Whassup - or not - in Voltage, Teksavvy, & CIPPIC Hearing on June 25, 2013?

I wish I could say something more useful about the full day hearing scheduled for Tuesday, June 25, 2013 in Toronto involving Voltage's attempt to get Teksavvy to divulge the identity of potentially thousands of its allegedly infringing subscribers. I have blogged about this extensively in the last few months and recently.

One had hoped that the main materials - e.g affidavits, transcripts if any of cross-examination, and  memoranda, would have been posted by now either by Teksavvy or CIPPIC, which has been granted intervener status to do what Teksavvy is unwilling to do, which is to oppose the motion and to protect its customers' privacy.

But I can't find anything new. The docket is rather confusing, but indicates a flurry of last minute activity including a motion by CIPPIC filed on June 19, 2013 to extend the time for it to file its motion record responding to Voltage that had been due on June 18, 2013 pursuant to the Court's order of May 13, 2013.

Presumably, the motion is still proceeding at 10:00 AM in Tuesday, June 25, 2013 at the Federal Court at 180 Queen St. W., Toronto.

Live tweets will be interesting and useful, if the Court so permits. I suggest the hashtag #Teksavvy - since the real issue here in many respects is Teksavvy's vigorous and expensive effort to date apparently directed at not taking a position on protecting its customers' privacy rights, and instead relying on a law school clinic to do the job. I have suggested several times that Teksavvy's cash flow is estimated to be between $5 and $10 million per month.

I'll update as soon as I find out - or am informed of - anything more.

There's a lot at stake on this motion, not least of which is whether a wide door will be opened to copyright trolling in Canada. It's too bad that the current holder of the keys  to this door is unwilling to do anything more than throw the keys to the door up in the air, and stand by to watch where they land.

HPK

PS #1: CIPPIC has provided me with the transcript of the cross-examination of Barry Logan of Canipre, who provided evidence concerning the alleged IP addresses of the alleged infringers. For the historically minded, here's a link to the corresponding document in the BMG case from 2004. Hoping to get more documents tomorrow at the latest.

PS #2: Here is CIPPIC's Memorandum of Fact and Law.

PS #3: Here is Voltage's Supplementary Memorandum of Fact and Law.

Is the Party Over for the "Happy Birthday" Song?

The Happy Birthday song is in the news once again. Watch the video above for what is perhaps the most historic, famous and transparent performance ever of this song. Viewer discretion is advised.

Here is the complaint in a class action lawsuit in the Southern District of New York, which seeks a  declaration that any copyright rights owned by Warner/Chappell are extremely limited (to certain piano arrangements published in the 1930's) and that the song is and has been for a long time in the public domain.

More to the point, it seeks restitution of all license fees paid for the song going back to 2009. Presumably, that date is based upon a limitation period. And that could mean millions of dollars for the lawyers involved, if this succeeds.

Here's a remarkable paper by Prof. Robert Brauneis - which presumably forms the basis for the litigation. Prof. Brauneis told the NY Times:

“I believe this song is in the public domain and therefore it is not owned by anyone,” Professor Brauneis said in a phone interview on Thursday. He said “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and that a successful legal challenge “might be a model for challenges to other songs.”

The law suit has been assigned to the legendary Judge Louis Stanton.

And here's the best arrangement ever of this song - by Igor Stravinsky, the best composer of the twentieth century: 

Speaking of birthday's. May 29, 2013 was the 100th birthday of Stravinsky's Rite of Spring, easily the most influential musical composition in the last century. It is performed here brilliantly by Michael Tilson Thomas and the San Francisco Symphony:

HPK

More on “Tilting at Windmills”: Ontario Tables Anti-SLAPP Legislation – & How It Could Cover Existing Cases

At just about the same time that news was breaking of NextEra’s controversial lawsuit against Esther Wrightman, the Ontario Government AG, the Hon. J. Gerrertsen, tabled Bill 83 – which would, if passed, introduce some remarkably positive changes to Ontario law regarding #SLAPP lawsuits. The bill, if passed, would provide much needed encouragement of public interest expression, commentary and participation. It would, indeed, serve as a serous chill against litigation of little or no merit that is intended to stifle or prevent public expressions of comment on matters of public interest. @EzraLevant, a well-known Sun News commentator, had some written and spoken comments on June 9, 2013 on the Sun website about NextEra’s lawsuit against Esther Wrightman and whether he sees it as a “SLAPP” suit.   

Bill 83 would provide that if a party is sued as the result of “expression” made by a person concerning a matter of public interest, the defendant can move to have the proceedings thrown out unless the plaintiff can show that:

·       The proceeding has “substantial merit”;

·       The moving party has no valid defence; and

·       The harm resulting from the defendant’s expression is sufficiently serious that that public interest in allowing the proceeding to continue would outweigh the public interest in protecting that expression.

Motions brought under the legislation must be heard within 60 days and, once the motion is made, no further steps can be taken by either party until the motion is finally disposed of. Indeed, the bill creates a process by which a person who brings a motion for dismissal can have an administrative tribunal proceeding automatically stayed if he or she believes that the tribunal proceeding is related to the same matter of public interest that he or she alleges is the basis of the proceeding that is the subject of his or her dismissal motion. The stay remains in effect until the motion is finally disposed of; however, a judge may, on motion, order that it be lifted earlier under certain circumstances.

And the moving party, if successful, can recover full costs if the proceeding is dismissed. If the proceeding is not dismissed, the responding party will not be awarded costs unless the judge determines that such an award is “appropriate” in the circumstances.  The moving party may be awarded “appropriate” damages if the judge finds that the proceeding was brought in bad faith or for an improper purpose.

This is really important – and would dramatically change the legal landscape in Ontario, as any litigation lawyer will know.

At the present time, it’s very difficult to get any lawsuit – even a SLAPP lawsuit –dismissed at an early stage unless a defendant can show that there "no genuine issue requiring a trial" – a burden that a defendant is rarely able to meet, based upon many years of judicial precedent. A more recent formulation of the threshold test for summary judgment is known as the “full appreciation” test:

“Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”

See also here, on the “full appreciation” test.  The Supreme Court of Canada has recently heard arguments and reserved judgment on its consideration of these issues, which arose in the closely watched cases of Bruno Appliance and Furniture Inc. v. Hryniak and Hryniak v. Mauldin, which were argued on March 26, 2013. We can presumably expect to hear from the Court in the next several months. These are very complicated commercial law cases involving a lot of money and allegations of fraud, but none of the elements of a SLAPP case. Thus, whatever the Supreme Court has to say about summary judgments, the resulting and much hoped for clarity about summary judgments cannot and likely will not address the particular types of issues that can arise in a classic SLAPP law suit.

According to Bill 83, dismissal of a SLAPP case at an early stage because the plaintiff cannot show that its case has “substantial merit” should be much easier than getting summary judgment under present rules and jurisprudence – and so it should be in a SLAPP situation. Recall that The Ontario Government defines SLAPP litigation as:

Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

Those affected by existing litigation that would qualify for dismissal under Bill 83, if enacted, will no doubt be delighted to know that this legislation would explicitly apply to lawsuits commenced even before it comes into force, which could be in the fall session later this year.  Although there is a minority government in Ontario, this seems to be an issue that apparently attracts the support of at least one of the opposition parties.

It will be interesting to see what may transpire if NextEra pursues its current litigation against Ms. Wrightman and if this legislation is passed soon in its present form.

Ms. Wrightman’s courageous quest may shed some light not only on windmills but the justice system itself in Canada. This is why she is tilting at windmills in more ways than one.

For those looking for more background, The Ministry’s resource material on anti-SLAPP legislation, including the advisory panel’s report that led up to this bill, is here.And some media material about the new bill can be found here – first four items. 

It should be noted that Ontario is usually a trend-setter for the common law provinces in procedural matters, especially ones that have substantive and “access to justice” significance – and sometimes even for the Federal Government in such matters. This is definitely something to think about in terms of possible amendments to the Federal Courts Act.

HPK

Good News from Simcoe Hall at University of Toronto re Access Copyright (#ACdeal)

U of T has shown strong leadership by decisively giving Access Copyright notice that it will exercise its right to not extend the current license beyond the end of the year. In doing so, U of T invites AC to negotiate a "substantially" better deal:

… if there is to be a renewal of the License there needs to be a clear, demonstrated value to the University over the course of the renewal term – a value that takes into account and gives credit for the expansive interpretation of fair dealing endorsed by the Supreme Court, as well as the amendments to the legislation and other factors.

As I am sure you will understand, the University also continues to explore all its options, including alternative approaches that would involve utilizing other licenses, fair dealing and legislative authorizations to provide comprehensive availability of relevant material for the University’s teaching and learning activities.

            
            (Emphasis added)

Here is a copy of the letter sent by Provost Cheryl Misak to Roanie Levy dated June 6, 2013.

This is a wise approach that shows leadership, confidence and an appreciation of the position of strength that U of T and other institutions now enjoy by virtue of recent legislation, Supreme Court of Canada decisions, and other factors. This also shows U of T’s wisdom in insisting on its right to end the license at the end of 2013, two years earlier than other universities that signed the AUCC model license deal on the basis of the “negotiated settlement” that came as such a shock to virtually all AUCC members in April of 2012.

Congratulations to U of T and to President David Naylor, Provost Cheryl Misak, Senior Legal Counsel Steve Moate, and others involved in this important decision. This good news comes three weeks earlier than the June 30, 2013 deadline everyone was watching. Decisiveness is indeed a virtue.

HPK

Tilting At Windmills - Has Nextera Just SLAPPed a Canadian Erin Brockovich?

A young mother and environmental activist in southern Ontario is being sued by Nextera, a wind turbine company, which  is part of an an American based enterprise that has sales of about $15 billion a year. It apparently cut down a tree with a bald eagle nest, an act which she did not like and which she filmed. Here’s her video.

Here’s Nextera’s Statement of Claim, which required the efforts of three McCarthy’s lawyers to come up with a very long and fulsome list of allegations involving “Offending Material” under the  the Trade-marks, Copyright, and Competition Acts and various common law torts including "common-law trade libel", and one I’ve never heard of, namely “appropriating an insignia in which the Plaintiff has a proprietary interest.”

Here’s a great interview by Ezra Levant, in which the woman explains that she can’t afford a lawyer or even the filing fee for her Statement of Defence.

As Ezra suggests, this could be another Erin Brockovich story. Moreover, Nextera is likely going to learn the lessons of the Streisand effect, which is that trying to suppress a discussion on the internet usually just draws more attention to it.

Is this a classic SLAPP lawsuit? The Ontario Government defines SLAPP litigation as:

Strategic litigation against public participation (SLAPP) has been defined as a lawsuit started against one or more people or groups who speak out or take a position on an issue of public interest. The purpose of a SLAPP is to silence critics by redirecting their energy and finances into defending a lawsuit and away from their original public criticism. Concerns have been raised that SLAPPs also act as a warning to other potential critics. The effect of SLAPP suits is to discourage public debate.

Hopefully, the very courageous Ms. Wrightman will find competent counsel to defend her against this extraordinary combination of wind and legal power.

If NextEra pursues this matter, it will no doubt be reminded that "parody" is now explicitly included in s. 29 of the Copyright Act as one of the recognized purposes of fair dealing. In the light of that amendment and recent Supreme Court of Canada decisions having to do with fair dealing, the 1997 Michelin decision is surely no longer good law - if it ever was - with respect to copyright. That was the case in which Michelin used copyright law to stop a union from protesting with a parody of "Bibendum", the jolly Michelin character and design trade-mark  And even that decision correctly held that the defendant did not "use" Michelin's trade-mark within the meaning of "use" under the Trade-marks Act. The reasoning with respect to trade-mark "use" is still good law. And recent Supreme Court of Canada defamation decisions suggest that claims that attempt to accomplish via the Trade-marks Act what cannot be accomplished via normal defamation law may face a very rough ride if adequately challenged.

HPK