Monday, October 14, 2019

The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?




                                           (Catherine Tait/CBC)
(Jennifer McGuire/CBC)

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law.  It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. MaGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative  Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory  injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old? I had thought that the recent Statement of Claim from Allarco about which I commented with controlled restraint was “unusual”, but this one is in some ways even more so.  

The CBC is apparently oblivious to the following absolutely basic principles of copyright law in Canada:
-        the copying of less than a “substantial part” of material simply does not engage the operation of the Copyright Act; 
-        even if the amount copied is somehow “substantial”, and even if the plaintiff owns the copyright, the fair dealing provisions of the Copyright Act are “always available” and must be given a “large and liberal interpretation”. And by liberal, I mean the same sense as the Supreme Court of Canada, which is obviously not in the partisan sense. See, of course, CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13; and,
-        Fair dealing purposes include those of research, education, criticism, or review – any or all of which may be applicable in this case – but which need not be addressed if there is no “substantial” copying in the first place.
Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:
One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.
The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

So, if Michael’s quantitative and other factual analysis is right, the Copyright Act isn’t even implicated because the copyright is not “substantial”, we don’t even need to worry about fair dealing, which, as Michael suggests, would likely be resolved in the Conservative Party of Canada’s favour. It’s very important in copyright law not to even open the fair dealing debate door unnecessarily or to do so only “in the alternative”  – when such fundamental threshold issues such as the absence of “substantial” copying my suffice to dismiss.

Once again for those who do not know history and thus are condemned to repeat it, the issues raised in this remarkable Statement of Claim are similar to those to those dealt with by the Federal Court of Appeal more than 30 years ago in a case that I have referred to before, namely that of the Federal Liberal Agency Liberal of Canada v. CTV, CBC and Global. In that case, the broadcasters, including CBC,  were actually ordered by the Court to broadcast a campaign ad containing allegedly infringing footage.

The CBC is seeking a permanent injunction and a declaration in addition to an interim and interlocutory injunction, concerning which there is nothing presently visible on the docket. Leaving aside the improbability of any success by the CBC in this matter, there are some possible journalistic, legal and political consequences of this unfortunate litigation that I cannot refrain from mentioning – even though I am neither a journalist nor a pundit nor a partisan in any sense:
-        The decision to name respected professional journalists Rosemary Barton and John Paul Tasker as plaintiffs either involved their consent (in which case their professional judgment would be very questionable) or did not involve their consent, in which case others may be in serious trouble. Putting somebody’s name on a lawsuit has serious consequences and requires their explicit consent. A named plaintiff is liable for costs and is subject to discovery;
-        Ms. Barton and Mr. Tasker, even with the embarrassing sudden about-face of their names being withdrawn from the pleading, are now inevitably compromised in their appearance of journalistic independence and their professional reputations as journalists on the eve of this historic election, unless there is an immediate flat out denial by all concerned that they consented to be plaintiffs along with an appropriate apology, and in which case there is a need for serious, decisive and immediate accountability. We have yet to see such an explicit statement. This statement by Jennifer McGuire and Luc Julien of CBC stops far short;  
-        One hopes that Ms. Barton and Mr. Tasker have good independent legal advice and good backing from their union if it is the case that they were involuntary named or pressured to join in this litigation;
-        The decision to proceed with this litigation,  which is apparently being directed by Ms. McGuire (which is effectively confirmed in this Globe and Mail article from October 12, 2019) must have been approved by Catherine Tait who is the President of the CBC and presumably by the CBC Board of Directors; 
-        If the CBC Board of Directors wasn’t involved in a decision of this magnitude, then, if not, why not? The implications then would be even more serious for all concerned;
-        If litigation of this order of magnitude can be launched without the blessing of the CBC President and its Board of Directors, that would seem to be a fatal flaw in CBC internal management and governance and there must be appropriate accountability;
-        The new President of the CBC has been largely invisible since her appointment well over a year ago, with the main notable exception of her absurd comparison of Netflix to British Raj colonial imperialism in India;
-        Whoever forms the next government needs to think very long and hard about who will be the next president of the CBC when the office becomes open less than four years from now, if not sooner. Likewise, regarding the Board of Directors positions;
-        For the enemies of the CBC, which ironically enough have included many Conservative politicians in the past and no doubt in the present, this move by the CBC is nothing less than a gift from heaven;
-        This ill-conceived lawsuit could very well prove to be the catalyst to a Conservative Party of Canada minority and maybe even a majority government.
-        This episode could be another step towards the CBC’s possible demise, which many would like to see, and maybe even close to the final nail in its eventual coffin, depending on who wins the election;
-        At the very least, nobody can watch CBC coverage of the current election without wondering about the journalistic independence and competence of its senior management; and,
-        All of this is very unfortunate. Despite the downhill spiral of the CBC under the current and previous two presidents, it still has a treasure trove of people, expertise, and archival material and must be saved and resurrected. Bad decisions, such as this litigation, must not be allowed to jeopardize such a legacy and its hopeful future resurrection. Canada without the CBC would be quite unthinkable.
It will be interesting to see if any credible copyright scholars, lawyers, or knowledgeable journalists rally to the side of CBC on this issue. I would be very surprised.

The CBC may be about to learn some hard and potentially very painful lessons about:
-        Copyright law;
-        The Streisand Effectwhereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet; and,
-        Governance of and by a major public broadcaster.
This election is fraught enough without this disastrous distraction. The fact that Canadians now may have reason to perceive doubt about the competence and journalistic independence of their national broadcaster at such a critical time is extremely regrettable.

HPK

Tuesday, October 08, 2019

The War on Piracy and the Attacks on Privacy in Canada: Copyright and Collateral Damage


A new lawsuit was launched on September 11, 2019 in the “Federal Court of Canada” [sic] by an entity known as ALLARCO, a.k.a. Super Channel, against four of Canada’s best known, most successful and most prestigious electronics retailers, i.e. Best Buy, Computers Canada, London Drugs and Staples. Here’s the Statement of Claim.  The suit is also again Does 1 to 50,000, presumably some of the customers of these retailers whose privacy could be at stake if Allarco gets its wishes. I can safely say that in nearly four decades of being an intellectual property lawyer, I have never seen a more unusual Statement of Claim. It refers to copyright infringement in unspecified works, circumvention, making available, unspecified “pirate devices”, trademark infringement, conspiracy, the Criminal Code, the Radio Communications Act, circumvention, theft, stealing, interference with the economic and business relations of the Plaintiff, and conspiracy, etc. (I may have missed some of the very many allegations in the very lengthy Statement of Claim), without getting very specific about anything. For those who wish to track this case, Here’s the docket.

The Statement of Claim alleges, inter alia,  that the stores “have offered for sale, sold, leased and continue to sell or lease Pirate Devices to John Doe Customers and advised, educated, counseled, encouraged, directed, induced, enabled and authorized John Doe Customers to achieve, download, install and operate services that result in the operation of the Pirate Devices and/or that enable and allow the John Doe Customers to access the Infringing Content”.

This is not the time or the place to comment in any detail on this Statement of Claim. Suffice it to say that it would hardly be surprising if it were to be tested vigorously pursuant to Federal Courts Rule 221 on such issues as lack particulars, lack of Federal Court jurisdiction, failing to state a cause of action, etc. Most challenges to pleadings at this stage result in leave to amend to some extent. However, this pleading is, as I said, very unusual indeed. If it is attacked, it will be interesting to see how much if any of it survives and whether leave to amend is granted and in what respect. That said, it should be noted that the lawyer behind this pleading has an interesting background. His name is Bill McKenzie and he’s been practising for ~40 years. Here’s his law firm. He does have one Supreme Court of Canada victory to his credit involving copyright  to some extent on behalf of Bell ExpressVu from 2002 that is sometimes cited. See Bell ExpressVu Limited Partnership v. Rex, [2002] 2 SCR 559, 2002 SCC 42 (CanLII). Allarco has also engaged in a systematic and apparently expensive publicity campaign involving a press release and a dedicated website that interestingly enough includes a cross reference to the controversial FairPlay campaign launched by Bell, Rogers and others. The Allarco litigation website entitled “A Culture if Theft” also includes a video replete with dire and demonic “musical” sound effects and the trademarks of the corporate retailers apparently alleging illegal activity by them. It will be interesting to see whether this video may result in counterclaims in the Federal Court or one or more separate actions in the superior courts of one or more provinces.

Speaking of Bell and Rogers, they started a lawsuit in the Federal Court earlier this year in the GoldTV case aimed at site blocking and pursued unsuccessful aspirations to date in persuading the CRTC or the government to enable through means short of an actual court proceeding. Bell and Rogers have managed to get an interim injunction essentially against themselves. However, it looks like Teksavvy is involved here and may resist the sweep of this litigation. Why it is apparently the case that Bell and Rogers are unable to determine who is behind GoldTV is an interesting question. In the absence of the involvement of GoldTV, this case is effectively proceeding by default unless TekSavvy is able to resist the momentum of Rogers and Bell. Bell and Rogers, lest we ignore the obvious, are highly vertically integrated entities with substantial content owner interests that have historically shown little if any regard for their customers privacy in this kind of litigation.

Whether or not the above two initiatives are somehow related or merely coincidental remains to be seen, although the reference by Allarco to the FairPlay initiative may raise eyebrows.

There has also been litigation under way for some time against some small operators for selling Kodi boxes.

Not to mention the 19 or so mass litigation lawsuits against thousands of individual Does in the Federal Court launched by Voltage and related actions – and above all the so-called “reverse class action” against ~55,000 or so individuals who have no idea whatsoever that they are being sued and whose worst sin may be that of paying for internet service so that they can do their banking online and their children can do their homework.

What I will say now is to remind my blog readers of some extremely fundamental IP principles that are too easily forgotten in the Crusades against piracy, theft, stealing and all of the other alleged sins of many if not most consumers of electronic products and users of the Internet.

The first fundamental principle is that of the “staple item of commerce” doctrine. This was set forth in the landmark 1984 decision of the United States Supreme Court in Universal v. Sony. In that case, the Hollywood studios tried to make the VCR illegal. The US Supreme Court in a landmark opinion written by the recently deceased iconic Justice Stevens ruled that a device should not be declared illegal merely because it is possible to use it illegally. If it has a substantial noninfringing use, the courts should not intervene. An obvious down to earth example is that of a kitchen knife. It can be used to slice vegetables or carve a turkey. It can also be used as a murder weapon. Nobody would dream of bringing a court case to outlaw the sale of kitchen knives.

Another iconic principle is that providers of services and equipment are entitled to presume that such services and equipment will be used legally. This was the key aspect of the landmark CCH v. LSUC decision of the Supreme Court of Canada in 2004. It will be recalled that the law publishers were incensed that the Law Society of upper Canada provided a library full of books along with self-service photocopiers. Needless to say, that argument failed.

That case also emphasized in Canada that “Absent primary infringement, there can be no secondary infringement.” (CCH v. LSUC)

And even more recent principle as enunciated by the Supreme Court of Canada in Rogers v. Voltage and at the appellate level in the United States which is consistent with the foregoing is that those who merely pay for an Internet service account are not thereby liable for that reason alone for any infringing activities that may take place by those who use such accounts, who are typically children, visitors, babysitters or even customers of businesses that provide Wi-Fi. Could it be seriously argued that a hotel, library or coffee chain is liable for the bit torrent activity of one of its guests or patrons?

Above all, it must be remembered that that war on piracy seems inevitably to lead to a war on privacy in which there can be a lot of collateral damage. I was involved in one of the first landmark Canadian decision, namely BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII), < > which Judge Von Finckenstein, as he then was, and the Federal Court of Appeal established that:
“...[T]he public interest in favour of disclosure must outweigh the legitimate privacy concerns of the person sought to be identified if a disclosure order is made”.
See a balanced and still timely – indeed VERY timely - analysis of this case by Richard Naiberg and myself (we were opposing counsel) here.

Unfortunately, the general understanding of what constitutes both piracy and privacy is getting murkier rather than clearer as time goes by. This is the case even by some judges, though they can hardly be completely blamed in view of the often absent or inadequate presence of the “public interest” in these types of cases.  The appointment of “amicus curiae” may be appropriate in in some of these instances. Even Voltage has so suggested.

“Piracy” is not be encouraged and, in some cases, may require vigorous enforcement by courts to stamp it out. But the piracy drift net must not cause collateral damage to the innocent, who can suffer both serious financial and indeed emotional consequences.  Being sued in the Federal Court and being served with lengthy and complex legal documents merely for paying for internet service is not something any normal Canadian would reasonably expect. Many people are rightly terrified by Federal Court lawsuits and should not suffer any emotional or financial distress in the vast majority of cases in having to deal with them. There is an immense access to justice chasm here.
Above all, it must always be remembered that “piracy” is not an absolute concept. If anything, it is arguably rather like “obscenity” or “pornography”  – i.e. Justice Stewart’s famous statement in the US Supreme Court in  Jacobellis v Ohio 378 U.S. 184 (1964)
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. [highlight added]

Nobody should forget that only a few years ago, YouTube was sued by Viacom for a billion dollars. The lawsuit alleged that “that the site had engaged in "brazen" copyright infringement’… The rest is history.

HPK

Saturday, September 21, 2019

Duels, Dualities, and Destiny in Canadian Copyright – a Snapshot at Summer’s End 2019


"Deliverance" by John Boorman 1972
Here’s a summer’s end snapshot about the state of copyright in Canada in 2019 as we:
-        Digest two contrasting and competing parliamentary committee reports;
-        Await the ruling, which could come at any time now, of the Federal Court of Appeal (“FCA”) in the Access Copyright v. York University litigation;
-        Await the ruling of the Federal Court of Appeal in the “making available” case, heard on November 26, 2018 (this is an unusual delay on the part of the FCA):
-        Await the ruling of the Supreme Court of Canada in the Keatley survey case, which we shall learn on September 26, 2019. Regrettably, the main parties are not challenging the subsistence of copyright in land surveys, which is far from self-evident;
-        Await potentially important rulings in the Voltage Pictures et al mass litigation in Canada, including the unprecedented attempt to certify a “reverse class action” against ~55,000 alleged copyright infringers who have no inkling at this time that they are potentially about to be sued. The certification motion will be heard on September 23 and 24, 2019 in Toronto.  (see here for update);
-        Witness escalating attempts by Bell, Rogers and others at website blocking through the Federal Court in an apparent follow-up to their unsuccessful to date attempts in their “FairPlay” coalition campaign at the CRTC and through Parliament;
-        Watch a newly launched attack on four of Canada’s largest and most prestigious electronics retailers in the Federal Court. This extremely unusual litigation suggests some sympathy and perhaps even coordination or more with the FairPlay coalition. Stay tuned on this;
-        Await the response of the Federal Court to the failure of the parties to agree on a jointly proposed timetable leading up to the hearing of the Defendant's motion for summary judgment in the Blacklock’s litany of litigation;
-        Deal with the loss by retirement of two long standing and outstanding public servants at the Copyright Board from the posts of Vice Chair and Secretary General, and await the impact of two recent appointments in their place of senior people from the Department of Canadian Heritage who have presumably worked together for many years, both with significant policy and bureaucratic experience in copyright from that Department’s point of view. To the best of my knowledge, this is the first time in the Board’s history that neither holder of these two key positions will have had any legal credential; and,
-        Head into an election with a very uncertain outcome.

I won’t discuss all of these at this time, but I will touch on some in more detail below. Some I have dealt with before.

The INDU Committee Report

I have some very belated comments about the June 2019 INDU Committee s. 92 Report entitled Statutory Review Of The Copyright Act: Report Of The Standing Committee On Industry, Science And Technology.  Dan Ruimy was the Chair. My response has been belated partly because of distractions in other directions, partly because of summer, partly because nothing is going to happen anytime soon due to the Parliamentary recess and the imminent election, and partly because others have covered it well, and mostly because it speaks very brilliantly for itself. Michael Geist has, as usual, been quick, decisive, and accurate in his coverage and provides some interesting subjective as well as data analysis about how this report compares with the unfortunate “Values Gap” report, as I call the Shifting Paradigms document from the other Committee. Michael also has a good podcast with Carys Craig about this report.

In my nearly four decades of involvement with copyright law and policy, this INDU report is one of the best and most important single copyright document I have seen from or under the auspices of the Government of Canada. Of course, this is not a “White Paper” that carries with it the imprimatur of government policy. It is so far only a committee report. It does not have a pretentious title, such as that of Shifting Paradigms, the report issued a few weeks earlier by the CHPC (Canadian Heritage) Committee chaired by Julie Dabrusin that went far beyond its mandate and produced a report that could very well have been written by the usual lobbyist suspects.  I have called the CHPC document the “Values Gap” report – with no apology to Music Canada, the inaptly named lobby group that overwhelmingly represents the American recording industry and which has been noisily flogging the theme of “Value Gap” and continues to do so with still more inaccurate and even misleading information. See, for example, its recently released report entitled “Closing The Value Gap”.  Music Canada, BTW, unsurprisingly loved the Shifting Paradigms report. Not surprisingly, it essentially dissed the INDU report.

There was also a remarkable and unusually explicit press release from the INDU Committee  concerning the CHPC committee report that is unprecedented in my experience.  However, as I will show below, the seeds of this internecine discontent go back a long way and it is best that the current generation of policy makers be sufficiently aware of this history.

The INDU report is very detailed and reflects an astonishing amount of careful work by the Committee members and its staff. There are 390 footnotes and countless detailed and references to those who contributed time and expertise as witnesses and authors of briefs –  unlike the CHPC committee, which simply ignored the testimony it didn’t like and doesn’t even provide the courtesy of a reference to the actual submissions of those such as myself and many others who tried to help them but were treated so inappropriately by them. This is particularly unfortunate, since the CHPC committee heard from far fewer witnesses than did the INDU committee, as Michael Geist has shown.

INDU did its work in a very short time – the hearings concluded only last December. Such productivity with limited resources on so many complex copyright issues involving so many documents and witnesses makes an interesting contrast with Canada’s Copyright Board, which  often takes seven years or even more to render decisions on normally narrow factual and legal issues related to copyright. The current Access Copyright Post-Secondary Tariff case has been ongoing for more than nine years now – with no end in sight. The INDU Committee, on the other hand, regularly deals with an enormous spectrum of issues and has less resources and a much heavier workload than the Copyright Board. Of course, the Committee and the Board have different roles – the former is not a Court, and the latter is a “quasi-judicial” tribunal.

More Specific Comments on the INDU Report

The report, while excellent, is still not perfect. For example, here are some issues that I would have liked to see addressed but which were not:
-        There is a need to confront the mandatory tariff issue directly and not wait for the Courts, which may or may not get it right and where it will likely take many years to resolve, given the way the litigation has unfolded – e.g. York’s strategy at trial of not confronting the issue of whether “final approved” tariffs are mandatory. This strategy was criticized in detail by Prof. Katz in a widely read blog entitled Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss posted shortly after the trail judgment was released on July 13, 2017.  York’s position on appeal was somewhat, though not resoundingly, more forceful. The interventions were somewhat restrained. It remains to be seen whether York will prevail on the appeal, and if so on what basis. Some of the points that arguably should have been made still did not get made by York or any of the interveners in the Federal Court of Appeal because my client CARL’s application for leave to intervene was denied by a single Federal Court of Appeal judge, along with a motion for reconsideration. Much of the material for that effort is available here. One way or another, this case is likely headed to the Supreme Court of Canada assuming that leave to appeal would be granted – where hopefully all appropriate interventions will be heard, and all essential arguments will be adequately made. However, a ruling from the Supremes could take another 1.5 to two years and may not even then be conclusive, depending on a number of factors – most notable of which is whether the issue of whether “final approved tariffs” are mandatory will be fully and adequately confronted and addressed. If this is not resolved correctly by the Courts, Parliament will need to intervene – and argue should do so in any event sooner rather than later in order to prevent potential chaos in the educational community. With all respect, one cannot count on the Courts to get this one right at the end of the day, especially given the record to date.
-        There is a need to explicitly provide that contractual provisions that purport to limit users’ rights, such as fair dealing, are not enforceable. For example, the UK copyright law now includes the provision “To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable” in order to ensure that contracts cannot override fair dealing rights.
-        There is a need to deal with the avalanche of mass litigation – in which up to 55,000 people are being sued at once for a court filing fee of $50 in total for alleged copyright infringement. That’s less than a tenth of cent EACH for each potential defendant in the so-called “reverse class action”. The other 19 or so mass actions are somewhat more modest, typically suing several hundred rather than several thousand “Doe” defendants. Although these proceedings are being conducted by a large and reputable Bay Street law firm and in a competent, courteous, and professional manner in contrast to what we have seen in extremis in the USA, there are very serious access to justice issues for those who are being dragged in. Access to justice for individuals is all but illusory. Settlements of hundreds of dollars and even more are being collected from people who are guilty only of merely paying for Internet service, something the Supreme Court of Canada said should not be happening.
The Historical Context of Internecine Debate is Important

As I’m fond of repeating in this context, those who don’t know history are condemned to repeat it.  There is a long history leading up to the fact that we have two parliamentary committee reports that are, to put it euphemistically, in sharp contrast to each other. I will save the details of this history to a later time and perhaps another forum. Suffice it to say that it traces back to the late 1970s and mid-1980s when the predecessor departments to what are now ISED and Canadian Heritage were to some significant extent at loggerheads and at times in conflict with each other over copyright. This division was reflected in contrasting publications and in the dynamics behind the major 1988 and 1997 revisions. This dialectic, debate, dueling publications and dual responsibility has long since been hardwired into the system and still survives, at least structurally. This is not necessarily a bad thing and the result has been a copyright statute that is stronger, better and more balanced in many ways than that of any other country and certainly superior to that of the USA from whence virtually all of the lobbying pressure is coming. That is not to say that it cannot and must not be improved. Hopefully that will happen sooner rather than later. If we get a chance to redo the CUSMA deal, which may be possible given the current chaos in the American political climate, we should definitely undo the unfortunate concession of a twenty-year term extension.

Overall, the INDU report is a good step in the right direction and, hopefully, the next government will pick up this thread.

So, this is context in which the duelling reports have been launched. In many ways, it is déjà vu all over again.

Copyright Board

There has been a recent promise of regulations that will supposedly address the “delay” issue at the Copyright Board. As I have written elsewhere, I doubt that the proposed regulations will be helpful to any significant extent. In any event, these regulations are clearly on hold pending the election and resumption of normal government business.

This year is the 30th anniversary of the Copyright Board as we now know it and the 83rd anniversary of its predecessor, the Copyright Appeal Board. I shall shortly be writing about some reflections on the Board’s achievements both positive and problematic over these three decades and in the context of its predecessor the Copyright Appeal Board that came into existence in 1936 following the monumental Parker Commission. Sadly, there is little basis at this time for optimism in the short or medium term about the problems with the Copyright Board. Meanwhile, the proposed Access Copyright Post Secondary Tariff has been languishing for more than 9 years with no end in sight, despite the withdrawal of the main parties long ago.  The Board’s earlier ill-considered but inexplicably unchallenged interim tariff ruling gave rise to the Access Copyright v. York University litigation. The Board seemed poised to finally rule on this proposed tariff earlier this year, but has apparently retreated – possibly as a result of its unusual request for comments from “affected persons”, as a result of which it then got an earful and then astonishingly, unceremoniously and without even notifying the “affected persons” announced that their submissions would be ignored, and possibly because of indecision in the face of the pending decision of the Federal Court of Appeal in the York case. This file could very well prove to be the Board’s Waterloo.


Conclusion:

As always in copyright law, but more so than usual, we live in interesting time.

HPK


Thursday, September 19, 2019

Voltage v. Salna & ~55,000 – the “Reverse Class Action”


The long delayed certification motion for the reverse class is scheduled for Monday, September 23rd   and 24th , 2019. The key documents for this motion have only very recently been filed – and more may yet appear.

Here are:
All I will say at this time is that there is no precedent in the Federal Court for a “reverse class action” of this nature. It involves allegations of copyright infringement against ~55,000 or so defendants – presumably all but three of whom are unaware at this time of this proceeding.

This is worth attending for those in Toronto. It will presumably start at 9:30 AM on Monday, September 23, 2019 at the Federal Court at 180 Queen St. W. – just west of University Ave.

Media, professors, law students and lawyers whose schedule permits should attend.

And report, blog and tweet as appropriate.

HPK

Update: September 23, 2019.
Here is the Applicant's Reply Memorandum

Tuesday, September 03, 2019

Update on Canadian Copyright Mass Litigation – September Snapshot


This photo of Ottawa is courtesy of TripAdvisor

As I reported earlier, regarding the Rogers v. Salna “reverse class action” case against 55,000 or so unnamed defendants and the issue of reasonable reimbursement to Rogers for providing the names and street addresses of these potential defendants if the case gets that far, Voltage filed a Notice of Appeal on August 16, 2019.  As predicted, Rogers has filed a Notice of Cross-Appeal dated August 28, 2019.

It will be interesting to see whether and how the outcome of this appeal and cross-appeal from a trial level decision that in turn resulted from a remand from the Supreme Court of Canada and which could go on for still some time, will affect the proposed reverse class action that began in 2016. The long delayed certification motion for the reverse class is scheduled for September 23rd   and 24th , 2019. The key documents for this motion have apparently not yet been filed.

There’s also an important contested proceeding underway for a Norwich Disclosure order that is being contested by Eastlink and Xplornet that will the subject of a case management conference on September 19, 2019.

It will be interesting to see how vigorously the ISPs fight to protect the privacy of their subscribers. Presumably,  none of them yet have any idea that they have been named as a “Doe #” and could be on the hook for up to $5,000 and will have to self-defend (perhaps with help from Pro Bono Ontario), find a lawyer who is able and willing to help them on a cost effective basis, or take the risk of ignoring the proceedings and being vulnerable to default judgment.


All of this, not to mention the ongoing 18 so other cases against thousands of “Doe” defendants regarding various Voltage, etc. matters.

There are important issues that cut across all these proceedings and which could have a potentially profound effect on the public interest. The apparent lack of sufficient attention to the public interest to date should be of serious concern to policy makers, who have yet to implement regulations about reimbursement, and to the Courts, which have never faced this kind of mass litigation on this scale and with this sophistication before in Canada. I was very much involved in this first of these cases, the BMG case, back in 2004-2005. The rigorous test for disclosure set forth by the Federal Court of Appeal in that case at the behest of Shaw, Telus & CIPPIC (which I then represented) has not been followed or even invoked in all cases since then, although Teksavvy now seems to be pursuing it in in earnest in the case noted above.

Copyright owners are entitled to protect their rights and the recent fronts of litigation referred to above have been conducted in Canada with commendable Canadian courtesy. This has happened without the extreme and even criminal excesses we have seen in some American “troll” litigation. Some Canadian ISPs are standing up to be counted; however, they have their own commercial interests to consider which are not necessarily going to result in the protection of the interests of their customers.  Overall, there is a serious systemic access to justice problem here that somehow needs to be addressed.

As I’ve said before, it’s useful to recall the clear words Justice Brown of the Supreme Court of Canada in reimbursement decision, Rogers Communications Inc. v. Voltage Pictures, LLC, [2018] 2 SCR 643, 2018 SCC 38.  Here are perhaps the two most consequential paragraphs in the judgment – which arguably put a potentially severe chill on all the legal basis of the outstanding mass BitTorrent cases:
[35] I acknowledge that there will likely be instances in which the person who receives notice of a claimed copyright infringement will not in fact have illegally shared copyrighted content online. This might occur, for example, where one IP address, while registered to the person who receives notice of an infringement, is available for the use of a number of individuals at any given time. Even in such instances, however, accuracy is crucial. Where, for example, a parent or an employer receives notice, he or she may know or be able to determine who was using the IP address at the time of the alleged infringement and could take steps to discourage or halt continued copyright infringement. Similarly, while institutions or businesses offering Internet access to the public may not know precisely who used their IP addresses to illegally share copyrighted works online, they may be able, upon receiving notice, to take steps to secure its internet account with its ISP against online copyright infringement in the future.
 [41] It must be borne in mind that being associated with an IP address that is the subject of a notice under s. 41.26(1)(a) is not conclusive of guilt.  As I have explained, the person to whom an IP address belonged at the time of an alleged infringement may not be the same person who has shared copyrighted content online. It is also possible that an error on the part of a copyright owner would result in the incorrect identification of an IP address as having been the source of online copyright infringement. Requiring an ISP to identify by name and physical address the person to whom the pertinent IP address belonged would, therefore, not only alter the balance which Parliament struck in legislating the notice and notice regime, but do so to the detriment of the privacy interests of persons, including innocent persons, receiving notice.
(highlight and emphasis added)

Even if these comments from the SCC go beyond the narrow “ratio decidendi” (what is actually decided and what is generally rooted in the facts) to the those that are “obiter dicta”, the latter type of comments can still be authoritative if they are closely related to “ratio decidendi”.  Those who are curious about the role of SCC “obiter dicta” may want to read the SCC’s own important 2005 decision regarding this issue. See  R. v. Henry, [2005] 3 SCR 609, 2005 SCC 76. In this instance, these comments were arguably closely related to the “ratio” and should now be regarded as binding authority.

This SCC ruling may mean that a very large number of those who have been or may become caught up in Canadian copyright mass litigation and who cannot be shown on the basis of reliable, sufficient  and admissible evidence to have done anything more than to pay for internet service are not only not liable for copyright infringement but arguably should never be drawn into the process in the first place.

HPK