Friday, October 30, 2015

Copyright Trolling in Canada: Is Blacklock’s a Copyright Troll & "Frequent Flyer" Litigator?

(Wikemedia)

The decision deals with the issues of whether a person without an account to a pay-walled website who receives a “teaser” by email from the website publisher about an article of potential concern to that person or his/her organization and who requests a copy of the work in question from that website from a third party who does have an account is infringing copyright, circumventing a Technical Protection Measure (“TPM”) and can invoke a fair dealing defence in these circumstances. There was also a claim for inducing breach of contract and punitive damages.  The Court came down heavily on the defendants on all issues. The Court found that the defendants were liable for the cost of an institutional subscription in the amount of$11,470 plus punitive damages of $2,000 plus costs.

A few points must be made at the outset:
-          Decisions of the Ontario Small Claims Court, even if correctly decided, have minimal, if any,  precedential status  – other than perhaps in a limited sense of “comity” or “collegiality” amongst other small claims court judges in Ontario. Under the doctrine of “stare decisis”, courts are bound to follow decisions of higher courts to which their decision could be appealed. So, the Federal Court, the Copyright Board and even the Ontario Superior Court are clearly not bound by a decision of an Ontario Small Claims Court.
-          In any event, and with all due respect to the clearly well-intentioned and lengthy reasons of the Deputy Judge (who is not an actual “Judge” but a lawyer who serves part-time as Deputy Judge in the Small Claims Court) who wrote the decision, there are many reasons to doubt that this particular decision was correctly decided in all or even any material respects. It’s arguably an unwarranted and unprecedented stretch of the law to conflate either asking someone for a copy or providing someone with a copy with illegal “circumvention” of a TPM just because the work is behind a paywall.  It’s not even clear that the Blacklock’s paywall constituted a TPM, as defined in the Copyright Act or that there was any circumvention, as defined, in this instance or that any of the activity alleged was prohibited by the legislation. Above all, as Prof. Scassa states succinctly here, “Receiving and reading a copy of an article sent by another person is not per se copyright infringement.” Her conclusion is that This decision is so entirely lacking in the balance mandated by the Supreme Court of Canada that one can only hope it is nothing more than a strange outlier.”  There are other problems with the decision as well, but I won’t get into them here and now. There’s no need for the moment because it’s a Small Claims Court decision and is of virtually no precedential consequence.
-          In any event, the Supreme Court of Canada made it very clear in the 2004 CCH v. LSUC decision that:
o   As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available.” (para 49)
o   “The availability of a licence is not relevant to deciding whether a dealing has been fair.” (para 70)
-          Much else could be said about the problems with the decision, but now is not the time or place. Anyway, once again with all respect, it’s just a Small Claims Court decision.

There have been a number of instances in which small claims court judges have written long decisions in Canadian copyright cases. This is interesting, but ironic – because these decisions don’t really count, for better or for worse. However, this is understandable because these cases are probably much more interesting to these judges than the usual types of cases that are handled in their courts. And given the relative paucity of copyright jurisprudence in Canada, they are clearly trying to be helpful.

An interesting question is why this particular case wasn’t brought in the Federal Court – either as an application or a simplified action. Given the amount of money at stake, it could have been brought in either court. Moreover, the Federal Court has procedures for dealing with applications and “simplified actions” that can be fast and economical, while still allowing for adequate document production, cross-examination or discovery as appropriate in advance of a hearing.

Indeed, Blacklock’s has brought several other cases in the Federal Court. Here are 10 cases filed since mid-2014, mostly against the Federal Government or its agencies and a couple of NGOs:



Court Number
Style of Cause
Nature of Proceeding
'RE'
1395804 ONTARIO LTD. (Blacklock's Reporter) v. ATTORNEY GENERAL OF CANADA
Others - Crown (v. Queen) [Actions]
1395804 ONTARIO LTD., operation as Blacklock's Reporter v. AGC
Others - Crown (v. Queen) [Actions]
1395804 Ontario LTD. v. Canadian Transportation Agency
Copyright Infringement [Actions]
1395804 Ontario Ltd, operating as Blacklock's Reporter v. Bank of Canada
Copyright Infringement [Actions]
1395804 ONTARIO LTD. ET AL v. CANADIAN FOOD INSPECTION AGENCY
Copyright Infringement [Actions]
1395804 ONTARIO LTD. ET AL v. ATTORNEY GENERAL OF CANADA
Admiralty - Damage (Property & Facilities)
1395804 ONTARIO LTD v. CANADA (AG)
Copyright Infringement [Actions]
1395804 ONTARIO LTD. v. SIERRA CLUB CANADA FOUNDATION ET AL
Copyright Infringement [Actions]
1395804 ONTARIO LTD. v. FRIENDS OF CANADIAN BROADCASTING
Copyright Infringement [Actions]
139504 ONTARIO LTD., OPERATING AS BLACKLOCK'S REPORTER v. AGC
Copyright Infringement [Actions]


Some of these have been discontinued, which may – though does not necessarily - mean that there was a settlement. However, the cases against the Government are being apparently vigorously defended – and some interesting defences are emerging.

It appears, on the basis of the Government of Canada's amended pleading (see below), that it is going to fight these cases on the basis, inter alia, that Blacklock’s is allegedly a “copyright troll”, uses “teaser emails that are designed to interest the department in reading and distributing the Plaintiff’s articles”, engages in “speculative invoicing” and is engaged in copyright “misuse”.  The Government of Canada has just won a clear and convincing procedural victory on a motion to amend its statement of defence to plead along these lines – along with a costs order of $4,000 against Blacklock’s on a procedural motion and a comment from the Court that:
The motion was contested, it was contested extensively and it took a lot of time. There was a need for cross-examination. In the course of the argument, I made comments to the effect that the Plaintiff’s argument and choice of the way in which it chose to understand questions or construed questions was obtuse to the point of being obstructive.

This is harsh language and a very significant costs order as far as these things go. Here’s the Court’s Order dated October 26, 2015.

Here is the Statement of Claim and Amended Statement of Defence in T-1391-14This seems to emerging as the lead case.

Blacklock’s appears to have become one of the most "frequent flyers", as it were, in Canadian copyright litigation in the short time of just over one year. I cannot recall any single party bringing ten lawsuits in the Federal Court in just over one year.

For those who are unfamiliar, Blacklock’s is a relatively new online high priced media service ($157 for a personal subscription and $11, 470 for an institutional one) that, according to itself, “…covers news you won’t find anywhere else: bills and regulations; reports and committees; Federal Court and public accounts. We’re the only reporter-owned and operated newsroom in Ottawa that finds the facts needed by business, labour and associations.”

I have been interviewed by Blacklock’s on at least one occasion. I must say that I will now become rather reluctant to be interviewed again by Blacklock’s again, if the allegations in the Federal Government’s amended statement of defence are true.

The business model of a subscription based media service with a narrow and relatively small audience with a timely need to know is a tricky one. It has been practiced to a high level of apparent success and respect by the family owned Hill Times organization in Ottawa, since 1989, for a mostly Ottawa-centric  audience of “Cabinet ministers, MPs, Senators, political staffers, lobbyists, 'backroomers,' political junkies, and some of the top decision-makers in the country, including influential players in Parliament, Cabinet, the Prime Minister's Office, the Privy Council, the Finance Department, Treasury Board, the Department of National Defence, the Justice Department, and more.”

The Hill Times organization seems to know how to successfully balance paper and online publication and free and pay-walled material.  I’m not aware of the Hill Times ever having sued anyone for copyright infringement.  I’m always happy to be interviewed by and occasionally write for the Hill Times and its various specialized offshoots such as the Wire Report or Embassy News.  Nor have I ever heard of large media organizations such as The Economist or the New York Times ever suing anyone for sharing the occasional article that is behind a paywall.

Speaking generally and not about this or any other particular case, suing one’s customers – or potential customers – is rarely a good business model, whether it be for deterrence or, worse still, as a source of revenue or a business model. Ask the RIAA how their campaign against a 12 year old child, a 71 year old grandfather and a dead grandmother worked out. Likewise, and again speaking generally and not about this or any other particular case, there have been recent examples in the USA and UK where some “troll” litigation has backfired badly.

Needless to say, if any of these Blacklock’s Federal Court cases result in a judgment, this would be something worthy of notice because it would potentially have significant precedential value.

If CVA appeals the Small Claims Court decision, things could get very interesting. The appeal would go the Ontario Divisional Court, which, as copyright lawyers should know, delivered an excellent pro-fair dealing ruling in 1997 in the Allen v. Toronto Star case involving the reproduction on the front page of a Toronto Star edition with a major article about Sheila Copps of a whole magazine cover from Saturday Night Magazine featuring a picture of Sheila Copps. It’s not clear that it would be cost beneficial for CVA to appeal the current decision, even if they win. But if it does, it’s reasonable to expect some interest on the part of potential interveners – on both sides of the fence. A decision of the Ontario Divisional Court is one that could indeed have some precedential value.

In any event, interested eyes are – or should be - on the Federal Court cases. If anyone becomes aware of any other Blacklock’s litigation or threatening letters, please feel free to let me know and pass along details, anonymously if you so wish.

Anyway, speaking of alleged copyright trolls, the hearing of Teksavvy’s quest in the Voltage case to appeal the  decision by Prothonotary Roza Aronovitch of the Federal Court regarding TekSavvy’s claim to entitlement to $346,480.68 in which Teksavvy was awarded only $21,557.50 – about 6% of what it asked for overall coming up on November 9, 2015. Although CIPPIC is no longer active in this matter, it would be helpful if CIPPIC would update its website regarding this case soon and post the most pertinent of the obviously voluminous material filed in the Court so that folks who may wish to follow or attend the hearing on November 9, 2015 can be better informed.

More to follow without doubt on both Blacklock’s and Teksavvy soon.

HPK

Friday, October 23, 2015

My Unsolicited Advice to Prime Minister-designate Justin Trudeau & his Team on TPP, Copyright, CBC, Cabinet & Committees



I am not partisan. I was a public servant for about a dozen years. I was in the public service during the end of the Pierre Trudeau era, the Brian Mulroney era and early Jean Chr├ętien period. I’ve observed much since then and appeared several times at Parliamentary and Senate Committee hearings. I’ve fought and won some victories in some important cases up to and including at the Supreme Court of Canada.  There are many IP, trade and cultural issues that I care a lot about and which are or should be non-partisan. So, I hereby offer my free, unsolicited and non-partisan advice on some of them – for what it’s worth – to Canada’s new Prime Minister-designate and Government: 

-    Re the TPP, there should be very open and adequate committee hearings as soon as possible to support a fully informed debate in Parliament. Many committees will need to look at this. The proposed agreement - which is sadly still secret – apparently has huge implications for the auto, agriculture, pharma, health, high tech, academic and innovation based sectors – for starters. It may have enormous implications for the rule of law and national sovereignty if it allows foreign corporate “investors” to effectively limit or even undo Canada’s right to regulate in many areas. It may even allow them to effectively overturn the outcome of decisions of our highest courts including the Supreme Court of Canada, which are among the finest courts and most respected courts anywhere in the world. The TPP needs all the scrutiny and all the time we can give it. It’s not likely going anywhere fast, based upon what we have heard from Hillary Clinton and President Obama’s situation in the USA.  There could very well be an opportunity to reopen it and to more strongly assert Canada’s best interests, if necessary. The complete shroud on public transparency in the negotiations - which was not the case with the historic WTO Uruguay agreement in 1994 or many other treaties, such as those from WIPO - has understandably created suspicion and scepticism.
-    Regarding intellectual property and free trade, don’t assume that higher levels of IP make for freer trade. The evidence suggests otherwise, unless one is dealing with rogue or pirate nations that have not even ratified or which flout the basic WIPO and WTO-TRIPs treaties.  There are few if any such places left and none of our significant trading partners could be remotely so described.  Don’t take my word for this. Read what Nobel Prize winner Joseph Stiglitz recently had to say about the “Trans-Pacific Free Trade Charade”.
-    Don’t assume that more or longer copyright protection is necessarily good for Canada. Remember the controversial report from Sarmite (“Sam”) Bulte and her committee.  It’s important to have knowledgeable committee chairs who have an open mind. Also, remember how Jim Prentice learned that more is not necessarily better when it comes to copyright and that bad bills can quickly evoke significant protest. He was one of the first to learn about what social networking to do to bad policies and bad legislation.
-    Get Canada back into business in a visible and meaningful manner at the World Intellectual Property Organization (“WIPO”), the WTO and other international multilateral fora. It is unfortunate that we have become largely silenced in this respect over the last decade and even more. We have much to contribute through our capable public service delegates and it can only help Canadians if we do so. Canada can also much to help other countries and should consider resuming its role as “honest broker” in international fora.
-    Don’t pander to the Mickey Mouse “Forever-Less-A-Day” movement, lavish music and film industry galas, receptions and the other glamorous and seductive lobbying initiatives that will be surely present themselves. Much of what you will be asked to do by these folks will be bad for Canada. And even bad politically. Remember Sam Bulte and her infamous “fundraiser” with Hollywood, the music industry and other strongly pro-copyright interests. That event was widely regarded as being instrumental in her electoral defeat and the apparent demise of her political career.  Or ask Sheila Copps about the most lobbied issue ever in Canadian federal policy making. Or ask her about her ill-fated and ill-advised back-door attempt to extend the copyright term for unpublished works by Lucy Maud Montgomery and others who died before 1949. (I’m proud to have played a significant role in the demise of the relevant provisions of the bill that would have made this happen).  Or ask outgoing Prime Minister Stephen Harper why he suddenly and without any public consultation or subsequent debate provided a windfall copyright term extension for sound recordings of an additional 20 years in an omnibus budget bill and wrote a letter to the American recording industry’s “Canadian” lobbying association on the very day that the controversial provision was tabled, just a few months before he lost in this week’s historical election. Bob Tarantino has a good take on how this term extension will work. Think about repealing it.
-    Fix the problems at the Copyright Board, which takes too long to render decisions that are too retroactive, too costly and sometimes just simply wrong. This will almost certainly require regulations. The fault, if there is any fault to be found, may lie more with the parties and their lawyers than the Board. But the Board has, despite its competence, dedication and good intentions, proven unable or unwilling to deal with these problems and to confront the perennial parties and the small cadre of counsel who have done well under the status quo and who don’t want to see any meaningful change. Regulations are the answer. Virtually all other comparable Canadian tribunals and courts operate under clearly enacted rules that set out timelines, procedures, etc.  Establishing such rules through regulations is relatively easy – because regulations don’t require legislation. They just require hard analysis and serious consultation. We do not need further statistical study, especially when the Board only renders two or three significant substantive decisions a year. I’ve written about this a lot.
-    Fix the CBC. Start with a new Board of Directors chosen for their knowledge and ability and not on the basis of partisan considerations. Get a new President ASAP who is committed to running the CBC according to its historical and legislated mandate and bringing in more capable senior management.  Running the CBC does not mean running it into the ground. Listen to voices who can provide non-partisan wisdom, such as Tony Manera – a highly principled and highly respected former president. The CBC is an indispensable part of Canada. Bring it back to life and let it flourish. It was once a national treasure admired around the world. This can happen again.
-    Use your elected talent pool wisely. You have knowledgeable and experienced people who could contribute in cabinet on issues such as the above. Chystia Freeland comes to mind on international trade. David Lametti is certainly the first and foremost intellectual property law expert elected as an MP in Canada in modern times and probably since Confederation. He has been a distinguished full professor of law at McGill and could make a great contribution in several places, such as Justice, Industry or Heritage. (I should disclose that I represented his McGill institute and worked with him and Prof. Ariel Katz of U of T in a recent Supreme Court copyright case, for which the copyright community is eagerly awaiting the result).
-    Use your bureaucrats wisely. Many of them are very capable. The system should encourage expertise and experience in IP on the part of senior levels in the bureaucracy, which has rarely been the case in Canada – in notable contrast to the USA.

The previous government did do some good work on copyright. The 2012 legislation was reasonably well balanced. The decision to get rid of the proposed “new tax on iPods and MP3 players”, an idea that then Industry Minister James Moore called "really toxic and, frankly, really dumb” through regulation was a clear, decisive and an important step (I admit to involvement on this file). Resist the likely attempt to reverse this positive step. However, the sudden windfall copyright term extension for sound recordings in the recent omnibus budget bill was unfortunate. The leaked IP chapter of the TPP seems to indicate that Canada “caved” on key issues, as Michael Geist explains. But, as noted above, hopefully that damage, if is confirmed, can still be repaired.

IP should not be a partisan issue. IP costs are overwhelmingly paid for by the “middle class” who buy gadgets, pay cable bills, go to the movies, pay for their kids expensive tuition, pay taxes for education, use prescription drugs, consume brand name food and beverages, wear brand name fashion and pay out in countless other ways. Good IP policy is essential to an innovative, independent and competitive Canadian economy. IP is everywhere and that’s why the lobbying is so intense on these files.

Free trade. copyright and the CBC should not be partisan issues. These are issues that should be dealt with on the basis of evidence, analysis and what’s best for Canada.

Mr. Prime Minister-designate, I wish you all the best in your dealing with these and the many other complex issues before you. You have a great elected team and a great public service to help the Government you will lead to undertake these challenges.

HPK


Saturday, October 03, 2015

To Canada's Copyright Board, Bar and Other Stakeholders: "When you come to fork in the road, take it!"

From Canada's "Official Doodler" of Copyright Conferences - @GiuliaForsythe 

The #CopyCon2015 conference on October 2, 2015 at U of T was very interesting - particularly the contributions of former SCC Justice Ian Binnie who warned about double dipping and pushing too hard to appropriate parts of the commons, and Prof. Ariel Katz who provided an extended metaphor about copyright and coming of age and why stakeholders need not any longer act like or be treated as children.

This will all be archived, I am told, for those not fortunate enough to have been there.

Update - the webcast archive is here. My presentation is at the 5 hour 25 minute mark.

Here's my modest contribution about the Copyright Board, which kicked off a panel that I helped to organize that included Justice Roger Hughes, Gilles Daigle, Stephen Spong and which was moderated by Ann Ludbrook.

Thanks to all....including Bobby Glushko, Graeme Slaght and Canada's premiere one and only brilliant copyright "Official Doodler", @GiuliaForsythe.

Hopefully, U of T will do this again next year.The library and academic communities really need empowerment, which can only come from full and frankly provided information.

HPK