On June
3, 2024 Barry Sookman promised via a Tweet that he would
provide a blog about the Federal Court’s
Blacklock’s Reporter (“BR”) decision of May 31, 2024 –
which he said was “riddled with flaws”. On August 7, 2024 he followed up with
this fulsome blog of some 17 pages in small print PDF.
Readers who are connoisseurs of English language ambiguities and legal
scholarship may wish to refresh their legal linguistic lexicon by reminding themselves of
the various meanings of “fulsome” and considering which one or
more apply in this case.
Barry
and I have appeared on opposite sides of the aisle in the Supreme Court of
Canada twice. I was on the prevailing side both times.
I have
lost interest in any extra-judicial or unmoderated social media or blog debate
with him, after our “kerfuffle” from a dozen years ago where I, Ariel
Katz, and Bill Patry confronted him and
his colleague Daniel Glover about how they “misstated” the state of American
fair use law to the Supreme Court of Canada in the 2012 Alberta case, in which Barry, Daniel,
Ariel & I were all involved. Thankfully
the Court wisely paid no attention in its reasons to that aspect of their submission
and their side lost. I might also mention some battling blogs and live conference
exchanges that Barry and I had back in 2014 concerning the Copyright Board’s
waste of resources over its “unlocatable” owner mandate. Frankly, I don’t wish
to engage in any sequel to those episodes. Accordingly, my comments now will be
short and, hopefully, far from fulsome in any sense.
Barry’s
argument is, overall, arguably a “straw
man” argument. He says:
You
might think after reading the decision that
- it decided or correctly decided
that: a person can buy a single subscription to a news service and rely on fair
dealing to copy and distribute articles to any interested readers to avoid
paying for a bulk or organizational license and paying the usual price;
- an online subscription service
which makes reasonable efforts to bring online license terms to the attention
of subscribers (including sophisticated subscribers) cannot enforce those terms
unless the specific license terms are brought to the subscribers’ attention
during the contracting process; fair dealing is a defense to the violation of
the Copyright Act’s prohibition on circumventing TPMs;
- fair dealing trumps the Act’s
anti-circumvention prohibition; and
- a person who buys a subscription
to a news service can copy and distribute copies of articles along with
passwords to enable others to unlock the articles without any person being
liable for violating the Act’s legal protection of TPMs.
But,
that is NOT what Justice Roy ruled. Here are some of the key extracts of what
Justice Roy actually said in his decision:
[119] As a result, the issue must be
circumscribed to the limited evidence brought forward by the parties. Hence, it
has been established to the Court’s satisfaction that Parks Canada purchased
the only type of subscription made available by Blacklock’s Reporter. That
subscription gave Parks Canada access to a password which was used to gain
access to some articles published by BR which concerned Parks Canada’s mandate
and operations. The evidence does not establish if the sharing required to
conduct the research undertaken by Parks Canada in its monitoring of articles
was done by sharing the password, sharing copies of articles through e-mails or
in paper format. There appears, however, to be common ground that there was
some sharing of the password. The Court is satisfied that the use made of the articles accessed
through the validly obtained password constituted, on the facts in this record,
fair dealing according to section 29 of the Act. Fundamentally, Parks Canada did
not circumvent what is presented as an effective TPM. It used the password
licitly obtained for the purpose for which it was created: gaining access to
articles located on a website. Once the articles were obtained, they were used
in a manner consistent with recognized fair dealing.
[120] In fairness, BR was
essentially reacting to the arguments put forth by CIPPIC. It remains, however,
that its counter arguments were suffused with various concepts that were not
defined or do not find support in our law. Thus, repeatedly BR referred to
a “paywall” being circumvented. The paywall is equated with a TPM
that is circumvented because the paywall is meant to “prevent access
without an authorized username and a password” (Blacklock’s Reporter’s
response to CIPPIC memorandum of fact and law, para 31; see also para 42).
First, “paywall” is not defined. Second, it would appear doubtful
that a paywall is strictly speaking a TPM, as stated at paragraph 31. That
conflates the means and the end. Rather the TPM used is the means to the end,
which may be a so-called “paywall” or something else. It is the
technology, device or component created that results in a paywall. In other
words, the TPM exists for a purpose, but it is only the means to satisfy a
purpose that may be a paywall. It is the means that is not to be circumvented
whether that be technology, device or component. Barnes J in
the Department of Finance case said that “(t)he suggestion that
Blacklock’s business model cannot survive in the face of the minor and discrete
use that took place here is essentially an admission that the market places
little value on Blacklock’s work-product … It also goes without saying that
whatever business model Blacklock’s employs it is always subject to the fair
dealing rights of third parties” (para 45). I certainly share that view. A
paywall may be the result of some technology, device or component, but it is
not the technology, device or component. The paywall is not the TPM. It protects against
unauthorized intrusions and is part of a business model. That protection is not
jeopardized by Parks Canada purchasing a subscription for the purpose of
research constituting fair dealing. In the case at bar, there is no
circumvention of a TPM simply because the password was not circumvented: it was
properly obtained and used for a legitimate purpose.
[125] CIPPIC’s submissions were more fulsome. Fundamentally, it
argues that the TPM provisions do not apply to restrain fair dealing; using a
validly obtained password to access content is not circumvention. I agree. I
would add nonetheless that how the password was obtained is significant as this
may prevent a user from invoking the fair dealing provisions of the Act.
Obtaining content by descrambling a signal or decrypting a communication may
render invoking fair dealing very difficult to establish successfully. It is telling in my view that s
41.11(1) of the Act provides for an explicit exception for law
enforcement and national security against liability for circumvention. But this
is not the case before this Court. Our case is much more straightforward in my
estimation and it is limited to a very narrow scenario.
JUDGMENT in T-1862-15
THIS COURT’S JUDGMENT is the following:
1.
It is hereby declared that, having
purchased the only type of subscription available, which was allowing the
acquisition of the password needed to access articles produced by Blacklock’s
Reporter, Parks Canada’s use of the password in the circumstances of this case
constitutes fair dealing under section 29 of the Copyright Act.
2.
It is hereby 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.
3.
There
is no order as to costs.
(highlight and emphasis added)
BTW, BR
got a big break with the costs order, based upon the Attorney General of
Canada’s (“AGC’s”) lack of success on the relatively minor and non-essential
issue of “rectification”, which was a small part of the case. When BR lost the
earlier Finance case before Justice Barnes, it got nailed for costs of $65,000 in the
Federal Court and $3,500 in the Federal Court of Appeal.
BTW,
Barry refers several times to the 2016 decision of Justice Barnes in the
Department of Finance case which Barry says was “wrongly decided” but which was
NOT appealed – other than the very unsuccessful appeal on costs. Barry also refers several times to BR’s one tiny
victory – namely the Small Claims Court “Vintners” decision. But, as any law
student should know, small claims court decisions have ZERO precedential value
in the Federal Court. Barry also refers to the notorious Nintendo decision, which was
cut and pasted from the Plaintiff’s memorandum when the law firm representing
the Defendant (the same one now acting for Blacklock’s) settled the case and did
not, although entitled, reply and make final written submissions. Indeed, the
Respondent’s counsel did not appear for the final oral argument.
Followers
of Federal Court decisions will know that Justice Roy is very thorough, very
decisive, and very solid in his rulings. Believe me, I know – having been counsel
on the losing end of one of them. This one took him almost a year – which means
he was exceptionally careful and deliberate. If any of it can be accurately
characterized as “obiter dicta”, so be it. Carefully crafted obiter dicta
can be very instructive to careful and conscientious counsel and their clients
and should not be ignored, especially in important and closely watched cases.
Anyway,
I have blogged fulsomely about BR over the years.
But don’t take only my word about the latest decision in its litany of losses. Here are some other takes from notable sources about Justice Roy’s BR ruling:
What
lies ahead? BTW, Justice Roy refers many times to the lack of adequate evidence
from BR about the technological aspects of its case re TPMs. Needless to say,
it is far too late in the day to fill that gap.
We
shall get some clue on August 19, 2024 when BR will “provide the Court with a
status update regarding a possible appeal of the said Judgment, as well as any
discontinuances to be filed." Just why BR agreed to do this by August 19,
2024 is unclear, since its deadline to actually file a Notice of Appeal from
Justice Roy’s judgment isn’t until September 3, 2024 by my calculation.
FWIW, I
would frankly be surprised, but not shocked, if BR actually does appeal. As I have
said, it refrained from appealing the
substantive aspect of Justice Barnes very important decision and instead only
appealed – and very unsuccessfully – the costs order.
An
unsuccessful trip to the Federal Court of Appeal (“FCA”) could be very costly
in terms of legal costs to BR’s lawyer
and to a lesser extent to the AGC.
Above
all, an unsuccessful appeal would reinforce Justice Roy’s decision, which
nobody, as far as I know, except Blacklock’s and Barry have suggested is wrong
in any reviewable way. It must be remembered that, in any appeal here, fact
finding will be reviewed only for “palpable and overriding errors” and
extricable or self standing rulings on the law will be reviewed for
correctness. See Housen v. Nickolaisen 2002 SCC 33. Obiter dicta is not
reviewable. If BR decides to appeal to the FCA and loses, it’s very hard to
conceive of why the Supreme Court of Canada would grant leave to appeal in this
case. And if it gets that far and the Supreme Court actually does take the case,
there’s an old adage about “be careful what you wish for…”
In any
event, stay tuned. We may know more after August 19, 2024.
HPK
PS: August 22, 2024
Blacklock's counsel advised the Court on August 13, 2024 that:
In accordance with the Direction of the Court dated July 29, 2024, Blacklock’s can advise that it
will be filing an appeal of the May 31, 2024 Judgment of the Honourable Justice Roy in the Parks
Canada action (T-1862-15). As such, Blacklock’s position is it is pre-mature to file any
discontinuances at this time.
This appears to have been posted only on August 19, 2024.
Potential interveners, as well as several government departments and agencies that have related matters pending, may be interested. The deadline for Blacklock's to file its Notice of Appeal appears to be September 3, 2024.
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