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

Blacklock’s Attempt to Block Resolution of Its Litany of Litigation

(Wikimedia)

Blacklock’s is trying to block the efforts of the Attorney General of Canada (“AGC”) to seek via a counterclaim a summary judgment ruling that might end the seemingly endless litigation attempts by Blacklock’s going back to about 2014 and its attempt to refloat its definitive defeat on fair dealing via a new claim based on Technical Protections Measures (“TPM”).

There is an important motion brought by Blacklock's pending in the Federal Court returnable August 10, 2021. Anyone interested in watching should seek permission at least two days in advance here:

HEARINGS-AUDIENCES@FCT-CF.CA

 The file  is:

• T-1862-15 - 1395804 Ontario Ltd. v. The Attorney General of Canada

The AGC is attempting to proceed with a summary judgment motion that could potentially resolve all of the litany of cases against the AGC and various federal agencies promptly and efficiently. Here’s a link to the AGC’s motion record material, which is concise and readable. I won’t post Blacklock’s motion material because it is extraordinarily lengthy at 1,298 pages and 25,914 KB. I’m always happy, in the public interest, to post public domain material or material for the purpose of fair dealing without a paywall. But in this case, it’s just too cumbersome. Blacklock’s itself is, of course, free to post some or all of it. Maybe it will even do so without a paywall.

I have blogged several times before about Blacklock’s “tendentious and tenacious litany of litigation" here and elsewhere on my blog.

BTW, CIPPIC is attempting to intervene in the substantive motion for summary judgment, once it moves forward.

Here, in the AGC’s own words, is the Overview of the AGC’s response. The highlighting and emphasis is mine. The AGC’s submissions have not yet been ruled upon – but presumably will be on or after August 10, 2021.

OVERVIEW

1.            This is a bold move by the Plaintiff to set aside a discretionary Order of the Case Management Judge Molgat and avoid a motion for summary judgment which it has been trying to avoid for almost two years. There is no basis in fact or law to set the Order aside. The motion must be heard.

2.            On April 4, 2019, the Attorney General of Canada (AGC) proposed a motion for summary judgment in respect of the Technological Protective Measures (TPM) claims contained in the Parks Canada action at a Case Management Conference (CMC). The TPM claims are the only remaining dispute between the Plaintiff and the AGC, given that Justice Barnes had already concluded that the institutional use of the articles published by the Plaintiff constitute a “fair dealing” under the Copyright Act. The results of the proposed motion would dispose of fourteen actions that are before the Federal Court. An agreement was reached by all counsel at the CMC. With the exception of the Plaintiff, everyone in attendance at the CMC, including the Case Management Judge, had a clear understanding on what was agreed to.

3.            Upon being advised that the AGC would be leading evidence in the motion for summary judgment, a matter clearly provided for under the Federal Court Rules, the Plaintiff reneged on the agreement and spent the next two years trying to derail the motion for summary judgment. As explained in this factum, the conduct of counsel for the Plaintiff has been contemptuous of the Court, and include such things as the disregard of numerous Court Directions.

4.            After two years of resisting and after it was clear that the Plaintiff could no longer avoid the motion, the Plaintiff gave notice that it would discontinue the action. The surprise announcement came at a CMC in July 2021, after the Plaintiff was ordered to comply with the Directions of the Court. However, the Plaintiff did not file the Notice of Discontinuance immediately. The AGC used the delay to serve and file a Counterclaim and it renewed the motion for summary judgment under this new pleading, the very motion that the Plaintiff had been resisting. The Case Management Judge allowed the Counterclaim and directed the parties the set dates for the hearing of the motion. The Plaintiff now appeals from that Order.

5.            The AGC contends that the Order of the Case Management Judge was appropriate and necessary. There are no errors of law, mixed fact and law or fact. The motion will dispose of the remaining thirteen actions and, more specifically, it will dispose of all TPM claims before the Court, even in the Related Actions. The order of the Case Management Judge is in keeping with Rules 55 and 385, which allow her to make decisions that allow for the most expeditious means of adjudicating the claims that are before this Court.

6.            The AGC requests that the appeal be dismissed, with costs.

Be sure to tune in on August 14, 2021. The one good thing about COVID is that the Courts are now more accessible than ever. This is one to watch.

 HPK

Update: August 26, 2021 

From the Federal Court Docket August 25, 2021:

Reasons for Order and Order dated 25-AUG-2021 rendered by The Honourable Madam Justice McDonald Matter considered with personal appearance The Court's decision is with regard to Motion Doc. No. 52 Result: THIS COURT ORDERS that this Appeal Motion is dismissed with costs in the all-inclusive amount of $1,000.00 to the Attorney General of Canada. Filed on 25-AUG-2021 copies sent to parties Final Decision Certificate of Order entered in J. & O. Book, volume 1505 page(s) 481 - 481

So, Blacklock's failed in its effort to stop the AGC's counterclaim for summary judgment. I will blog about this shortly.

Blacklock’s Back in Court on May 2, 2017 – How Long will this Litany of Litigation Last?

On Tuesday, May 2, 2017, the Blacklock’s case is back in Court at 9:30 AM in Room 702 at 90 Sparks St. in Ottawa for a case management hearing, where lengthy motion, cross motion and response records and oral submissions will be considered by Prothonotary Tabib. There will likely be a host of counsel representing Blacklock’s and many of the 11 Government of Canada departments and agencies that Blacklock’s has sued. Canadian taxpayers are no doubt going to pay a lot to monitor and participate, even passively, in this “litany of litigation” even while the Attorney General of Canada (“AGC”) takes the lead for the Government. The departments and agencies that have retained counsel other than the AGC are generally using large law firms.

It will be recalled that Blacklock’s badly lost its first test case against Finance Canada in a judgment dated November 10, 2016 that was not appealed. Then, on December 21, 2017 Justice Barnes awarded the Government $65,000 in costs, which was conceivably much less than might have awarded in all the circumstances. Blacklock’s has appealed this award, even though appeals of cost awards are very rarely successful.  In his reasons for the costs award, the learned Judge’ commented that:

[7] …I also reject the Plaintiff's argument that this case raised "strong public interest considerations". Rather, this case was about the Plaintiff's attempt to recover disproportionate damages without any apparent consideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada.

[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department's limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.

(highlight and emphasis added)

This could suggest that future losses by Blacklock’s could result in even higher costs awards against it.

In a nutshell, Blacklock’s wants to go forward with one particular case against the Attorney General of Canada (“AGC”), namely that against Health Canada and one against one of the non-AG Government of Canada agencies, i.e. Bank of Canada, Canadian Transportation Agency of the Library of Parliament. It’s rather unusual for a plaintiff to file and then seek to stay almost all of its own cases – but virtually everything about this litigation has been unusual. Here are Part 1, Part 2 and Part 3 of Blacklock’s Motion Record dated March 21, 2017.

The Government and the other agencies and departments want to ahead with one of the actions on a summary judgment basis because it is said to be indistinguishable on the facts from the previous Finance case, which Blacklock’s lost badly and did not appeal. More interestingly, The Government Respondents want to get a preliminary determination on two threshold questions which potentially affect and, indeed, could effectively bring to an end all the cases, namely:

•            Whether Blacklock’s even has standing to sue, in light of chain of title and retroactive assignment issues involving the articles alleged to have been infringed
•       Whether Blacklock’s’ can expect to recover sufficient actual or statutory minimum damages, should it so elect, in an amount sufficient to justify any of this “litany of litigation”.  As I have previously pointed out, there is a limit of $5,000 on statutory minimum damages where the activity is for “non-commercial purposes”. I have also previously mentioned the cautionary tale of Catherine Leuthold, who had hoped to collect $22 million from the CBC, but recovered only $19,200 and was ordered to pay about $80,000 in costs.

Here is the Cross Motion Record of the AGC dated April 4, 2017. Finally, here is Blacklock’s Response to the AGC’s Cross Motion dated April 18, 2018.

An interesting sidebar has begun to emerge prominently from this mass of material and concerns two individuals, namely Nick Fillmore and Mark Taliano. I have previously posted the pleadings in Blacklock’s Ontario Superior Court case against them. See the Statement of Claim against Fillmore and Taliano here  and the Statement of Defence here. The AGC included in its Motion Record dated April 4, 2017 a short Affidavit from Mr. Nick Fillmore (highlight added) in which he explains why he and Mr. Taliano, as individuals, agreed on December 16, 2016 to pay Blacklock’s a total of $21,750 within 60 days. He also noted that they had incurred legal and mediation fees of about $8,000.

This was apparently included and referred to by the AGC to make the point, inter alia, that “The Court has found that Blacklock’s claims disproportionate damages, and that other institutions have settled for business reasons”. The AGC notes  that “a community organization made up of volunteer retirees  was forced to settle because its members could not afford to pay the substantial legal fees required to defend themselves against Blacklock’s” and suggests that that the Court should “strive for proportional procedures that will achieve a just result”.

Interestingly, about a week after the AGC’s motion record was served, Blacklock’s published on April 11, 2017 one of its few unlocked articles entitled $22K Copyright Settlement By Canadian Facebook Bloggers. It begins by stating that:

A bootleg news aggregator has settled a $21,750 copyright claim after republishing articles on a Facebook blog, the largest known settlement of its kind in Canada. The defendants’ lawyer was Professor David Fewer, director of the University of Ottawa’s Canadian Internet Policy & Public Interest Clinic. [CIPPIC]

Blacklock’s Reporter in 2015 sued the blog operators for $20,000 as well as punitive damages and costs for republishing dozens of password-protected articles. In an unusual settlement, the aggregator One Big Campaign paid $21,750, volunteered a public apology and waived all confidentiality of settlement terms.

Actually, as I noted earlier  when first mentioning this particular lawsuit, Mr. Fewer was acting “not in his capacity as Director of CIPPIC, but rather in his personal capacity”. Blacklock’s also labels Mr. Fewer as “a copyright adviser to the Department of Justice”, which I understand not to be the case.  

It’s interesting that Fillmore and Taliano were not represented by CIPPIC itself, and therefore had to pay Mr. Fewer’s legal bill. Mr. Fillmore states in his affidavit that “we feared that, even if we won, our expenses might run as high as $40,000 or $50,000”. This suggests that they were expecting a very much higher legal bill at the end of the day, even if they won. Presumably, if CIPPIC had represented them, they would not have had to pay their own legal costs. CIPPIC’s mission is stated to be:

CIPPIC has a dual mission:

·         to fill voids in public policy debates on technology law issues, ensure balance in policy and law-making processes, and provide legal assistance to under-represented organizations and individuals on matters involving the intersection of law and technology; and

·         to provide a high quality and rewarding clinical legal education experience to students of law.

(highlight added)

Inexplicably, Blacklock’s seems to focus attention in its article on Mr. Fewer, and even includes an enlarged picture of his signature at the top of the article.

Blacklock’s also suggests that Fillmore and Taliano “rejected a $5,000 settlement offer from Blacklock’s”, which is apparently contradicted by Mr. Fillmore’s affidavit – upon which Blacklock’s has chosen not to cross-examine. Indeed, Mr. Filmore swears that he and Mr. Taliano offered to pay $5,000, which Blacklock’s “declined”. Blacklock’s makes a number of other contentious assertions in the article, and fails to note that its assertions have not been tested in Court. In its response dated April 18, 2017, Blacklock’s is attempting to put a lot of additional evidence concerning Messrs. Fillmore and Taliano on the record through an assistant’s affidavit, and, as noted, has chosen not to cross-examine Mr. Fillmore.

Without in any way commenting on the substance of the Fillmore and Taliano settlement, there are some aspects to this situation that would clearly seem to invite interest. In any event, the AGC and Blacklock’s have both pushed this issue into the limelight.

The amount of the settlement, $21,750, is more than the amount sought in the lawsuit, which in the case was $20,000 (forget about the demand for “punitive” damages). We do not necessarily know all that happened in this case. The Ontario Superior Court, unlike the Federal Court, does not provide an online docket, which usually gives some idea of what it happening in a case. I have asked Mr. Fewer to call me about this case, but he has not done so. In any event, he would presumably by constrained to some extent by solicitor-client privilege.

The settlement comes after Blacklock’s resounding loss in the Federal Court on November 10, 2016 and after the appeal period had passed. Not only was there a very favourable and detailed ruling in place from a very experienced Judge. The Government had left a legacy of applicable case law and material on the public record that was available to any other litigants.

Settlements of litigation are usually confidential. However, in this instance, it appears that Fillmore and Taliano felt compelled to not only let Blacklock’s exploit their unhappy result in public but, indeed, to agree to publicly apologize. Their Facebook page now appears to be dead in the water. On December 20, 2016, the Facebook page “Campaign to Build One Big Campaign’ posted an apology and a notice that “This site is now closed”. Ironically, the “unusually trenchant costs award” against Blacklock’s in Federal Court came out the very next day.

I have no idea what the merits or lack thereof of the lawsuit against Fillmore and Taliano may have been and will not speculate because nothing has been proven in Court. Second-guessing in this case about the lawsuit or the settlement could be inappropriate and inaccurate, and I am not doing so.  Messrs. Fillmore and Taliano had experienced counsel. However, it is worth recalling that, if the activity involved was for “non-commercial purposes”, the maximum amount of statutory minimum damages would arguably have been $5,000 – unless Blacklock’s could have somehow proven more in actual damages, which would have been extremely unlikely. Nonetheless, according to Fillmore’s affidavit which has not been cross-examined upon, he and Taliano – for whatever reason – felt “seriously intimidated” and settled for more than four times this amount.

What is interesting about this Fillmore and Taliano sidebar is the apparently disproportionate and defensive attention given to it by Blacklock’s. Perhaps more will become apparent on May 2, 2017.

Overall, this case has elicited much attention. On the one hand, Blacklock’s is arguably attempting overall to build a business model based, in effect, on a legally non-existent ability to control the “right to read” and to make this a test case for the future of journalism, even though Blacklock’s cannot readily be compared to the Globe and Mail, the Toronto Star, the New York Times of The Economist or any other readily apparent established and successful journalism model. Perhaps its closet analog is the Hill Times, which is a very successful Ottawa family owned publication with a much friendlier business model that has operated with great success for almost three decades.  A much-valued feature of its business model includes the ability to buy a single story issue in electronic form for $5.00. This is in sharp contrast to Blacklock’s business model. To the best of my knowledge, the Hill Times has never sued anyone. Indeed, the Hill Times business model seem to depend on quality, value and the very considerable goodwill of its customers, which would seem to be very similar to the same Ottawa government and NGO base that Blacklock’s is so busy suing.

Justice Barnes’ stern words in his costs award should be recalled:

[9]    I am also troubled by Plaintiff’s attempt to claim an excessive amount of damages beginning with its demand for compensation completely divorced from the Department’s limited use of the two articles. In no circumstances would Blacklock’s losses have exceeded the cost of individual subscriptions by the six officials who read the articles; yet Blacklock’s demanded a license fee equivalent to its bulk subscription rate of over $17,000.00.  This practice appears to be consistent with Blacklock’s usual approach which is to hunt down, by Access to Information requests, alleged infringers and then demand compensation based on an unwarranted and self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in several instances government departments acquiesced for business reasons and paid the full amounts demanded. In this instance the Department appropriately took a hard line and succeeded in its defence.

(highlight added)

HPK

PS - May 2, 2017

Case management conference adjourned to May 12, 2017. Court looking for solution on consent in #Blacklock’s unique "litany of litigation".

HPK