Blacklock’s Unappealing Appeal (To Be Heard on October 7, 2025) + An AI Prediction

 

The Blacklock’s case (A-267-24) is coming before the Federal Court of Appeal on Tuesday, October 7^th, 2025, at 9:30 AM. One can observe it virtually by registering here: https://www.fca-caf.ca/en/pages/hearings/upcoming-hearings. Or one can also attend in person at 90 Sparks St. 10^th floor in Ottawa. Allow time to go through security.

I’ve mentioned Blacklock’s in my blog many times over nearly a full decade. I’ve  recounted its very long litany of losing litigation in the Federal Court going back to 2015. See: Copyright Trolling in Canada: Is Blacklock’s a Copyright Troll & "Frequent Flyer" Litigator? https://excesscopyright.blogspot.com/2015/10/copyright-trolling-in-canada-is.html

Here are the factums for the hearing next week and my very brief comments, which I’ve posted before in Blacklock’s Aspirational Appeal Advancing: https://excesscopyright.blogspot.com/2025/02/blacklocks-aspirational-appeal-advancing.html

I suggested then that:

IMHO:

·        What the Government did was clearly fair dealing and did not infringe copyright.

·        CIPPC is right that “entering a valid and licitly obtained password to access password-protected content does not “circumvent” a TPM”.

·        CIPPIC is right that TPMs do not trump fair dealing as a matter of law.

I would add now a couple of comments I made at the Legacy of CCH conference held in Toronto on September 19-20, 2025 to the effect that:

·       No animals and no TPMs were harmed by the Government’s activity. No password was circumvented. The trial judgment, per Justice Roy,  declared that “ the licit acquisition and use of a password, if it is otherwise a technological protection measure, does not constitute the circumvention of the technological protection measures of the Copyright Act.” See:
1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>. Justice Roy is a very careful judge, as I well know only too well having lost an important decision on an unrelated matter before him, which I unsuccessfully appealed. BTW, the FCA doesn’t overrule findings of fact or mixed fact and law unless those findings entail “palpable and overriding error”. See: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235, <https://canlii.ca/t/51tl>

·       As the Supreme Court of Canada declared in the landmark ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339, <https://canlii.ca/t/1glp0>:

48  Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement.  Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright.  The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.  As Professor Vaver, supra, has explained, at p. 171:  “User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

(highlight and emphasis added)

The jurisprudence and the factual record suggest that Blacklock’s will lose the appeal. But don’t take my word for it. Here’s what the free version of CHAT GPT predicted when I asked it on September 9, 2025 about the likely outcome of the appeal. BTW, this is a remarkably good analysis that only took about two seconds and, interestingly, it twice cites to my blog – so it must be right 😉.

Spoiler Alert: CHAT GPT predicts that the outcome will be:

1. Appeal dismissed.
2. Federal Court decision affirmed in all respects.

We will watch to determine if CHAT GPT was just as smart or maybe even smarter than this non-practising lawyer/policy provocateur who is NOT giving legal advice here.

HPK