Blacklock’s Day of Reckoning?

 

(Blacklocks.ca)

For over nine years, Blacklock’s has pursued a remarkably determined litigation strategy that has involved nearly two dozen Federal Court lawsuits, including 13 against the Federal Government and its agencies. Its efforts against the Federal Government have been notably unsuccessful and none of its efforts against other parties have resulted in any successful legal precedents from Blacklock’s standpoint. On June 7-9, 2023, the Federal Court heard a summary judgment motion brought by the Government with a public interest intervention by CIPPIC that could bring this litany of litigation to the end.  The motion was heard by Justice Yvan Roy, a very thorough and experienced judge. and his decision is pending.

I’ve written about Blacklock’s litigation many times before. See here. I don’t normally comment on cases where judgment is pending – but this is an exception that calls out for comment because of its public interest importance and its unique long history.

The Attorney General of Canada (“AGC”) was represented by its counsel, Alexander Gay. Blacklock’s was represented by Scott Miller of MBM.  The intervener on behalf of the public interest was CIPPIC, represented by James Plotkin of Gowlings. These are all very experienced counsel.

Here are some brief point form observations based on the written material in the case. I did not actually attend the hearing, which was held “live” and was not virtual or hybrid, so it was not available via Zoom:

• A very important case – as shown by the unusually great role of intervener CIPPIC in terms of length of memo (20 pages) and time – and hour and then extended. Indeed, having resisted CIPPIC’s involvement, Blacklock’s ultimately engaged – with an 18-page response of CIPPIC’s important public interest submissions
• No hacking or decrypting involved here
• No evidence of any attempt to “descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure” (highlight added)
• The law does NOT clearly cover simple sharing of a simple password in the definition of “circumvent” found in s. 41
• No mention in legislation of the word or concept of “to share”
• Just sharing of simple lawfully acquired password by a government worker so she could do her research job and collaborate with colleagues
• No evidence of actual copyright infringement or other listed examples of circumvention
• No expert evidence that the TPM was “effective”
• Like sharing a hotel pass key with family members - or alarm system password with renovation contractors or cleaning staff, who then shares it with their employees or subcontractors?
• Even if there somehow was “circumvention” in this case, is it trumped by any absence of evidence of infringing reproduction or, very importantly, trumped by “fair dealing”?
• No piracy – this is not about getting free movies or music – it’s about government engaging in perfectly legal fair dealing…

In any case, there is an important previous ruling in 2016 that Government’s use of Blacklock material was clearly “fair dealing. There was a strong finding of fair dealing on the part of Government that public servants were just doing their research as allowed by the Copyright Act….

1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>

[33]      I am satisfied that the Department’s acknowledged use of the two Blacklock’s articles constituted fair dealing. There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair.

Blacklock’s could have, should have, but didn’t plead circumvention at the time and are now trying with a new counsel to do so in numerous lawsuits against 13 other Federal Government departments and agencies and presumably many others.

BTW, here is the applicable definition of “circumvent”:

circumvent means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner…(highlight added)

There is great interest in this case and the outcome is eagerly awaited.

HPK

Simple Solutions Simply Don’t Suffice to Solve the Slew of Song Infringement Substantial Similarity Suits

(Rogers & Hammerstein - "Do-Re-Mi")

Damien Riehl and Noah Rubin have released this interesting TEDx talk https://youtu.be/sJtm0MoOgiU entitled “Copyrighting all the melodies to avoid accidental infringement”. It has gotten lots of attention.

Their well-meaning but unconvincing concept is to algorithmically generate every possible melody contained within an octave with no chromatic notes and create a huge database and dedicate it to the public domain.

At the risk of oversimplifying their research and conclusion, this concept frankly seems even more simplistic than the apparently nonsensical "expert" opinions behind some bad court decisions. There are 12 - NOT just 8 - notes in a scale and often more than one octave + rhythm and harmony involved - not to mention the "independent creation" doctrine. They say they are working on including all 12 notes in the scale.

Obviously, songwriters are not likely to succeed in defending an infringement lawsuit simply because a tune may turn out to be found in their limited data base that is substantially similar to the plaintiff’s tune and the allegedly infringing tune. Copyright law doesn’t work that way.

Here are some well known examples that fall outside the simplistic Riehl/Rubin TEDx talk concept:

• Bernstein - Maria: https://youtu.be/DyofWTw0bqY (incredible use of "augmented fourth"  or tritone - "the devil in music")
• Beatles "Something" - https://youtu.be/MZ3Vh8jZFdE  Some surprising "modulation"
• Rogers & Hammerstein "Do-re-mi" - that most diatonic of all tunes throws in a B Flat at the end if you play it in C major. https://youtu.be/drnBMAEA3AM

Indeed, many great tunes contain "accidentals" and may modulate quickly and span octaves.

Sorry for the OK Boomer examples that date back even earlier than my Juilliard School days - but today's so-called tunes are - to the extent that they even include so-called melody - so simple minded that it's no wonder that so many seem the same.

Once upon a time, music really did consist of melody, harmony and rhythm.  It has often been said that Mozart's genius was to start with something apparently very simple and diatonic and to then throw in some chromatic complexity and turn it into extreme genius...

A great example is Mozart - Piano Concerto kv467 no21 (Alfred Brendel) - 2nd movement https://youtu.be/45drOlTTTA8 (aka the "Elivra Madigan" concerto)

This not only contains some delicious chromaticism but also goes beyond the octave range.

Sometimes some things are just not so simple.

HPK

PS - an internationally respected and tenured musicologist friend of mine has pointed out there is more than just the B flat chromaticism in "Do-re-mi":

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

(Wikemedia)

A recent decision from the Ottawa Small Claims Court in 1395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association (“CVA”), 2015 CanLII 65885 (ON SCSM) is raising some notable eyebrows, for example with  Canadian law professor Teresa Scassa here and the redoubtable @glynmoody on the internationally widely read Techdirt website.

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'
T-1234-15	1395804 ONTARIO LTD. (Blacklock's Reporter) v. ATTORNEY GENERAL OF CANADA	Others - Crown (v. Queen) [Actions]	RE
T-1085-15	1395804 ONTARIO LTD., operation as Blacklock's Reporter v. AGC	Others - Crown (v. Queen) [Actions]	RE
T-897-15	1395804 Ontario LTD. v. Canadian Transportation Agency	Copyright Infringement [Actions]	RE
T-745-15	1395804 Ontario Ltd, operating as Blacklock's Reporter v. Bank of Canada	Copyright Infringement [Actions]	RE
T-477-15	1395804 ONTARIO LTD. ET AL v. CANADIAN FOOD INSPECTION AGENCY	Copyright Infringement [Actions]	RE
T-269-15	1395804 ONTARIO LTD. ET AL v. ATTORNEY GENERAL OF CANADA	Admiralty - Damage (Property & Facilities)	RE
T-2090-14	1395804 ONTARIO LTD v. CANADA (AG)	Copyright Infringement [Actions]	RE
T-1674-14	1395804 ONTARIO LTD. v. SIERRA CLUB CANADA FOUNDATION ET AL	Copyright Infringement [Actions]	RE
T-1613-14	1395804 ONTARIO LTD. v. FRIENDS OF CANADIAN BROADCASTING	Copyright Infringement [Actions]	RE
T-1391-14	139504 ONTARIO LTD., OPERATING AS BLACKLOCK'S REPORTER v. AGC	Copyright Infringement [Actions]	RE

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-1391-14. This 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

Hadopi - Strike One

Apparently HADOPI, the "three strikes" anti-infringement creation of French President Sarkozy, whose wife is an entertainer, and the US entertainment industry, has stepped up to the plate with an embarrassing strike one - namely admitted opyright infringement arising out of its launching logo.

Apparently, it was "une erreur de manipulation." French internet users may wish to remember this turn of phrase.

Here's the story in Torrent Freak, with HT to Duncan Bucknell and the IP Kat.

HK