Blacklock’s Bombastic Appeal Memorandum

Blacklock’s has filed its Memorandum in its appeal from Justice Roy’s decision earlier this year that meticulously ruled against it holding that :

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.

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Blacklock’s unusually begins its memorandum with bombastic, histrionic, fulsome, fulminating,  and patently problematic language untethered to the record and unusual (to put it very mildly) in my experience in the Federal Court of Appeal, especially over the signature of experienced counsel:

A Case of David vs Goliath

1.Before addressing the substance of the appeal, this case warrants a brief explanation of the circumstances that form the backdrop of this proceeding. Over the years, the Attorney General of Canada’s (“AGC”) long-standing strategy has been to characterize the Appellant, 1395804 ONTARIO LTD.’s (“Blacklock’s”) (and Mr. Korski) as a vexatious litigant and a copyright troll, with the intention of deflecting the narrative away from the numerous government departments that have knowingly or carelessly violated Blacklock’s copyright and technological protection measure (“TPM”). While at the hearing the Trial Judge was adamant that no credence was to be given to the allegations of copyright trolling, it is clear from the Judgment that the Trial Judge’s perception of Blacklock’s was polluted. Throughout the Judgment, Parks Canada is unduly painted as righteous,1 and Blacklock’s is unnecessarily and inordinately tarred and feathered, including the Trial Judge, without cause, impetuously accusing Mr. Korski (Blacklock’s) of fabricating or tampering with evidence. This is a classic case of David vs Goliath, and despite the evidence and law favouring Blacklock’s, Blacklock’s has been pummeled by years of litigation, and unfair treatment, all because Blacklock’s engages in investigative journalism that that exposes cases of waste and/or mismanagement in government departments..

1 The Trial Judge uses words such as “legitimate”; “valid”; “good faith” in describing Parks Canada, see paragraph 101 of the Judgment as an example (AB Tab 2, p 62).

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I will refrain from commenting further on Blacklock’s Memorandum until I see  the Memoranda of the Attorney General (AG) and, presumably, the intervener CIPPIC. BTW, the AG has consented to CIPPIC’s proposed intervention and Blacklock’s has indicated that that it will not oppose CIPPIC’s intervention.

Notably, and despite all the whining, there are no other potential interveners in sight. As I’ve suggested, Justice Roy’s decision is actually good news for major media outlets that have sophisticated websites and password mechanisms.  Here’s my blog from September 4, 2024. As I said then:

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