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

Security Intrests in Intellectual Property - WIPO, UNCITRAL and Canada

WIPO is having a "Information Meeting" on IP financing on March 10, 2009. Here's the program. Canada is apparently playing no role in this program, unless some officials are planning to attend.

I am frankly disappointed that our Government has not been more involved with WIPO on this issue, considering all the work that the late and lamented Law Commission of Canada ("LCC") did on it, which resulted in a book that I edited which includes contributions from leading experts in Canada, Australia, the USA and UK. This was a great project and I was pleased to have advised the LCC on it. It's a pity that all of the work is apparently being ignored, even by Canada's own government.

BTW, here's info about the book, which includes a preface by Hon. Marybeth Peters:

And for those who want a quick tour of the issue, here's the unofficial version of Chapter 1, which is the version that I presented at the Fordham Conference in 2001.

Nonetheless, despite the state of the art work done under the LCC in Canada, officials from CIPO and the Federal Department of Justice are involved with a process at UNCITRAL that has been dealing with these issues for a long time in mysterious ways that don't adequately involve Canadian stakeholders. Unfortunately, although Canada has played a leading role in the work of UNCITRAL through participation of the Department of Justice, there has been almost no consultation back home in Canada.

Even when there has been contact, there has not been enough time to react. For example, I received a link to this 541 page document on October 16, 2004 four days before an UNCITRAL Working Group was due to meet along with about 8 other lengthy documents , all of which were dated much earlier in the year.

Although I can't speak for the Intellectual Property of Institute of Canada, one might have thought that it - as Canada's leading dedicated IP professional institute - would have had a meaningful role in this process. However, this has not been the case because of the inadequate consultation.

All of this is a pity because, as if the issues of IP financing were not important enough anyway, the recent world economic mess makes them even more critical. Many companies may have little left in this economy other than their IP - and IP can be used to unlock credit and to secure financing, and in other creative ways.

All of this, unfortunately, is not something that our Government seems to be eager for us to know about or be involved with.

The fact that UNCITRAL's efforts have not resulted in hard law or a treaty and are still at the soft or model law stage is hardly comforting. Maybe they should have gone for a treaty approach. Or maybe they will - but it may be too late for Canadian stakeholders to have meaningful input. This is what happened with the 1996 WIPO treaties which morphed from soft model law to a very important and controversial treaty before many people knew what was happening.

There are also significant questions as to why UNCITRAL is leading on this issue and not WIPO, but those questions are for another day.

HK