Court File No.

T-1679-15
FEDERAL COURT
BETWEEN:
PARAMOUNT PICTURES CORPORATION
COLUMBIA PICTURES INDUSTRIES, INC.
SONY PICTURES TELEVISION INC.
TWENTIETH CENTURY FOX FILM CORPORATION
UNIVERSAL CITY STUDIOS PRODUCTION LLLP
UNIVERSAL NETWORK TELEVISION LLC
WARNER BROS. ENTERTAINMENT INC.
DISNEY ENTERPRISES INC.
Plaintiffs
- andDA VID LEMARIER,
also d.h.a. W ASABI TECHNOLOGIE
VPN.HT LIMITED
ROBERT ENGLISH
LOUIE POOLE
Defendants

STATEMENT OF CLAIM
(Filed on this 9th day of October, 2015)

TO THE DEFENDANTS:
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the
Plaintiffs. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are
required to prepare a statement of defence in Form 171B prescribed by the Federal Courts Rules,
serve it on the Plaintiffs' solicitor or, where the Plaintiffs do not have a solicitor, serve it on the
Plaintiffs, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS
after this statement of claim is served on you, if you are served within Canada.
If you are served in the United States of America, the period for serving and filing your
statement of defence is forty days. If you are served outside Canada and the United States of
America, the period for serving and filing your statement of defence is sixty days.
Copies of the Federal Courts Rules, information concerning the local offices ofthe Court
and other necessary information may be obtained on request to the Administrator of this Court at
Ottawa (telephone 613-992-4238) or at any local office.
IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against
you in your absence and without further notice to you.

October 9, 2015

Issued bYEMMA:Wl Illi I Ii MUCH

REGISTRY OFl?lcmt
Address of local office:
30 McGill Street
Montreal, Quebe,c
H2Y 3Z7
CANADA
Telephone: (514) 283-4820
Facsimile: (514) 283-6004

TO:

DAVID LEMARIER
58, rue Elphege
Victoriaville (Quebec)
G6P 8E9 Canada

AND TO:

VPN.HT LIMITED
Suite 01, Room 1716C, Nan Fung Centre
264-298 Castle Peak Road
Tsuen Wan, Northern Territories
Hong Kong
-2-

C)

AND TO:

ROBERT ENGLISH
1038 Beaver Lane
Midhurst (Ontario)
LOL lXO Canada

AND TO:

LOUIE POOLE
10672 Madrona Drive
North Saanich (British Columbia)
V8L 5L8 Canada

-3-

CLAIM

1.

The Plaintiffs claim:

(a)

a declaration that copyright subsists in the cinematographic works listed in the
tables set out in Appendix 1 hereto (hereinafter the "Plaintiff Works") and that
said copyright is owned by the Plaintiff specified for each table;

(b)

a declaration that the Defendants:

1.

have infringed the Plaintiffs' copyright pursuant to section 27(2.3) of the
Copyright Act by providing services on the Internet primarily for the

purpose of enabling acts of copyright infringement, including of the
Plaintiff Works, leading to users of these services actually engaging in acts
of copyright infringement of the Plaintiff Works;

11 .

have induced Canadian Popcorn Time users to infringe the Plaintiffs'
copyright in the Plaintiff Works available on Popcorn Time, a sample of
which is listed in the tables set out in Appendix 2 hereto;

111.

have authorized Canadian Popcorn Time users to infringe the Plaintiffs'
copyright, consequently infringing the Plaintiffs' copyright in the Plaintiff
Works available on Popcorn Time pursuant to the last paragraph of section
3(1) and section 27(1) ofthe Copyright Act;

IV.

have

made

Plaintiff

Works

available

on

Popcorn

Time

by

telecommunication in a way that allows a member of the public to have
access to them from a place and at a time individually chosen by that
member of the public, consequently infringing the Plaintiffs' copyright in
the Plaintiff Works available on Popcorn Time pursuant to sections
2.4(l.1), 3(1)(f) and 27(1) of the Copyright Act;

-4-

(c)

interim, interlocutory and permanent injunctions enJommg and restraining the
Defendants, by themselves or by their shareholders, directors, officers,
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, from directly or indirectly:

1.

enabling, inducing or authorizing the reproduction or communication to
the public by telecommunication of the Plaintiff Works, including by
directly or indirectly participating in the development, operation,
distribution or promotion of the software application Popcorn Time, or of
any similar software application;

11.

enabling, inducing or authorizing the reproduction or communication to
the public by telecommunication of the Plaintiff Works, including by
directly or indirectly developing, operating, providing or promoting
Virtual Private Network (hereinafter "VPN") services integrated in and/or
coordinated with the software application Popcorn Time, or in any similar
software application;

111.

making the Plaintiff Works available to the public by telecommunication
in a way that allows a member of the public to have access to them from a
place and at a time individually chosen by that member of the public,
including by directly or indirectly participating in the development,
operation, distribution or promotion of the software application Popcorn
Time, or of any similar software application;

IV.

participating in the development of the software application Popcorn
Time, or of any similar software application;

v. operating the website www.popcorntime.io. or any other website
providing similar services;
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VI.

promoting the software application Popcorn Time, or any similar software
application;

(d)

a permanent injunction ordering David Lemarier to abandon and refrain from
reactivating

or

prosecuting

in

any

way

U.S.

Trademark

Application

No. 86/301,860 for the trademark POPCORN TIME;

(e)

damages suffered by the Plaintiffs and an accounting of the profits illegally made
by the Defendants or, in the alternative, statutory damages, as the Plaintiffs may
elect;

(f)

punitive and exemplary damages;

(g)

pre- and post-judgment interests;

(h)

costs of this action on a solicitor and client basis, plus GST and QST, including
expert's fees; and

(i)

such further and other relief as to this Honourable Court may seem just.

I.

THE PARTIES

2.

The Plaintiff Paramount Pictures Corporation (hereinafter "Paramount") is a corporation
incorporated and subsisting under the laws of the state of Delaware, U.S.A., having a
principal place of business at 5555 Melrose Avenue, Los Angeles, California 90038,
U.S.A.

3.

The Plaintiff Columbia Pictures Industries, Inc. (hereinafter "CPU") is a corporation
incorporated and subsisting under the laws of the state of Delaware, U.S.A., having a

-6-

principal place of business at 10202 West Washington Boulevard, Culver City, California
90232, U.S.A.
4.

The Plaintiff Sony Pictures Television Inc. (hereinafter "SPT") is a corporation
incorporated and subsisting under the laws of the state of Delaware, U.S.A., having a
principal place of business at 10202 West Washington Boulevard, Culver City, California
90232, U.S.A.

5.

The Plaintiffs CPII and SPT are wholly owned indirect subsidiaries of non-party Sony
Pictures Entertainment Inc. (hereinafter "Sony Pictures").

6.

The Plaintiff Twentieth Century Fox Film Corporation (hereinafter "Fox") is a
corporation incorporated and subsisting under the laws of the state of Delaware, U.S.A.,
having a principal place of business at 10201 West Pico Boulevard, Los Angeles,
California 90035, U.S.A.

7.

The Plaintiff Universal City Studios Production LLLP (hereinafter "Universal Studios")
is a limited liability limited partnership subsisting under the laws of the state of
Delaware, U.S.A., having a principal place of business at 100 Universal City Plaza,
Universal City, California, 91608, U.S.A.

8.

The Plaintiff Universal Network Television LLC (hereinafter "Universal Television") is a
corporation incorporated and subsisting under the laws of the state of Delaware, U.S.A.,
having a principal place of business at 100 Universal City Plaza, Universal City,
California, 91608, U.S.A.

9.

The Plaintiffs Universal Studios and Universal Television are affiliates of non-party
Universal City Studios LLC (hereinafter "Universal").

10.

The Plaintiff Warner Bros. Entertainment Inc. (hereinafter "Warner Bros.") is a
corporation incorporated and subsisting under the laws of the state of Delaware, U.S.A.,

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having a principal place of business at One Time Warner Center, New York, New York
10019, U.S.A.

11.

The Plaintiff Disney Enterprises Inc. (hereinafter "DEI") is a corporation incorporated
and subsisting under the laws ofthe state of Delaware, U.S.A., having a principal place of
business at 500 South Buena Vista Street, Burbank, California 91521, U.S.A.

12.

The Defendant David Lemarier is an individual residing at 58, rue Elphege, Victoriaville
(Quebec), G6P 8E9 Canada. David Lemarier does business in his personal name, under
the business name Wasabi Technologie, and through the Defendant VPN.ht Limited.

13.

The Defendant VPN.ht Limited is a corporation incorporated and subsisting under the
laws of Hong Kong, having a registered office at Suite 01, Room 1716C, Nan Fung
Centre, 264-298 Castle Peak Road, Tsuen Wan, Northern Territories, Hong Kong.

14.

David Lemarier is the Chief Executive Officer of VPN.ht Limited and one of its two
directors, the other director being an individual named Mohamed Amine Faouani,
residing in Annaba, Algeria.

15.

The Defendant Robert English is an individual residing at 1038 Beaver Lane, Midhurst
(Ontario), LOL lXO Canada.

16.

The Defendant Louie Poole is an individual residing at 10672 Madrona Drive, North
Saanich (British Columbia), V8L 5L8 Canada. Louie Poole is an employee of the
Defendant VPN.ht Limited.

A)

The Business and Rights of the Plaintiffs

17.

The Plaintiffs and their affiliates are well-known entertainment companies engaged in,

inter alia, the production and distribution of feature-length motion pictures and television
programs, either directly or through a parent, affiliates or subsidiaries, for some of which

-8-

the Plaintiffs own the copyright in Canada (collectively the "Plaintiff Works", or
separately the "Paramount Works", "CPII/SPT Works", "Fox Works", "Universal
Works", "Warner Bros. Works" and "DEI Works").

18.

The Plaintiffs or their affiliates distribute these motion pictures and television programs
in theatres, through digital services, through cable and satellite television providers and
on pre-recorded physical media such as DVDs and BIu-ray discs.

19.

In Canada, copyright in the Plaintiff Works is owned by:
(a) Paramount, for the Paramount Works;
(b) CPII, for the CPIIISPT Works which are motion pictures;

(c) SPT, for the CPIIISPT Works which are television programs;
(d) Fox, for the Fox Works;

(e) Universal Studios, for the Universal Works which are motion pictures;
(f) Universal Television, for the Universal Works which are television programs;

(g) Warner Bros., for the Warner Bros. Works; and
(h) DEI, for the DEI Works.
20.

Lists of the Plaintiff Works separated by Plaintiff, along with copies ofthe Certificates of
Registration of Copyright for a sample of these works, are set out in Appendix 1 hereto.

-9-

21.

Pursuant to Section 53(2) of the Copyright Act, the Certificates of Registration of
Copyright are evidence that copyright subsists in the Plaintiff Works and that said
copyright is owned by the Plaintiff specified thereon.

22.

Pursuant to Section 3 of the Copyright Act, the Plaintiffs have the sole right to, inter alia, :

(a) reproduce the Plaintiff Works or any substantial part thereof in any material form
whatever;

(b) communicate the Plaintiff Works to the public by telecommunication, including
the right to

(c) make the Plaintiff Works available to the public by telecommunication in a way
that allows a member of the public to have access to them from a place and at a
time individually chosen by that member ofthe public; and

(d) authorize such acts.

II.

THE OPERATION OF POPCORN TIME AND VPN.HT LIMITED

23.

Since April 2014, the individual Defendants David Lemarier, Robert English and Louie
Poole have been developing, operating, distributing and promoting the computer
application "Popcorn Time".

24.

Popcorn Time is a free, user-friendly computer application having an interface
comparable to the popular service "Netflix", with the exception that the copies of motion
pictures and television programs made available by the service are unauthorized by the
copyright owner and that by using the service, its users are engaging in acts of copyright
infringement.

- 10-

25.

Popcorn Time is an "open source" software and its development has changed hands a
number of times since its launch in March 2014. While there are other lesser known
Popcorn Time versions available on the Internet, each developed by different individuals,
the official and most popular version has been hosted and developed on the website
www.popcorntime.io (and its precursor www.get-popcorn.com) since April 2014. All
further reference to "Popcorn Time" is a reference to that version of Popcorn Time.

26.

Popcorn Time can be downloaded for free at the website www.popcorntime.io and can be
installed and used on virtually any modem digital device, including PC, Mac and Linux
personal computers, Android smartphones and tablet computers. Once installed on such
computer or other device, Popcorn Time allows its users to watch content on said device
and includes the option to watch that content directly on a television.

27.

As shown below, once users have downloaded and installed Popcorn Time, they can
easily navigate through a polished and user-friendly interface to simply search for the
motion picture they want to watch, after which they can click on the image of a poster
corresponding to that motion picture and click the "Watch Now" button. The motion
picture will then start playing almost instantly, on an on-demand basis, and in a manner
akin to broadcasting, the whole without payment by the user.

- 11 -

Popcorn Time motion picture page

Popcorn Time page for the motion picture Hot Pursuit after a user has clicked on
the corresponding poster

- 12 -

User watching Hot Pursuit on Popcorn Time after having clicked "Watch Now"

28.

The user experience for selecting and playing television programs through Popcorn Time
is substantially the same as the experience for selecting and playing motion pictures, with
the exception that users are shown a selection of television series cover art. Once users
click on a particular television series, they can select which season and which specific
episode to watch.

29.

Thousands of motion pictures and television programs are available on Popcorn Time,
including a large number of Plaintiff Works, a sample of which is listed in Appendix 2
hereto.

30.

Plaintiff Works available on Popcorn Time are typically sourced from unauthorized
reproductions of pre-retail or retail Blu-rays or DVDs, unauthorized reproductions of
high definition transmissions, or reproductions from other unauthorized digital sources.

- 13 -

31.

It is estimated that millions of individuals use Popcorn Time around the world, a number

of which are located in Canada. This wide, unauthorized availability of Plaintiff Works to
millions of individuals directly leads to acts of copyright infringement on a massive scale.
In fact, the amount of unique visitors to the Popcorn Time website is constantly
increasing and reached over 1.5 million unique visitors in July 2015.

32.

Normally, users who engage in illegal activities on the hlternet can be identifiable
through their IP address (i.e. the unique numerical identifier of a user's computer on a
network, for example on the Internet), which makes it possible for copyright owners and
law enforcement to notify these users of their acts of copyright infringement and/or to
take action against them.

33.

However, illternet users can use a "Virtual Private Network" (hereinafter "VPN") to
mask their IP address, making them completely anonymous and unidentifiable by third
parties.

34.

In December, 2014, a paid VPN service provided by the Defendant VPN.ht Limited was
integrated in Popcorn Time (this Popcorn Time add-on is hereinafter referred to as the
"PT Add-On"). The integration of the PT Add-On acts as an important enticement for
users of Popcorn Time to engage in acts of copyright infringement, and is explicitly
marketed as such on its website. The PT Add-On thus increases the amount of users of
Popcorn Time ultimately engaging in acts of copyright infringement. David Lemarier and
VPN.ht Limited derive significant income from the provision of the PT Add-On.

III.

POPCORN TIME USERS INFRINGE THE PLAINTIFFS' COPYRIGHT

35 .

Popcorn Time makes available to its users motion pictures and television programs on the
Internet by using the "BitTorrent" network. The BitTorrent network is a peer-to-peer
network that allows illternet users to download copies of files from other users (i.e. make
a reproduction of another user's copy) and upload copies of files to other users (i.e.
transmit a copy to other users) over the Internet.
- 14 -

36.

As they are watching a Plaintiff Work using Popcorn Time, users are downloading the
file containing that Plaintiff Work on their computer from one or more other user(s), thus
making a complete and unauthorized reproduction of that Plaintiff Work on their
computer. By default, this reproduction is stored temporarily on the users' computer.
Alternatively, users have the option of easily keeping a permanent reproduction of the
Plaintiff Work on their computer by simply unticking a box in the Popcorn Time settings.

37.

Because of the file-sharing nature of the BitTorrent network, users of Popcorn Time who
are still watching a Plaintiff Work or who already possess an unauthorized reproduction
of a Plaintiff Work (e.g. after having watched the Plaintiff Work on Popcorn Time) also
transmit that Plaintiff Work to other Popcorn Time users through the Internet. These
users are therefore communicating unauthorized copies of Plaintiff Works to other
Popcorn Time users on an on-demand basis.

38.

By these activities, Canadian Popcorn Time users:

a. reproduce Plaintiff Works without the authorization of the Plaintiffs,
consequently infringing the Plaintiffs' copyright in these Plaintiff Works
pursuant to sections 3(1) and 27(1) of the Copyright Act;

b. communicate Plaintiff Works to the public by telecommunication without the
authorization of the Plaintiffs, consequently infringing the Plaintiffs' copyright in
these Plaintiff Works pursuant to sections 3(1)(f) and 27(1) of the Copyright Act;
and
c. make Plaintiff Works available to the public by telecommunication in a way that
allows members of the public to have access to them from a place and at a time
individually chosen by these members of the public, consequently infringing the
Plaintiffs' copyright in these Plaintiff Works pursuant to sections 2.4(1.1), 3(1)(f)
and 27(1) of the Copyright Act;

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IV.

THE DEFENDANTS ENABLE, INDUCE, AND AUTHORIZE THE POPCORN
TIME USERS' ACTS OF COPYRIGHT INFRINGEMENT AND MAKE THE
PLAINTIFF WORKS AVAILABLE TO THE PUBLIC

39.

Given that David Lemarier, Robert English and Louie Poole conceal their identity with
anonymous usernames (notwithstanding Robert English's appearances in the media under
his personal name), the full extent of their participation in the development, operation and
distribution of Popcorn Time is not fully known to the Plaintiffs.

40.

However, the Plaintiffs have uncovered that, in the context of the development of
Popcorn Time, David Lemarier, Robert English and Louie Poole have been responsible
for numerous significant contributions and improvements to various features which make
Popcorn Time a more advanced and polished application. These contributions further
facilitate mass copyright infringement and include the ability to watch television
programs, improvements to the user interface, the implementation of the PT Add-On
within Popcorn Time, the testing of Popcorn Time, and the compilation of the Popcorn
Time source code into an executable computer application for its users.

41.

While all three individual Defendants have materially participated in the development of
Popcorn Time, Louie Poole has been the most prolific of all Popcorn Time developers
since April 2014, having made the most contributions to the Popcorn Time source code
than any other developer during that period.

42.

Beyond their participation in the development of Popcorn Time, David Lemarier, Robert
English and Louie Poole are also involved in the operation, distribution and/or promotion
of Popcorn Time and of the PT Add-On.

- 16 -

43.

In the context ofthese additional activities,

a. David Lemarier,
1.

owns

and operates the website www.popcorntime.io. which, inter alia,

makes Popcorn Time available to be downloaded by users and serves as a
development platform for its developers;
11.

has applied to register the trademark POPCORN TIME in the United
States under U.S. Trademark Application No. 86/301,860, which was filed
on June 5, 2014 for use in association with the goods "[d]ownloadable
computer software used for streaming multimedia content images, videos
and audio from peer to peer";

111.

is an active contributor to the Popcorn Time social media;

IV.

IS

the Chief Executive Officer and one of the two directors of the

Defendant VPN.ht Limited, which provides the PT Add-On integrated in
Popcorn Time; and
v. receives monetary donations made to Popcorn Time through his business
name Wasabi Technologie;
b. Robert English,
1.

promotes Popcorn Time by having authored a large number of blog
entries posted on the Popcorn Time website (www.popcorntime.io).
containing announcements to the attention of Popcorn Time users on
various topics;

11.

has authored the contact page for Popcorn Time, which includes details
as to how to donate funds to the Popcorn Time development team;

111.

is an active contributor to the Popcorn Time social media; and

- 17 -

IV.

is the public voice for promoting Popcorn Time, having been quoted
multiple times by media outlets as being a part of the Popcorn Time
development team and, on multiple occasions, having acknowledged
Popcorn Time's illegal character and declared that the Popcorn Time
team would attempt to circumvent court orders.

c. Louie Poole
1.

11.

is an active contributor to the Popcorn Time social media; and
has been employed as a software engineer by VPN.ht Limited since at
least as early as September, 2015.

44.

The individual Defendants David Lemarier, Robert English and Louie Poole therefore
develop, operate, distribute and promote a service which they know is provided for the
sole purpose of enabling acts of copyright infringement, including the infringement of
copyright in the Plaintiff Works. In fact, Popcorn Time has no legitimate use other than
enabling these acts of copyright infringement.

45.

Instead of limiting acts of copyright infringement through Popcorn Time, David
Lemarier, Robert English and Louie Poole are active in further developing, operating,
distributing and promoting Popcorn Time, thus making it more attractive to a wider range
of users and consequently increasing the amount of copyright infringement taking place
through Popcorn Time.

46.

David Lemarier and Robert English have both been responsible for seeking and receiving
monetary donations made to Popcorn Time, while Louie Poole is employed by the
Defendant VPN.ht Limited. Moreover, payments made through PayPal for the PT AddOn are sent to Wasabi Technologie, a sole proprietorship registered in the name of David
Lemarier. The sale of the PT Add-On service generates important monthly revenues
which directly profit the Defendants David Lemarier and VPN.ht Limited, and the
Defendant Louie Poole as an employee ofVPN.ht Limited. All the individual Defendants
- 18 -

as well as VPN.ht Limited derive financial benefits from their participation in Popcorn
Time.

47.

Given the close relationship between Popcorn Time and VPN.ht Limited, including the
fact that David Lemarier and Louie Poole both act as developers of Popcorn Time and as
officer or employee ofVPN.ht Limited, the above allegations pertaining to Popcorn Time
are equally applicable to VPN.ht Limited.

48.

By these activities, the Defendants:

(a)

infringe the Plaintiffs' copyright pursuant to section 27(2.3) of the Copyright
Act by providing services on the Internet primarily for the purpose of enabling
acts of copyright infringement, including of the Plaintiff Works, leading to the
services' users actually engaging in acts of direct copyright infringement of the
Plaintiff Works;

(b)

induce Canadian Popcorn Time users to infringe the Plaintiffs' copyright in the
Plaintiff Works;

(c)

authorize Canadian Popcorn Time users to infringe the Plaintiffs' copyright,
consequently infringing the Plaintiffs' copyright pursuant to the last paragraph
of section 3(1) and section 27(1) of the Copyright Act; and

(d)

make the Plaintiff Works available to the public by telecommunication in a
way that allows a member of the public to have access to them from a place
and at a time individually chosen by that member of the public, consequently
infringing the Plaintiffs' copyright in the Plaintiff Works pursuant to sections
2.4(1.1), 3(1)(f) and 27(1) ofthe Copyright Act;

49.

Acts of copyright infringement by Popcorn Time users cause damages to the Plaintiffs at
every stage of the legitimate distribution process for the Plaintiff Works.
- 19 -

50.

These damages take the form of, inter alia, undermining the Plaintiffs' right to control
the time, place and circumstances in which their works are displayed, reproduced, made
available and performed; irreparable damage to the Plaintiffs' relationship with
authorized distributors of their works; and incalculable losses in box office revenues and
in revenues from home entertainment physical media (e.g. DVD, Blu-ray), digital
transmission (e.g. Netflix, Hulu, iTunes and other online content delivery systems) and
traditional transmissions (free and paid cable television, etc.).

51.

Unless restrained by this Honourable Court, the Defendants will continue their aforesaid
illegal activities, the Plaintiffs will continue to suffer damages, and the Defendants will
continue to illegally derive profits.

52.

The Plaintiffs propose that this action be tried in Montreal, Quebec.

DATED AT Montreal, Quebec, on October 9t \ 2015.

Sonr-h cf

SMART & BIGGAR
1000 de la Gauchetiere Street West
Suite 3300
Montreal (Quebec) H3B 4W5
Mr. Franyois Guay
Mr. Guillaume Lavoie Ste-Marie
Tel. 514-954-1500
Fax. 514-954-1396
(Reference: 88076-1)
Solicitors for the Plaintiffs

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