3. We need to keep current fair dealing purposes in s. 29 and include the words “such as”
7. We need to look carefully at enforcement issues
Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.
· Amend old pleadings to add a new cause of action involving circumvention of technical protection measures. This comes more than two years after Justice Barnes ruled during the trial of the first case in 2016 that circumvention of TPMs has not been pleaded and allegations and arguments based on this would not be heard by the Court. Frankly, even if circumvention had been properly pleaded at the original trial, it’s very likely, as explained below, that it would have failed on the facts before the Court and any correct interpretation of the law;
· Convert these “simplified actions”, which had an upward limit of $50,000 in terms of liability, into normal actions with an enormous theoretical damage potential based, inter alia, upon the assertion that “Statutory damages for circumvention of a TPM may include statutory damages for the library of works behind the TPM. The Locked Articles subject to potential statutory damages in each of the Blacklock's cases is in the 1000's.” (footnote omitted); and,
· To seek punitive damages based upon extraordinarily unusual and even “personal allegations” and “personal attacks” (according to the Attorney General of Canada) on the Government’s lead senior counsel up to now, Alexandre Kaufman, which might have resulted in his removal from the file.
3. ; and,
· It waited a very long time to bring this motion – almost two years after Justice Barnes ruled that circumvention needed to be specifically pleaded;
· Most if not all the facts that Blacklock’s would presumably rely on, including the presence of password protection and how it operates, were before Judge Barnes in the first trial. The principles of stare decisis, issue estoppel and the need to put one’s “best foot forward at the first opportunity” could presumably be in play not only now but even if Blacklock’s gets to go forward;
· Many if not most of the cases under consideration are now said by the defendants to be statute barred because of the expiration of the applicable limitation period; and,
· Even if Blacklock’s succeeds in amending the pleadings in some of these case, it could face very large costs consequence because of, inter alia, prejudice to the defendants and the sheer scope of this motion, including the very serious and even “personal” nature of the allegations and attacks against former AGC counsel Alexandre Kaufman – now Master Kaufman.