Warner Bros Entertainment Inc, 2022 FCA 34.
[48] In accordance with my Order dated May 13, 2022, the Plaintiffs filed a sentencing hearing record that contains the parties’ affidavit evidence, the Agreed Statement of Facts, read-ins from the examination for discovery of Mr. White, and copies of the documents identified and/or authenticated in the Agreed Statement of Facts and the discovery read-ins. The evidence also includes the audio recording of the telephone conversation between Mr. White and Jay Stevens on November 25, 2020 referred to in paragraph 46 above.
A. The Plaintiffs’ Evidence [49] The Plaintiffs rely on the affidavits of Mr. Jason Vallée Buchanan, Ms. Martine Guy, Mr. Anthony J. Martin and Mr. Andrew McGuigan for the purposes of sentencing. Both Mr. Martin and Mr. McGuigan were cross-examined at the sentencing hearing.
[50] Their evidence can be summarized as follows.
[51] Mr. Buchanan is a paralegal employed by the Plaintiffs’ solicitors of record. He identifies and attaches various documents to his affidavit, including Mr. White’s affidavit of documents affirmed April 16, 2021 and a copy of the confidential affidavit of Mr. White sworn on July 21, 2022 in relation to an earlier motion by Mr. White for leave to sell assets.
[52] Ms. Guy is a legal assistant employed by the Plaintiffs’ solicitors of record. She explains in her original and supplemental affidavits how legal fees and disbursements pertaining to the contempt proceedings related to Mr. White are accounted for under the law firm’s internal file and how they are divided between the Motion Pictures Association [MPA] Plaintiffs and Bell Media Inc. [Bell Media]. Attached to her three affidavits are copies of the invoices sent to the Plaintiffs that relate to the contempt proceedings.
[53] Mr. Martin is an investigator in the Corporate Security Department of BCE Inc. [BCE], the parent company of Bell Media. He states in his affidavit that media content piracy is “an age-old problem faced by rightsholders,” including the Plaintiffs. He explains how the rapid expansion of television piracy has caused significant harm to, and has attacked the viability of, copyright creators and owners in Canada, including Bell Media. From his experience, those who illegally reproduce and distribute infringing copies of protected works often go to great lengths to conceal their identity and the true nature of their activities to avoid the legal consequences of their actions. Mr. Martin states that Bell Media and its affiliates have invested a significant amount of dedicated resources in launching and prosecuting legal actions against individuals and businesses engaged in such forms of piracy. He then goes on to outline a history of non-compliance with court orders among the content piracy community in Canada.
[54] Mr. McGuigan is the Director of the Global Content Protection department [GCP] of the Motion Picture Association-Canada [MPA-Canada], an affiliate of the MPA and was personally involved in the GCP’s efforts to investigate the allegedly infringing activities of Beast IPTV.
[55] Mr. McGuigan explains that the online infrastructure of the Beast IPTV Service consisted of a number of domains and content delivery servers that were critical to its functionality. According to Mr. McGuigan, if the requested credentials were provided to the ISS at the time the Interim Order was executed on November 24, 2020, it would have been possible to lock the registrar accounts and shutdown servers, rendering the Beast IPTV Service inoperable and avoid any potential of them being taken over by a third party.
[56] Mr. McGuigan describes in great detail how the GCP was monitoring the Beast IPTV Service during the execution of the Interim Order, and in the following days, for any activities or changes to the Beast IPTV Service related to these enforcement efforts.
[57] On November 25, 2020, the GCP observed the Beast IPTV Service, including the core beastiptv.tv domain, had been taken offline. However, on the next day, the GCP observed that certain aspects of the Beast IPTV Service were functioning again, including the Beast IPTV reseller/admin portal, which is the control panel used to manage user accounts and subscriptions.
[58] On December 1, 2020, the GCP was able to confirm through testing that subscribers were still able to access and view content through the Beast IPTV via a web-based player, the Beast IPTV Android Application, and the Beast IPTV Perfect Player media player. The GCP also became aware through the Beast IPTV Telegram group that subscribers were complaining about not being able to renew their subscriptions.
[59] While the GCP initially suspected on December 5, 2020 that Beast IPTV administrators were manually renewing subscription via PayPal as a stop-gap measure in response to some issue with Beast IPTV payment portals, it became apparent by about December 10, 2020 that those administrators were covertly attempting to enroll some of Beast IPTV’s subscriber base into a new spin-off service.
[60] Following the shutdown of the Beast IPTV Service, messages were posted on the domain beastsoftware.net, a domain that the GCP had identified as being associated with payment support for the Beast IPTV Service prior to the execution of the Interim Order. The GCP obtained a screenshot from a social media post on December 26, 2020 of what appears to be a message posted on a Beast IPTV website the previous day. An excerpt of the screenshot is reproduced below.
[61] According to Mr. McGuigan, the message appears to be a tactic employed to retain whatever funds had already been collected by the service and/or to potentially encourage users to contact the parties directly at the email provided to facilitate the subscribers’ migration to an alternative service. A similar message was posted on the billing.beastsoftware.net domain on December 26, 2020.
[62] Mr. McGuigan states that over the last several years, the GCP has observed a pattern of those involved in the operation of unauthorized IPTV services to attempt to circumvent its enforcement efforts by transitioning subscribers to an alternative unauthorized service using data associated with the targeted data.
[63] He provides as an example an authorized IPTV service known as Vader Streams that was the subject of a GCP investigation beginning in 2018. On March 11, 2019, eight months before the execution of the Interim Order in the present case, the MPA-Canada sent a cease and desist letter to Mr. White demanding that he take immediate steps to address the extensive copyright infringement of television programs and motion pictures that was occurring by virtue of his operation of the Internet website “Vaders.cc.” Mr. White was specifically warned that multiple judgments and orders had been issued by Canadian courts that provide for injunctive relief and important damage awards in cases dealing with the unauthorized dissemination of works owned by the major motion picture studios and other rightsholders that MPA-Canada represented.
[64] Mr. McGuigan had several conversations with Mr. White following service of the cease and desist letter. Mr. White admitted to Mr. McGuigan that he operated several re-seller sites for Vader Streams and agreed to shut them down. However, Mr. White denied having any ties with the Beast IPTV Service and indicated that he was no longer involved with the sale of subscriptions or with the operation of unauthorized IPTV services.
[65] The Vader Streams service was effectively shut down by the summer of 2019 following the commencement of litigation in this Court.
[66] During his examination for discovery, Mr. White admitted that the Beast IPTV subscriber base grew significantly by transferring a large portion of his prior Vader Streams customers onto the Beast IPTV Service after the shutdown.
[67] Mr. McGuigan concludes his affidavit by noting that individuals and companies involved in the operation of unauthorized IPTV services targeted by the GCP’s enforcement efforts have been able to use data associated with the targeted services to facilitate the migration of subscribers to alternative services. As a result, disruptions to subscribers are minimized and the targeted acts of infringement are essentially shifted elsewhere, rather than actually being shut down.
B. Mr. White’s Evidence [68] Mr. White filed his own affidavit, along with the affidavit of Karen Laroque.
[69] Ms. Laroque is a litigation law clerk with the law firm representing Mr. White. Attached to her affidavit are documents showing the continued efforts made by Mr. White to comply with the financial disclosure provisions of the Interim Order. These include supplemental affidavits of documents provided to the Plaintiffs over the course of a year. Ms. Laroque was not cross-examined.
[70] In his affidavit, Mr. White expresses remorse for his actions that led to contempt of the Court. He states that he now fully understands the importance of court orders and the requirement to obey them in all respects.
[71] Mr. White states that while he does not offer any excuses for his failure to fully comply with the Interim Order, he claims that it was due in “significant measure” to his reliance on inadequate legal advice from Mr. Mason. Mr. White states that he refused to provide the required information after he was advised by Mr. Mason “that the team of lawyers could not do anything to [him] that day” and that he “did not need to take any actions and just wait until [he] found proper legal representation.”
[72] Mr. White sets out in his affidavit some personal circumstances that he wishes the Court to consider in mitigation of the sentence, including his son’s medical condition, his guilty plea, and the fact that this is the first time he has been charged with civil contempt.
[73] At the hearing, Mr. White repeated his apology to the Court. He acknowledged that his decision not to follow the court order was “serious” and was “a horrible error of judgment” on his part. He was then cross-examined extensively by Plaintiffs’ counsel.
[74] Mr. White admitted in cross-examination that he was a registered member of the BlackHatWorld Forum going by the name “Activeits” and started a thread on March 14, 2018. entitled “How I make 1k a day or more” under the heading “Making Money.”
[75] Although only a screenshot of page 4 of 5 of the thread was adduced in evidence, I infer from the title of the thread and the responses that are posted in the screenshot that Mr. White’s original post related to making money online by reselling IPTV subscriptions and that he was getting ready to share some tips online with like-minded people. The excerpts referred below, taken from the thread, are reproduced exactly as written.
[76] On September 4, 2018, a member of the forum congratulated Mr. White for his work: “Looking forward for your step-to-step post! Good work on achieving 1k per day and I hope your keep on being successful!” However, on September 5, 2018, another member had this to say: “yeah proper jail time in the uk for this shit now. Get ready for some butt f*ucking.” On September 9, 2018, a third member posted a comment in the same vein.
Watching an IPTV service (a legal one or illegal one) is not illegal in the US. Rebroadcasting copyright restricted content is though If you where to download and redistribute content you acquire from an illegal source, such as IPTV (but not limited to), and shared it, then that is illegal
So what you were doing was safe IMO since you were not technically broadcasting anything, you were merely reselling subscriptions Are you now broadcasting? If so, even though there may be more profits, are you concerned about legal ramifications
[77] Mr. White responded to the post on October 2, 2018. Apparently unfazed by the warnings, he bragged that he was not concerned about the legality of his actions and was well aware of potential consequences:
No not concerned everything i do i do carefully i also recently found a payment gateway that actual accept credits cards and pays out in BTC or PP or anything i need they also can pay bills for me so i have no problems with tracing
BTC is a mans best friend in this market also people have to remember that you do need to take precautions and also know the things that can happen if shit goes south just gotta play things smart there is a TON of money to be made in IPTV and I’m just getting started!
Thanks for the support everyone!
[78] On cross-examination, Mr. White admitted that he was holding at least $744,000 across several bank accounts at the time he was served with the Interim Order. He also admitted that immediately after the execution of the Interim Order, he went to the bank and withdrew $10,000 in hundred-dollar bills.
[79] Mr. White also acknowledged that up to the date of the sentencing hearing, he had still not identified, nor disclosed, details of various investment accounts with WealthSimple and Questrade and a Coinbase cryptocurrency account, the existence of which the Plaintiffs were only able to identify by scouring the hundreds of pages of banking transaction records provided by Mr. White.
C. Credibility of the Witnesses [80] Mr. White submits that the evidence of Mr. Martin and Mr. McGuigan is almost entirely hearsay, speculative or irrelevant and should be given little, if any, weight. I disagree.
[81] Mr. Martin provides useful context to the Court to better understand the piracy problem faced by rightsholders in Canada, the harm such piracy has created to the viability of copyright creators and owners, and the significant amounts of dedicated resources these creators and owners have expended over the years in launching and prosecuting legal actions against individuals and businesses engaged in some forms of piracy. His evidence is well supported and not contentious.
[82] As for Mr. McGuigan, I am satisfied that given his role as Director of the GCP and his personal involvement in the GCP’s efforts to investigate the infringing activities of the Beast IPTV Service, he was in a position to know the facts sworn in his affidavit to be true: see O’Grady v Canada (Attorney General), 2016 FC 9, aff’d 2016 FCA 221 at paras 18 to 20. There is no speculation on his part. In fact, much of his evidence is corroborated through documentary evidence and, in many cases, by Mr. White’s own admissions. Moreover, he was not shaken on cross-examination on any material point.
[83] I find the evidence of these two witnesses both credible and reliable.
[84] As for Mr. White, suffice it to say that he came across as a totally unreliable witness. He was evasive and vague throughout his entire testimony, as well as conveniently forgetful on any matters that might tend to incriminate him, even when confronted with incontrovertible evidence.
[85] Plaintiffs’ counsel put to Mr. White a number of statements that he made to Jay Stevens regarding the legal advice that he received from Mr. Lomic. Counsel for Mr. White objected to this line of questioning and argued that communication of the legal advice to a key member of Beast IPTV did not constitute an explicit or implicit waiver of the solicitor-client privilege. I disagree.
[86] There is no indication that Mr. Lomic was retained to represent any members of the Beast IPTV Service, other than Mr. White. He freely talked about the legal advice he received from Mr. Lomic with Jay Stevens and expressed frustration because it was not what he wanted to hear. In any event, even if privilege was not waived, Mr. White placed the legal advice he received at issue by stating at paragraph 32 of his affidavit that: “I now realize that following this advice (from Mr. Mason) resulted in me not complying with all the provisions of the November 17, 2020 Order, which led to the finding that I was in contempt.” By relying on the fact of taking legal advice as a defence or excuse for his conduct, Mr. White necessarily put in issue all the legal advice he received when he breached the terms of the Interim Order in such a way that it would be unfair to shield those communications from disclosure: Apotex Inc v Canada (Minister of Health), [2004] 2 FCR 137, aff’d 2004 FCA 280, at para 44.
VI. Principles for Sentencing for Civil Contempt [87] The power of courts to enforce their process is a cornerstone of the rule of law. For the judicial process to function, orders of the Court must be respected.
[88] The Supreme Court of Canada in United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931 explained the principle underlying the importance of complying with court decisions:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[89] This principle was reiterated by Chief Justice Paul Crampton in the recent case of Bell Media Inc v Macciacchera (Smoothstreams.tv), 2023 FC 801 at para 1: “Those who decide when and under what circumstances they will comply with a court order essentially take the law into their own hands. That cannot be countenanced in a society governed by the rule of law.”
[90] This Court’s authority to impose penalties on a contemnor is governed by Rules 466 to 472 of the Rules.
[91] Rule 472 sets out the penalties that may be issued in contempt proceedings.
Penalty
Peine
472 Where a person is found to be in contempt, a judge may order that
(a) the person be imprisoned for a period of less than five years or until the person complies with the order;
(b) the person be imprisoned for a period of less than five years if the person fails to comply with the order;
(c) the person pay a fine;
(d) the person do or refrain from doing any act;
(e) in respect of a person referred to in rule 429, the person’s property be sequestered; and
(f) the person pay costs.
472 Lorsqu’une personne est reconnue coupable d’outrage au tribunal, le juge peut ordonner :
a) qu’elle soit incarcérée pour une période de moins de cinq ans ou jusqu’à ce qu’elle se conforme à l’ordonnance;
b) qu’elle soit incarcérée pour une période de moins de cinq ans si elle ne se conforme pas à l’ordonnance;
c) qu’elle paie une amende;
d) qu’elle accomplisse un acte ou s’abstienne de l’accomplir;
e) que les biens de la personne soient mis sous séquestre, dans le cas visé à la règle 429;
f) qu’elle soit condamnée aux dépens.
[92] Mr. Justice John Norris provides a helpful and comprehensive overview of the general principles of sentencing for civil contempt in Bell Canada et al v Red Rhino Entertainment Inc, 2021 FC 895 [Red Rhino] at paras 6-13.
[93] As noted by Justice Norris, a judge has wide discretion to determine the appropriate sanction for civil contempt (Red Rhino at para 9; Tremaine v Canada (Human Rights Commission), 2014 FCA 192 [Tremaine] at para 26).
[94] Sentencing principles in criminal law are applicable to cases of civil contempt (Tremaine at para 19). The Federal Court of Appeal in Tremaine outlines the framework for determining a “fit” sentence and emphasizes the importance of deterrence and proportionality as the objectives of sentencing:
[21] In order to determine what is a “fit” sentence in a particular case, the sentencing judge must consider the range of sentences for similar offences set out in prior jurisprudence and adjust the sentence depending on the objectives of sentencing and any aggravating and mitigating factors applicable to the case at hand (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 43; Professional Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214, [2013] F.C.J. No. 1009 at paragraph 33 [Bremsak]).
[22] Courts also ought to consider the importance of specific and general deterrence for preserving public confidence in the administration of justice, while maintaining proportionality in sentencing (Canada (Minister of National Revenue) v. Marshall, 2006 FC 788, [2006] F.C.J. No. 1008 at paragraph 16 [Marshall]).
[95] There are a number of aggravating and mitigating factors a court can consider when determining a sentenc

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Warner Bros. Entertainment Inc. v. White (Beast IPTV) Court (s) Database Federal Court Decisions Date 2023-06-28 Neutral citation 2023 FC 907 File numbers T-1176-20 Notes Digest A correction was brought on April 17, 2024 Decision Content Date: 20230628 Docket: T-1176-20 Citation: 2023 FC 907 Ottawa, Ontario, June 28, 2023 PRESENT: The Honourable Mr. Justice Lafrenière BETWEEN: WARNER BROS. ENTERTAINMENT INC. AMAZON CONTENT SERVICES LLC BELL MEDIA INC. COLUMBIA PICTURES INDUSTRIES, INC. DISNEY ENTERPRISES, INC. NETFLIX STUDIOS, LLC NETFLIX WORLDWIDE ENTERTAINMENT, LLC PARAMOUNT PICTURES CORPORATION SONY PICTURES TELEVISION INC. UNIVERSAL CITY STUDIOS PRODUCTIONS, LLLP Plaintiffs and TYLER WHITE DBA BEAST IPTV COLIN WRIGHT DBA BEAST IPTV Defendants ORDER AND REASONS I. Overview [1] On September 20, 2021, the Defendant, Mr. Tyler White, was found guilty of contempt for disobeying numerous provisions of an interim order issued by Justice Yvan Roy on November 17, 2020 [Interim Order] after pleading guilty to the charges levelled against him. [2] At the sentencing phase of the contempt proceedings, the parties presented evidence to be considered by this Court in determining a fit sentence for Mr. White’s conviction of contempt of court. [3] The Plaintiffs recommend that the Court impose upon Mr. White a sentence of incarceration for a period of 60 days in light of numerous aggravating factors that have been established at the hearing. They also request that Mr. White be required to pay their costs of the contempt proceedings fixed on a solicitor-client basis. [4] Mr. White submits that it would be grossly disproportionate to incarcerate him given his personal circumstances. He contends that a fine of $20,000 would be a more appropriate penalty, and that costs should be fixed at $20,000, with both amounts made payable over a two-year period. [5] The two issues to be determined before me are what is the appropriate sentence to be imposed on Mr. White and what costs award should be granted to the Plaintiffs. [6] As explained further below, I consider the Plaintiffs’ sentencing recommendation to be both reasonable and warranted in light of Mr. White’s blatant, defiant and obstructionist conduct that completely frustrated the fundamental purposes of the Interim Order and amounted to an affront to the administration of justice. [7] As for costs, I see no reason on the particular facts of this case why the customary practice in contempt cases, to impose costs on a solicitor-client basis, should not apply. II. Background Facts [8] The facts that gave rise to the contempt proceedings against Mr. White are set out in great detail in the decision of Justice Roy in Warner Bros Entertainment Inc et al v White (Beast IPTV), 2021 FC 53 [Warner Bros]. [9] In summary, the Plaintiffs commenced an action on October 2, 2020 against Mr. White and his co-defendant, Mr. Colin Wright, alleging that they infringed the Plaintiffs’ copyright in the Plaintiffs’ Works by developing, operating, maintaining, promoting, and selling subscriptions to the “Beast IPTV Service.” [10] The Plaintiffs brought an ex parte motion for an interim injunction, which was granted by Justice Roy on November 17, 2020. Justice Roy was satisfied that separate interim orders should issue against Mr. White and Mr. Wright after the Plaintiffs established: (1) a serious issue to be tried, (2) irreparable harm if the motion was not granted, and (3) the balance of convenience favoured the Plaintiffs. [11] The preamble to the Interim Order, entitled “Notice to the Defendant”, reads in part as follows: 2. This Order contains, inter alia, an “interim injunction”. The interim injunction orders you to cease engaging in certain specified activities, and authorizes an independent supervising solicitor, assisted notably by computer forensic experts, to take control of certain Internet domains, subdomains, servers, and hosting provider accounts, as further described in this Order, for a period of fourteen (14) days following the date of service of this Order upon you. This Order also orders you to provide certain information to the independent supervising solicitor and to the Plaintiffs’ solicitors. You are advised to read the terms of the interim injunction very carefully and to comply with them. 3. You are entitled to seek the advice of counsel before complying with the terms of the Order, provided that such advice is sought and obtained within a reasonable time not exceeding two (2) hours from the time the Order has been explained to you. If you are unable to pay for legal fees, legal aid may be available to you by contacting a legal aid office. 4. You are entitled to have the Plaintiffs’ solicitors, in the presence of the independent supervising solicitor who served you with a copy of this Order, explain to you what the Order means in plain, everyday language. 5. When the Order is explained to you, only the independent supervising solicitor, a process server and/or bailiff, a videographer, and Plaintiffs’ solicitors, plus such law enforcement officers as may be required, may enter your premises. However, after the Order has been explained, the persons designated in the terms of the Order, below, may participate in the enforcement of the Order, as described below. 6. You are required to permit entry onto the premises to the persons specified below on any business day starting at 8:00am, or earlier if necessary to enforce this Order, and until such time is reasonable and necessary to complete the execution of this Order, within fourteen days of the date of service of this Order upon you. 7. This is a civil proceeding and not a criminal one. You have the right to refuse entry to the premises for the execution of the Order, but if you refuse the Court may draw adverse inferences from your refusal, and you will be in breach (contempt) of a Court Order under Rule 466(b) of the Federal Courts Rules and subject to a fine and/or imprisonment under Rule 472 of the Federal Courts Rules. Copies of the Federal Courts Rules may be obtained on request to the Administrator of the Federal Court in Ottawa, Ontario (telephone 613- 922-4238) or at any local office. 8. You are entitled to remain silent and to refuse to answer questions other than the questions specified in the Order below. [12] The relevant provisions of the Interim Order required Mr. White: a. to disclose technical information about Beast IPTV Service (paragraph 2B of the Interim Order); b. to not communicate with third parties during the execution of the Interim Order for the purposes of interfering with the execution of the Interim Order, and to not conceal evidence (paragraphs 2I), 3A), 3B) i. of Interim Order); c. to disclose a variety of relevant financial information (paragraph 2J) of the Interim Order); and d. to authorize his financial providers to disclose information to the Plaintiffs (paragraph 2K of the Interim Order). [13] The Interim Order specifically prohibited Mr. White from communicating with Mr. Wright and other third parties within 48 hours of being served with the Interim Order (paragraph 3B) i. of the Interim Order) and from operating, maintaining, and/or updating the Beast IPTV Service and corresponding applications and domains (paragraph 2A of the Interim Order). [14] Paragraph 2M of the Interim Order further enjoined and restrained Mr. White, by himself or by any company, partnership, trust, entity, with which he is associated or affiliated, or person under his authority or control, from directly or indirectly selling, assigning, alienating, transferring, or otherwise disposing of his assets. [15] On November 24, 2020, Mr. White was personally served with the Interim Order at his residence in accordance with its terms. [16] The Interim Order provided that it would remain valid for a period of not more than 14 days, within such time the Plaintiffs were required to bring a motion to review the execution of the Order and consider any application to convert the interim relief into interlocutory relief. [17] At the time of service of the Interim Order, and during its execution, the terms of the Interim Order were explained to Mr. White by Mr. David Hutt, the Independent Supervising Solicitor (ISS) and by Plaintiffs’ counsel, including those relating to his right to consult with counsel, his obligations under the Interim Order, and the potential of an adverse inference being drawn in case of non-compliance. [18] Mr. White was informed by the ISS, in particular, that failure to comply with the provisions of the Interim Order would put him in breach of its terms and subject him to facing a motion for contempt of court, which could result in a fine and/or imprisonment. [19] Mr. White was given the opportunity to ask questions about the Interim Order. Mr. White was also informed that he was entitled to seek advice from his own counsel before deciding whether to comply with the Interim Order provided that such advice was sought and obtained within a reasonable time and did not exceed two (2) hours from the time the Interim Order had been explained. [20] During the execution of the Interim Order, Mr. White claimed to have no knowledge or involvement with the Beast IPTV Service. [21] Mr. White was provided an opportunity to contact a lawyer, but was unable to reach one during the window of time provided in the Interim Order. Eventually, someone from the execution team put Mr. White in touch with a lawyer, Mr. Barry Mason. After receiving some legal advice from Mr. Mason, Mr. White refused to permit entry to his residence or provide any information required by the Interim Order. [22] On November 25, 2020, Mr. White sought legal advice from another lawyer, Mr. Paul Lomic. That same day, Mr. White took the Beast IPTV Service offline, including the Beast IPTV.tv site and the web player accessible at watch.BeastIPTV.tv. [23] On November 30, 2020, Mr. White retained new counsel, Mr. Howard Knopf, who then proceeded to request an adjournment of the review motion scheduled for December 7, 2020. Justice Roy granted the adjournment request and ordered that the Interim Order would remain valid and be continued until a judgment on the review motion was rendered. III. Contempt Charges [24] The review motion was heard on December 18, 2020. On January 14, 2021, Justice Roy issued his decision in Warner Bros granting an interlocutory injunction and charging Mr. White and Mr. Wright with five counts of contempt of court pursuant to Rule 466(1)(b) of the Federal Courts Rules, SOR/98-106 [Rules], namely: Mr. White and Mr. Wright, disobeying paragraph 2B) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose any of the technical information about the Beast IPTV Service as required at paragraphs 2B) of the Interim Orders, and by instead falsely claiming to have no knowledge of the Beast IPTV Service; Mr. White and Mr. Wright, disobeying paragraphs 2I), 3A) and 3B)i. of the Interim Order, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with third parties with their phones or other electronic devices during the execution of the Interim Orders in order to interfere with the execution of the Interim Orders and conceal evidence, notably by instructing third parties to delete websites, infrastructure or evidence related to this proceeding; Mr. White and Mr. Wright disobeying paragraph 3B)i. of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by communicating with one another and with third parties regarding the existence of this proceeding and of the Interim Order within forty-eight (48) hours after the service of the Interim Orders upon them; Mr. White and Mr. Wright disobeying paragraphs 2J) and 2K) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by refusing to disclose to the independent supervising solicitor and the Plaintiffs’ solicitor any of the financial information, as required at paragraphs 2J) of the Interim Orders, and by refusing to provide any consent to authorize financial institutions or other service providers to make such disclosures, as required at paragraphs 2K) of the Interim Orders; Mr. White and Mr. Wright disobeying paragraph 2A) of the Interim Orders, thereby constituting contempt of Court under Rule 466(1)(b) of the Federal Courts Rules, by: developing, operating, maintaining, promoting, providing support, selling subscriptions, or authorizing anyone to sell subscriptions to unauthorized IPTV services, including the Beast IPTV Service; developing, maintaining, updating, hosting, distributing, promoting or selling any software application that provides access to unauthorized IPTV services, including the Beast IPTV Service; operating, maintaining, updating, hosting, promoting or selling access to the Internet domains and subdomains through unauthorized IPTV services, including theBeast IPTV Service; by themselves or by their employees, representatives and agents, or by any company, partnership, trust, entity, or person under their authority or control, or with which they are associated or affiliated, and by failing to take the necessary steps to ensure that such persons would cease these activities after service of the Interim Orders upon the Defendants. IV. Contempt Hearing [25] The contempt hearing was scheduled for September 20, 2021. In early September 2021, Mr. White indicated he would be entering a plea of guilty with respect to the charges of contempt. The parties subsequently produced an Agreed Statement of Facts. [26] On September 20, 2021, Mr. White formally pleaded guilty to all the charges of contempt. The facts supporting the contempt charges, all admitted by Mr. White, are broken down below into three categories: A) Non-disclosure of Beast IPTV servers and domains; B) Non-disclosure of financial information and; C) Communications with others. A. Non-disclosure of Beast IPTV servers and domains [27] Mr. White acquired and paid for various servers and hosting services used in association with the Beast IPTV Service, including from server/hosting providers, Mach Host, Zenex 5ive, reliablesite, and Datapacket/DataCamp [the “Beast IPTV Servers”]. [28] At the time of the execution, Mr. White and six other individuals all had possession of, or access to, the identity, location and login credentials of the Beast IPTV Servers and possession of, or access to, the credentials to access the server/hosting provider accounts associated with the Beast IPTV Servers. The six other individuals were Mr. Wright, and individuals identified as “Q”, “Slip”, “Andrew”, “Sal” and “Jay Stevens”. [29] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs any information relating to the identity, location or login credentials of the Beast IPTV Servers or any other servers, nor the server/hosting provider accounts associated therewith. [30] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had knowledge of at least some of the registrar accounts associated with the following domains used in association with the operation or promotion of the Beast IPTV Service [the “Beast IPTV Domains”]: BeastIPTV.tv Beasthosts.net Beasthosts.org Powergraphics.shop Powergraphicsiptv.shop Beasttv.io Beasttv.cc BeastIPTV.cc Beasthosts.com Beasthosting.org BeastIPTV.com Strikeforceseo.com [31] At the time of the execution, Mr. White, Mr. Wright and Jay Stevens all had possession of, or access to, the login credentials for the registrar accounts associated with the Beast IPTV Domains. [32] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs, the registrar accounts and corresponding login credentials for the Beast IPTV Domains or any other domain or subdomain. B. Non-disclosure of financial information [33] At the time of the execution, Mr. White, Mr. Wright and Sal all had possession of, or access to, invoices relating to the Beast IPTV Servers. [34] During the execution, Mr. White did not disclose to the ISS or to the Plaintiffs the invoices associated with the Beast IPTV Servers. [35] At the time of execution, Mr. White and Mr. Wright both had control of, or access to, PayPal accounts associated with email addresses [email protected] and [email protected] [Beast IPTV PayPal Accounts], which were used in association with the operation of the Beast IPTV Service. [36] During the execution of the Interim Order, Mr. White did not identify or disclose any information to the ISS or to the Plaintiffs related to the Beast IPTV PayPal Accounts. [37] During the execution of the Interim Order, Mr. White did not disclose to the ISS or to the Plaintiffs the existence of any assets, revenues, or any financial documentation related to him or to the Beast IPTV Service. [38] During the execution of the Interim Order, Mr. White did not disclose the identity of any bank, financial institution, or other financial service provider responsible for any asset related to him or the Beast IPTV Service. [39] On September 3, 2021, Mr. White provided his written consent to authorize any bank, financial institution or other financial service provider to disclose to the Plaintiffs’ solicitors any information pertaining to assets that are directly or indirectly owned or controlled by him. C. Communications with others [40] At the time of service of the Interim Order and during the execution, Mr. White was informed that once he was served with the Interim Order, he could only use electronic devices under the supervision of the ISS. He was also informed that he should not be communicating about this matter with anyone for 48 hours, except with counsel for the purpose of seeking and obtaining legal advice. [41] During the morning of the execution, Mr. White breached the Interim Order by instructing a Beast IPTV server manager, known as Jay Stevens, to delete the powergraphicsiptv.shop and Beast IPTV.cc domains. [42] By 12:30 pm EST, the Beast IPTV.cc and powergraphicsiptv.shop domains had been suspended or otherwise taken offline. [43] Subsequent to Mr. White taking the Beast IPTV Service offline, a third party brought the service back online and changed the credentials needed to access the domain registrar. [44] In breach of the Interim Order, Mr. White also communicated with Mr. Wright within the first 48 hours of being served with the Interim Order about each having been served with the Plaintiffs’ claim and the Interim Order, and the difficulties each were having with respect to retaining a lawyer. [45] On November 25, 2020, Mr. White also breached the Interim Order by disclosing the existence of the proceeding and execution of the Interim Order with another third party associated with the Beast IPTV Service known as Sal. [46] At about 10:17 pm EST on November 25, 2020, Mr. White had a telephone conversation with Jay Stevens. During the 31-minute call, Mr. White rambled on about the execution of the Interim Order and how he planned to respond to the proceedings. V. Sentencing Hearing [47] At the parties’ request, the sentencing phase of the contempt proceeding was adjourned pending the adjudication of an appeal by Mr. White from the Judgment of Justice Roy dated January 14, 2021. The appeal was dismissed from the bench by the Federal Court of Appeal on February 23, 2022: White (Beast IPTV) v Warner Bros Entertainment Inc, 2022 FCA 34. [48] In accordance with my Order dated May 13, 2022, the Plaintiffs filed a sentencing hearing record that contains the parties’ affidavit evidence, the Agreed Statement of Facts, read-ins from the examination for discovery of Mr. White, and copies of the documents identified and/or authenticated in the Agreed Statement of Facts and the discovery read-ins. The evidence also includes the audio recording of the telephone conversation between Mr. White and Jay Stevens on November 25, 2020 referred to in paragraph 46 above. A. The Plaintiffs’ Evidence [49] The Plaintiffs rely on the affidavits of Mr. Jason Vallée Buchanan, Ms. Martine Guy, Mr. Anthony J. Martin and Mr. Andrew McGuigan for the purposes of sentencing. Both Mr. Martin and Mr. McGuigan were cross-examined at the sentencing hearing. [50] Their evidence can be summarized as follows. [51] Mr. Buchanan is a paralegal employed by the Plaintiffs’ solicitors of record. He identifies and attaches various documents to his affidavit, including Mr. White’s affidavit of documents affirmed April 16, 2021 and a copy of the confidential affidavit of Mr. White sworn on July 21, 2022 in relation to an earlier motion by Mr. White for leave to sell assets. [52] Ms. Guy is a legal assistant employed by the Plaintiffs’ solicitors of record. She explains in her original and supplemental affidavits how legal fees and disbursements pertaining to the contempt proceedings related to Mr. White are accounted for under the law firm’s internal file and how they are divided between the Motion Pictures Association [MPA] Plaintiffs and Bell Media Inc. [Bell Media]. Attached to her three affidavits are copies of the invoices sent to the Plaintiffs that relate to the contempt proceedings. [53] Mr. Martin is an investigator in the Corporate Security Department of BCE Inc. [BCE], the parent company of Bell Media. He states in his affidavit that media content piracy is “an age-old problem faced by rightsholders,” including the Plaintiffs. He explains how the rapid expansion of television piracy has caused significant harm to, and has attacked the viability of, copyright creators and owners in Canada, including Bell Media. From his experience, those who illegally reproduce and distribute infringing copies of protected works often go to great lengths to conceal their identity and the true nature of their activities to avoid the legal consequences of their actions. Mr. Martin states that Bell Media and its affiliates have invested a significant amount of dedicated resources in launching and prosecuting legal actions against individuals and businesses engaged in such forms of piracy. He then goes on to outline a history of non-compliance with court orders among the content piracy community in Canada. [54] Mr. McGuigan is the Director of the Global Content Protection department [GCP] of the Motion Picture Association-Canada [MPA-Canada], an affiliate of the MPA and was personally involved in the GCP’s efforts to investigate the allegedly infringing activities of Beast IPTV. [55] Mr. McGuigan explains that the online infrastructure of the Beast IPTV Service consisted of a number of domains and content delivery servers that were critical to its functionality. According to Mr. McGuigan, if the requested credentials were provided to the ISS at the time the Interim Order was executed on November 24, 2020, it would have been possible to lock the registrar accounts and shutdown servers, rendering the Beast IPTV Service inoperable and avoid any potential of them being taken over by a third party. [56] Mr. McGuigan describes in great detail how the GCP was monitoring the Beast IPTV Service during the execution of the Interim Order, and in the following days, for any activities or changes to the Beast IPTV Service related to these enforcement efforts. [57] On November 25, 2020, the GCP observed the Beast IPTV Service, including the core beastiptv.tv domain, had been taken offline. However, on the next day, the GCP observed that certain aspects of the Beast IPTV Service were functioning again, including the Beast IPTV reseller/admin portal, which is the control panel used to manage user accounts and subscriptions. [58] On December 1, 2020, the GCP was able to confirm through testing that subscribers were still able to access and view content through the Beast IPTV via a web-based player, the Beast IPTV Android Application, and the Beast IPTV Perfect Player media player. The GCP also became aware through the Beast IPTV Telegram group that subscribers were complaining about not being able to renew their subscriptions. [59] While the GCP initially suspected on December 5, 2020 that Beast IPTV administrators were manually renewing subscription via PayPal as a stop-gap measure in response to some issue with Beast IPTV payment portals, it became apparent by about December 10, 2020 that those administrators were covertly attempting to enroll some of Beast IPTV’s subscriber base into a new spin-off service. [60] Following the shutdown of the Beast IPTV Service, messages were posted on the domain beastsoftware.net, a domain that the GCP had identified as being associated with payment support for the Beast IPTV Service prior to the execution of the Interim Order. The GCP obtained a screenshot from a social media post on December 26, 2020 of what appears to be a message posted on a Beast IPTV website the previous day. An excerpt of the screenshot is reproduced below. [61] According to Mr. McGuigan, the message appears to be a tactic employed to retain whatever funds had already been collected by the service and/or to potentially encourage users to contact the parties directly at the email provided to facilitate the subscribers’ migration to an alternative service. A similar message was posted on the billing.beastsoftware.net domain on December 26, 2020. [62] Mr. McGuigan states that over the last several years, the GCP has observed a pattern of those involved in the operation of unauthorized IPTV services to attempt to circumvent its enforcement efforts by transitioning subscribers to an alternative unauthorized service using data associated with the targeted data. [63] He provides as an example an authorized IPTV service known as Vader Streams that was the subject of a GCP investigation beginning in 2018. On March 11, 2019, eight months before the execution of the Interim Order in the present case, the MPA-Canada sent a cease and desist letter to Mr. White demanding that he take immediate steps to address the extensive copyright infringement of television programs and motion pictures that was occurring by virtue of his operation of the Internet website “Vaders.cc.” Mr. White was specifically warned that multiple judgments and orders had been issued by Canadian courts that provide for injunctive relief and important damage awards in cases dealing with the unauthorized dissemination of works owned by the major motion picture studios and other rightsholders that MPA-Canada represented. [64] Mr. McGuigan had several conversations with Mr. White following service of the cease and desist letter. Mr. White admitted to Mr. McGuigan that he operated several re-seller sites for Vader Streams and agreed to shut them down. However, Mr. White denied having any ties with the Beast IPTV Service and indicated that he was no longer involved with the sale of subscriptions or with the operation of unauthorized IPTV services. [65] The Vader Streams service was effectively shut down by the summer of 2019 following the commencement of litigation in this Court. [66] During his examination for discovery, Mr. White admitted that the Beast IPTV subscriber base grew significantly by transferring a large portion of his prior Vader Streams customers onto the Beast IPTV Service after the shutdown. [67] Mr. McGuigan concludes his affidavit by noting that individuals and companies involved in the operation of unauthorized IPTV services targeted by the GCP’s enforcement efforts have been able to use data associated with the targeted services to facilitate the migration of subscribers to alternative services. As a result, disruptions to subscribers are minimized and the targeted acts of infringement are essentially shifted elsewhere, rather than actually being shut down. B. Mr. White’s Evidence [68] Mr. White filed his own affidavit, along with the affidavit of Karen Laroque. [69] Ms. Laroque is a litigation law clerk with the law firm representing Mr. White. Attached to her affidavit are documents showing the continued efforts made by Mr. White to comply with the financial disclosure provisions of the Interim Order. These include supplemental affidavits of documents provided to the Plaintiffs over the course of a year. Ms. Laroque was not cross-examined. [70] In his affidavit, Mr. White expresses remorse for his actions that led to contempt of the Court. He states that he now fully understands the importance of court orders and the requirement to obey them in all respects. [71] Mr. White states that while he does not offer any excuses for his failure to fully comply with the Interim Order, he claims that it was due in “significant measure” to his reliance on inadequate legal advice from Mr. Mason. Mr. White states that he refused to provide the required information after he was advised by Mr. Mason “that the team of lawyers could not do anything to [him] that day” and that he “did not need to take any actions and just wait until [he] found proper legal representation.” [72] Mr. White sets out in his affidavit some personal circumstances that he wishes the Court to consider in mitigation of the sentence, including his son’s medical condition, his guilty plea, and the fact that this is the first time he has been charged with civil contempt. [73] At the hearing, Mr. White repeated his apology to the Court. He acknowledged that his decision not to follow the court order was “serious” and was “a horrible error of judgment” on his part. He was then cross-examined extensively by Plaintiffs’ counsel. [74] Mr. White admitted in cross-examination that he was a registered member of the BlackHatWorld Forum going by the name “Activeits” and started a thread on March 14, 2018. entitled “How I make 1k a day or more” under the heading “Making Money.” [75] Although only a screenshot of page 4 of 5 of the thread was adduced in evidence, I infer from the title of the thread and the responses that are posted in the screenshot that Mr. White’s original post related to making money online by reselling IPTV subscriptions and that he was getting ready to share some tips online with like-minded people. The excerpts referred below, taken from the thread, are reproduced exactly as written. [76] On September 4, 2018, a member of the forum congratulated Mr. White for his work: “Looking forward for your step-to-step post! Good work on achieving 1k per day and I hope your keep on being successful!” However, on September 5, 2018, another member had this to say: “yeah proper jail time in the uk for this shit now. Get ready for some butt f*ucking.” On September 9, 2018, a third member posted a comment in the same vein. Watching an IPTV service (a legal one or illegal one) is not illegal in the US. Rebroadcasting copyright restricted content is though If you where to download and redistribute content you acquire from an illegal source, such as IPTV (but not limited to), and shared it, then that is illegal So what you were doing was safe IMO since you were not technically broadcasting anything, you were merely reselling subscriptions Are you now broadcasting? If so, even though there may be more profits, are you concerned about legal ramifications [77] Mr. White responded to the post on October 2, 2018. Apparently unfazed by the warnings, he bragged that he was not concerned about the legality of his actions and was well aware of potential consequences: No not concerned everything i do i do carefully i also recently found a payment gateway that actual accept credits cards and pays out in BTC or PP or anything i need they also can pay bills for me so i have no problems with tracing BTC is a mans best friend in this market also people have to remember that you do need to take precautions and also know the things that can happen if shit goes south just gotta play things smart there is a TON of money to be made in IPTV and I’m just getting started! Thanks for the support everyone! [78] On cross-examination, Mr. White admitted that he was holding at least $744,000 across several bank accounts at the time he was served with the Interim Order. He also admitted that immediately after the execution of the Interim Order, he went to the bank and withdrew $10,000 in hundred-dollar bills. [79] Mr. White also acknowledged that up to the date of the sentencing hearing, he had still not identified, nor disclosed, details of various investment accounts with WealthSimple and Questrade and a Coinbase cryptocurrency account, the existence of which the Plaintiffs were only able to identify by scouring the hundreds of pages of banking transaction records provided by Mr. White. C. Credibility of the Witnesses [80] Mr. White submits that the evidence of Mr. Martin and Mr. McGuigan is almost entirely hearsay, speculative or irrelevant and should be given little, if any, weight. I disagree. [81] Mr. Martin provides useful context to the Court to better understand the piracy problem faced by rightsholders in Canada, the harm such piracy has created to the viability of copyright creators and owners, and the significant amounts of dedicated resources these creators and owners have expended over the years in launching and prosecuting legal actions against individuals and businesses engaged in some forms of piracy. His evidence is well supported and not contentious. [82] As for Mr. McGuigan, I am satisfied that given his role as Director of the GCP and his personal involvement in the GCP’s efforts to investigate the infringing activities of the Beast IPTV Service, he was in a position to know the facts sworn in his affidavit to be true: see O’Grady v Canada (Attorney General), 2016 FC 9, aff’d 2016 FCA 221 at paras 18 to 20. There is no speculation on his part. In fact, much of his evidence is corroborated through documentary evidence and, in many cases, by Mr. White’s own admissions. Moreover, he was not shaken on cross-examination on any material point. [83] I find the evidence of these two witnesses both credible and reliable. [84] As for Mr. White, suffice it to say that he came across as a totally unreliable witness. He was evasive and vague throughout his entire testimony, as well as conveniently forgetful on any matters that might tend to incriminate him, even when confronted with incontrovertible evidence. [85] Plaintiffs’ counsel put to Mr. White a number of statements that he made to Jay Stevens regarding the legal advice that he received from Mr. Lomic. Counsel for Mr. White objected to this line of questioning and argued that communication of the legal advice to a key member of Beast IPTV did not constitute an explicit or implicit waiver of the solicitor-client privilege. I disagree. [86] There is no indication that Mr. Lomic was retained to represent any members of the Beast IPTV Service, other than Mr. White. He freely talked about the legal advice he received from Mr. Lomic with Jay Stevens and expressed frustration because it was not what he wanted to hear. In any event, even if privilege was not waived, Mr. White placed the legal advice he received at issue by stating at paragraph 32 of his affidavit that: “I now realize that following this advice (from Mr. Mason) resulted in me not complying with all the provisions of the November 17, 2020 Order, which led to the finding that I was in contempt.” By relying on the fact of taking legal advice as a defence or excuse for his conduct, Mr. White necessarily put in issue all the legal advice he received when he breached the terms of the Interim Order in such a way that it would be unfair to shield those communications from disclosure: Apotex Inc v Canada (Minister of Health), [2004] 2 FCR 137, aff’d 2004 FCA 280, at para 44. VI. Principles for Sentencing for Civil Contempt [87] The power of courts to enforce their process is a cornerstone of the rule of law. For the judicial process to function, orders of the Court must be respected. [88] The Supreme Court of Canada in United Nurses of Alberta v Alberta (Attorney General), [1992] 1 SCR 901 at 931 explained the principle underlying the importance of complying with court decisions: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [89] This principle was reiterated by Chief Justice Paul Crampton in the recent case of Bell Media Inc v Macciacchera (Smoothstreams.tv), 2023 FC 801 at para 1: “Those who decide when and under what circumstances they will comply with a court order essentially take the law into their own hands. That cannot be countenanced in a society governed by the rule of law.” [90] This Court’s authority to impose penalties on a contemnor is governed by Rules 466 to 472 of the Rules. [91] Rule 472 sets out the penalties that may be issued in contempt proceedings. Penalty Peine 472 Where a person is found to be in contempt, a judge may order that (a) the person be imprisoned for a period of less than five years or until the person complies with the order; (b) the person be imprisoned for a period of less than five years if the person fails to comply with the order; (c) the person pay a fine; (d) the person do or refrain from doing any act; (e) in respect of a person referred to in rule 429, the person’s property be sequestered; and (f) the person pay costs. 472 Lorsqu’une personne est reconnue coupable d’outrage au tribunal, le juge peut ordonner : a) qu’elle soit incarcérée pour une période de moins de cinq ans ou jusqu’à ce qu’elle se conforme à l’ordonnance; b) qu’elle soit incarcérée pour une période de moins de cinq ans si elle ne se conforme pas à l’ordonnance; c) qu’elle paie une amende; d) qu’elle accomplisse un acte ou s’abstienne de l’accomplir; e) que les biens de la personne soient mis sous séquestre, dans le cas visé à la règle 429; f) qu’elle soit condamnée aux dépens. [92] Mr. Justice John Norris provides a helpful and comprehensive overview of the general principles of sentencing for civil contempt in Bell Canada et al v Red Rhino Entertainment Inc, 2021 FC 895 [Red Rhino] at paras 6-13. [93] As noted by Justice Norris, a judge has wide discretion to determine the appropriate sanction for civil contempt (Red Rhino at para 9; Tremaine v Canada (Human Rights Commission), 2014 FCA 192 [Tremaine] at para 26). [94] Sentencing principles in criminal law are applicable to cases of civil contempt (Tremaine at para 19). The Federal Court of Appeal in Tremaine outlines the framework for determining a “fit” sentence and emphasizes the importance of deterrence and proportionality as the objectives of sentencing: [21] In order to determine what is a “fit” sentence in a particular case, the sentencing judge must consider the range of sentences for similar offences set out in prior jurisprudence and adjust the sentence depending on the objectives of sentencing and any aggravating and mitigating factors applicable to the case at hand (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 43; Professional Institute of the Public Service of Canada v. Bremsak, 2013 FCA 214, [2013] F.C.J. No. 1009 at paragraph 33 [Bremsak]). [22] Courts also ought to consider the importance of specific and general deterrence for preserving public confidence in the administration of justice, while maintaining proportionality in sentencing (Canada (Minister of National Revenue) v. Marshall, 2006 FC 788, [2006] F.C.J. No. 1008 at paragraph 16 [Marshall]). [95] There are a number of aggravating and mitigating factors a court can consider when determining a sentenc

Warner Bros. Entertainment Inc. v. White (Beast IPTV)

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Warner Bros. Entertainment Inc. v. White (Beast IPTV)

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Full judgment (source text)

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