Warman & National Post v. Fournier – the Interveners Have Started Their Engines - updated

In the Warman v. Fournier copyright litigation, we saw as of March 14, 2013  that that such important copyright questions as:

·         what is substantial,

·         how does fair dealing apply in the context of news reporting, blogs, and critical comment,

·          when the limitation period begins to run for material posted online, and

·         whether there can be copyright in a headline

have been left  by fate to be decided in a case based upon rather strange facts, controversial parties and on what has been up until now a very lopsided playing field.  Leaving aside Richard Warman, the main plaintiff who is no stranger to the instigation of controversial litigation, we saw Mr. and Mrs. Fournier (who for their part are also not your typical non-represented litigants) representing themselves against Warman, who had legal representation, and the National Post, which for whatever incomprehensible and unexplained reason was a necessary party below but was supposedly not even aware of or involved in the earlier proceedings until after the final judgement was rendered.

Nonetheless, the National Post now appears in full regalia on the appeal with prominent copyright counsel eager to establish, inter alia, that it has enforceable copyright in short headlines.  Whether or not one has any sympathy for either Warman or the Fournier’s or both or neither, there is a lot at stake here from a public interest standpoint. It was quite clear on March 14, 2013 when I posted my blog that the National Post with its very experienced copyright counsel would more than adequately represent big corporate copyright. But the public interest representation was quite another matter.

So, I said on March 14, 2013, “Interveners, start your engines.”  And, whether by causation or coincidence, I am pleased to note that is precisely what has now happened.

First, the now ubiquitous CIPPIC sought leave to intervene. CIPPIC is a law school clinic, for which I acted as lead counsel on its first and probably most influential case to date, which involved an intervention in the first attempt at mass copyright litigation in Canada – namely the BMG v. Does case in 2004-2005. CIPPIC played a key role both behind the scenes and on the record in facilitating a positive public interest result in that case. The National Post wants to limit CIPPIC’s scope of intervention. CIPPIC has responded in this way.

Now enter the U.S. based Computer and Communications Industry Association (“CCIA”) which counts, among its membership, Google and Microsoft. It has filed an application for leave to intervene in the Warman case that raises some useful points that are potentially helpful to the public interest point of view. The National Post has opposed this application to intervene in strenuous terms, or alternatively to allow it with limits. Interestingly, one of the grounds for objection to the intervention by the National Post is that CCIA has raised what the National Post considers to be the new, irrelevant and unnecessary issue of the application of a certain provision in the Berne Convention specifically regarding quoatations from newspaper articles.  Ironically, the same counsel now acting for the National Post, when he was acting for CMRRA as an intervener in the Supreme Court of Canada,  strenuously urged the Court in the K-12 Province of Alberta case to consider the very general “three-step” test as set forth in the Berne Convention, which would have been a new issue at the Supreme Court level. Prof. Ariel Katz and I argued that the three-step test as found in international law was an irrelevant “red herring” in the that case – and the Supreme Court apparently agreed with us because there was not a word about it in the judgment.

There may still be some important issues that are not yet be on the table or which could use further focus. Although it is getting late in the day, it is possible that other would-be interveners on both sides may emerge, given that this is now clearly a high stakes case and the playing field has been largely levelled. This could be interesting because there are probably some interests watching this case that don’t really want to see a level playing field and may have hoped that this appeal could have served to at least partially undo what they hubristically and mistakenly regard as the  misguided rulings of the Supreme Court of Canada and the regrettable results, from their point of view, of parliamentary democracy in the form of Bill C-11.

At any rate, at least two very credible potential interveners have indeed started their engines. The countdown is progressing.

There will likely be some to and fro on these intervention applications, but it would frankly be surprising if they were not allowed in these circumstances.

I will keep readers posted on important developments.

HPK

PS - here's CCIA's reply to National Post's attempt to deny its leave to intervene application.

Microsoft Scores Large Damages Award against PC Village et al

Microsoft has just been awarded $250,000 by the Federal Court for the sale of two computers sold with 15 unauthorized copies of Microsoft programs. This includes statutory damage awards of $10,000 for each infringing copy - which is what Microsoft apparently asked for - plus $50,000 in punitive or exemplary damages plus $50,000 in costs. The awards are against some companies and two specific individual employees. Even if the companies are judgment proof, the judgment is enforceable against the individuals and includes injunctive relief.

Although this was a default judgment, it carefully sets out the reasoning process and reviews the applicable case law on statutory damages. It is interesting that these actions were initially defended by a prominent IP firm.

Canada's copyright laws do have teeth when enforcement is clearly warranted and when the plaintiff is prepared to take the necessary steps to go through the judicial process.

Here's the judgment in Microsoft v. PC Village et al.

HK

The Politics of Antitrust Enforcement

The respected journalist and commentator Declan McCullagh has a provocative piece in CNET today about Microsoft's role in the non-deal between between Google and Yahoo, as well as some of the ironic politics involved and some prognostications for the post Bush era.

HK

EU Court Upholds Microsoft Competition Ruling

From the EU Court of First Instance ruling today upholding Commission's large fine and its finding of abuse of dominant position regarding IP:

It is only when it is accompanied by exceptional circumstances such as those hitherto envisaged in the case-law that such a refusal can be characterised as abusive and that, accordingly, it is permissible, in the public interest in maintaining effective competition on the market, to encroach upon the exclusive right of the holder of the intellectual property right by requiring him to grant licences to third parties seeking to enter or remain on that market. It must be borne in mind that it has been established above that such exceptional circumstances were present in this case. (para. 691)

Here's a good article from the IHT.

Here's the CFI decision itself and the Court's press release.

And here's the response from Microsoft's top lawyer and Senior VP, Brad Smith.

It will be interesting to see if antitrust/competition law enforcement in intellectual property ever gets back on track in Canada.

HK