Blacklock’s has announced that it will
appeal Justice Roy’s decision of May 31, 2024 in 1395804 Ontario Ltd.
(Blacklock's Reporter) v. Canada (Attorney General), 2024 FC 829 (CanLII),
<https://canlii.ca/t/k4zfr>. See
my recent blog about this here.
Here is Blacklock’s Notice of Appeal dated August 30, 2024.
This was a very lucid decision about
the licit use of a password by a government employee who was just doing her job.
The decision carefully balanced the provisions of the Copyright Act
dealing with technological protection measures and fair dealing. It must be
remembered at all times that, according to no less than the Supreme Court of
Canada:
- Fair dealing is a user’s right
- It must be given a large and liberal interpretation
- It is always available
See the Supreme Court of Canada (“SCC”)
decision in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC
13 (CanLII), [2004] 1 SCR 339, <https://canlii.ca/t/1glp0>,
which is the Magna Carta of Canadian copyright law.
Apart the sometimes fictional, fulsome,
and even false fulminations of
Blacklock’s and/or its very few supporters, the decision is not controversial
and is certainly not “riddled with flaws”. The following respected law firms and a noted professor have written about it
responsibly and usefully;
On the other hand, we have seen Barry
Sookman’s blog that is riddled with
controversial comments and Lorne Gunter’s so called journalism that is unprofessional,
unreliable, indefensible, and unworthy even of the Toronto Sun. We have recently seen Blacklock’s
itself has published false information,
such as stating that comments by Messrs. Gay and Plotkin (who both were counsel
in the Federal Court) were deleted from LinkedIn.
Blacklock’s lost the case in large part
because it failed to provide adequate evidence about TPMs generally and its own
site in particular and failed to show how Parks Canada allegedly broke the law
in the course of its “licit” acquisition of a password and its exercise of its
fair dealing rights. The judgment demonstrated how very unsophisticated
Blacklock’s website and password mechanism was at the material time. (It still
is.)
Copyright owners enjoy certain rights
under s. 3 of the Copyright Act. These rights do NOT include:
- The right to read
- The right to link to copyrighted material
- The right to trump users’ fair dealing rights.
For example, the well respected and
very opinionated maximalist copyright lawyer Barry Sookman says on the “Terms”
provisions for his blog that:
Copies of blog
posts may be used for educational instruction and for research, private study,
and other educational purposes, as long as the dealings are fair. However, no communications to
the public or making available to the public, syndication, republication, or
commercial use is permitted without the express written permission of the
author of the post. (highlight added)
Barry cannot stop me or anyone else
from posting a link to his blog about the Blacklock’s case
or from quoting some or even all of it, if appropriate, for fair dealing
purposes, if such quotation meets the six factor test set forth by the SCC in
the CCH decision. Such an attempt to stop such exercise of user’s rights could
be a copyright “make
my day” moment
😉
As for the Blacklock’s appeal:
- The grounds of appeal as set forth in the Notice of Appeal dated August 30, 2024 are unusually fulsome and numerous
- The judgment is unusually long and meticulously crafted by a careful judge whose reasons are not easy to appeal successfully – as I know very well firsthand
- The more that Blacklock’s and its acolytes kvetch about this case, the more they are likely to invite unsympathetic interveners (Blacklock’s should learn to spell that term sooner or later. Spoiler alert: it is NOT “intervenor”)
- Blacklock’s has an unblemished lengthy litany of losses in the Federal Court going back to 2016 and it didn’t even try to appeal Justice Barnes devastating decision in the Department of Finance case 1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>, apart from a notably unsuccessful https://excesscopyright.blogspot.com/2016/12/blacklocks-must-pay-65000-for.htmlattempt to appeal the costs order
- The established and reputable mainstream media are not likely to be onside with Blacklock’s. Such organizations have sophisticated websites that make password sharing difficult if not impossible and use paywalls carefully and strategically, realizing that some copying and sharing can actually be good for business. Some, such as the NY Times and Washington Post, even encourage such password free content sharing of whole articles with “gift” copies of otherwise paywalled articles. I know this because I subscribe to both of these admirable sites
- It will be interesting to see if the library, educational, research, consulting, or other user-friendly sectors weigh in here as interveners in favour of upholding Justice Roy’s decision.
Blacklock’s, true to form, has tried to
attack its critics, such as myself. More
seriously, it has tried to attack opposing counsel, such as Alexander Kaufman,
counsel in the Finance case (he has since become an Ontario Superior Court
Judge), Sarah Sherhols, and more recently Alexander Gay who had
carriage of this case for the Attorney General of Canada (“AGC”). Such attacks –
including on Mr. Gay’s weight (See some Blacklock’s DMs below) - are unworthy
of any so-called journalist in Canada, where Trump style tactics are not
acceptable.
Alexander Gay was, but no longer is, the AGC counsel in the Federal Court case that
is now under appeal. He has since moved on to much bigger targets at the
Competition Bureau. He did an outstanding job as AGC counsel, even though it
was apparent that the Government had tied his hands to some extent and apparently
forced him to pull his punches on some key TPM related arguments. This is what
Government bureaucrats sometimes do in copyright files – especially those at
Heritage Canada and its predecessor the Department of Communications where I
have seen this first hand. This is unfortunate and short sighted – it’s best to
let good lawyers be good lawyers and not limit their ammunition or strategy. Hopefully,
the AGC will not attempt to tie the hands of Mr. Gay’s successor on the file.
Any such attempt may well attract notice – from me and potentially others who
care about justice, the rule of law, and good policy. If the bureaucrats don’t
like the legislation, they should try convince their minister to attempt to
amend it. That is how things are done – or should be done. BTW, previous
ministers or wannabe ministers who have attempted to controversially amend the Copyright
Act have found such attempts to be career limiting. Ask Sheila Copps or
Sarmite Bulte. And taking stupid policy viewpoints at the behest of
ingratiating lobbyists sometimes does not end well even for bureaucrats – and can
indeed end very badly.
Fortunately in this case, CIPPIC
stepped in to intervene and was ably represented by James Plotkin. Mr. Plotkin
did his job in the true spirit of vigorous and uncompromised advocacy and
service to the courts in the great tradition of the late Gordon F. Henderson.
Mr. Plotkin did so admirably and pro bono to the great credit of
Gowlings. I knew Gordon quite well in his last years and I’m confident he would
have been proud and is now smiling down on this file and James’ & Gowlings’
contribution.
So – let us hope that Alexander Gay’s
successor in this file in the appeal process does just as vigorous and
competent a job as Mr. Gay and, if anything, has fewer restrictions on his
brief. And let’s hope that James Plotkin will be there for CIPPIC with as much
scope or even more to act as an essential intervener.
As for this appeal, I remind readers
once again that I’m retired and not practicing law and that nothing on this
blog is legal advice. That said, my personal opinion about this appeal is that
Blacklock’s should be careful what it wishes for. A loss in the Federal Court
of Appeal could be costly financially and substantively, and I would be very surprised
if the SCC were to grant leave to appeal in this case.
HPK
***
PS – FYI, here are just some of the
many unsolicited DMs I have received from Blacklock’s over the last three
years. I have not responded. (highlight added)
Hi Howard, only blocked you with
comment to make sure those MPs, Senators and Leaders’ Offices who pay for our
work and follow my personal twitter account are reminded there’s a serious
problem in the Justice Dept that needs to be sorted out. It worked. So, thank
you for the “black eye” description, its violent tone had the desired effect on
legislators. In the meantime, there are still years ahead in this litigation. I
realize age is a factor so I hope your health holds out. We are working this
Labour Day. What would you expect? Tenacious like nobody you’ve ever met. —
Holly Doan
Sep 6, 2021, 7:34 AM
Hey Howard, How are you and Chubby Sleeves @alexandermgay
and @mgeist doing?? We
fucking love this ruling. See the reaction? Could not have asked for more.
Conservative MPs reaching out DM, what do we do with this??? Me, I say do
whatever you like, but Blacklock’s work continues with even greater vigour. I
love accountability journalism so much!
Jun 3, 2024, 6:14 PM
I wonder - do you know Howard - did DOJ
think that winning the right to read while withholding license would starve
Blacklock’s? If so, then nobody wins. We lean in harder, subscriptions
continue, and independent accountability journalism wins. So much money wasted,
and nothing changes, right? Then the Conservatives take power and ask
Blacklock’s opinion on how to tighten fair dealing. Holly Doan and John Degen
on speed dial. Congratulations freeloaders! Does Alex have a plan for his career before the
government changes?
Jun 13, 2024, 11:16 PM
Loved your blog BTW. Might quote it in
the future. Certainly will publish that chubby sleeves photo. It’s gold! Blacklock’s
revenues up 14% over last June. Legal bills paid and ready for another great
decade of accountability journalism! To be sure, it’ll be different under a new
administration.
Jun 28, 2024, 1:38 PM
From September 4, 2024:
Sir John A loved to quote Mark Twain:
“Never argue with someone who buys ink by the barrel.”
We have always appreciated your
usefulness in passing on messages to the highly emotional Alex Gay. With
thanks, 🙏🏻
We have always appreciated your
usefulness in passing on messages to the highly emotional Alex Gay. With
thanks, 🙏🏻
In fact, just remembering, Mr Gay
admitted once in a CM conference to his emotional nature. That’s what Andrew
Gibb was brought on. Very wise of DOJ to take Alex off the case, no?
You there, Howard? You’re so bold in
blogs but never reply. Would love to chat. We’re in the Glebe, where are you?
…
So, coffee?
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