Blacklock’s Botched Blaming & Begging

Blacklock’s Holly Doan has posted a rather hysterical, histrionic, inaccurate, and misleading post that, among other things, misrepresents Prof. Michael Geist’s blog. This Blacklock’s bravura is telling – if for no other reason than its failing to suggest ANY credible ground of appeal of this heavily fact-based and legally solid decision. Once again, here’s the judgment:

1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

Not to be outdone, Ms. Doan’s husband, Tom Korski, appears in a sadly softball podcast interview.

Blacklock’s has kindly provided both of these for public consumption without a paywall:

https://www.blacklocks.ca/this-will-be-law-september-1/#cdnpoli

https://x.com/mindingottawa/status/1801211869656449445

Both of them misstate the careful findings of fact and law by Justice Roy, whose exemplary judgment deals with the use of “licitly” acquired passwords and fair dealing.

Those entities with competently designed websites with “effective” TPMs who understand basic copyright law have nothing to fear from this judgment. Indeed, they should welcome it because it reminds everyone that illicit hacking of a password or content sharing that is not fair dealing can lead to big trouble. The manner in which the work is obtained will go to the fair dealing analysis, but does not necessarily preclude fair dealing.

After all these years and its long litany of litigation losses, Blacklock’s still offers only an individual membership level online. Indeed, its botched business model seems to be that of selling single subscriptions to government departments, posting “inaccurate, deceptive or inflammatory articles”, and then using ATIPs to identify and pursue what it considers to be illegal sharing of passwords and/or content.

If Blacklock’s wants to fundraise off a devastating loss (which is a Donald Trump trick), then Blacklock’s should not mislead potential sympathizers, if there are any. This is clearly unlikely to attract small donors who might otherwise contribute to save endangered elephants or support other meritorious causes. The big players may predictably conclude that any appeal would likely fail and thus simply reinforce Justice Roy’s decision, which in any event is actually helpful to them. Moreover, the SCC is very unlikely to take this case if leave is somehow sought because the SCC doesn’t review fact finding or rewrite statutes. In this case, the statute is what it is and what it has been for the last 12 years re TPMs and the last 100+ years re fair dealing – including several notable decisions since the landmark 2004 CCH decision. Moreover, Blacklock’s Hail Mary fantasy of a legislative fix is extremely unlikely to happen. Both Liberal and Conservative governments have known for decades that controversial copyright revision is not a hill to die on and can indeed be fatal to the careers of whichever politicians lead the charge.

It should be said that the Department of Justice ought to be very pleased with the result of this litigation and the work done by Alexander Gay, General Counsel. Likewise, CIPPIC and Gowlings with respect to its partner James Plotkin’s exemplary intervention.

BTW, where’s @bsookman’s belated Blacklock’s blog?

HPK

Big Black Eye for Bad Built Blacklock’s Business Model: Long Live Felicitous Licit Liberty!

 Blacklock’s lengthy litany of litigation losses has now been extended notably with the long-awaited Federal Court  judgment from Justice Roy regarding TPMs and Fair Dealing that is both monumental and minimal in interesting and important ways. See 1395804 Ontario Ltd. (Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII), <https://canlii.ca/t/k4zfr>

• It is monumental because it is 67 pages of careful, detailed, heavily fact-based findings that are likely bullet proof on appeal because there are no “palpable and overriding” errors and no extricable legal conclusions that are wrong in any way. Indeed, its correctness and common sense are commendable.
• It is minimal because it confirms the obvious point that there someone who “licitly”, i.e. legally, accesses a website without hacking or otherwise illicitly circumventing a TPM can share content consistent with Canadian fair dealing law that goes back to 1911 and the SCC’s venerable “implied right” doctrine.
• No animals were injured in this case – there was no hacking, descrambling or other illicit activity involved. The Government was doing what it paid for and doing its job.
• Enlightened media providers such as the Globe and Mail, NY Times, etc. should  welcome this decision because their sophisticated websites can’t be hacked and the sharing of their content e.g. via cutting pasting for fair dealing purposes is good for business.
• Contrary to some high-powered  social media whining, there is no basis for any argument and no record, in any case, for any argument based on the 2020 Canada-USA “CUSMA” agreement.
• If Blacklock’s (“BR”) is even thinking of an appeal, it may first wish to consider that its likely lack of success will dramatically reinforce this decision. All the more so if it gets to the SCC. But let Blacklock’s  appeal – it will be a “Go ahead, make my day” moment for me and many other observers and potential interveners.
• The likelihood of a legislative intervention on this issue and in response to this decision is close to absolute zero.
• Congratulations to Alexander Gay for the Attorney General of Canada (“AGC”) and James Plotkin (recently made partner  of Gowlings) for CIPPIC who both did superb work.

 Likely to be continued…

 HPK

(P.S.: Let me remind readers, as  always, that nothing on this blog is legal advice.)