Supreme Speculation

  
Supreme Court of Canada watchers - which now assuredly includes any and all Canadian copyright lawyers - are wondering why the Supreme Court is going to hear five (5) copyright cases, presumably in two days on December 6th and 7th, 2011.


At least three of these cases would have seemed to be unlikely choices under normal circumstances, at least in the eyes of most copyright lawyers, for the granting of leave to appeal. Moreover, for the Supreme Court to hear five (5) copyright cases in two days  is unheard of in copyright law - and is a very rare if not unique event regardless of the subject matter in this Court's history or that of any other highest court. These are not motions. They are full fledged appeals, with a multiplicity of parties and counsel in most of the cases and several interventions already permitted and more applications to intervene expected. Quite apart from the logistics of how these two days may unfold, there is much speculation about what the Supreme Court may have in mind overall.


Here's something else to speculate about. There's another potentially interesting copyright case in the pipeline that was also decided by the Federal Court of Appeal on judicial review from the Copyright Board, and for which  leave has been sought but not yet ruled upon. This inovlves SOCAN and CSI, and the issue of the territorial scope of the Copyright Act, and consideration of what constitutes the “authorization” of a reproduction of a work.This is case CMRRA-SODRAC Inc. (CSI) v. SOCAN, Sirius, Canadian Satellite Radio Inc., et al. (SCC no. 34092).  In this instance, it is now past the usual time of four months or so after the filing of the leave to appeal application that it takes the Court to rule.  And the Court just last week granted leave to appeal in the NRCC "soundtracks" case (Re:Sound v. Motion Picture Theatre Associations of Canada et al. (F.C.) (Civil) (By Leave) (34210), in which the leave application was filed more than two months later - and which almost nobody thought would would be granted.


Could it be that the Court will hear this "authorization" case as well? And during this already uniquely busy two days in December?  That would make six (6) cases in two days - and would give court watchers even more to speculate about.


And to add to all of the mystery, we may have two new Supreme Court judges by the time these cases are heard.


HK

Messy Mass Litigation in the USA - "staggering chutzpah involved" - Should Canadian Courts use "assessors" in some cases?

A recent dramatic development in the USA shows just how messy some mass file sharing litigation can become in that country.

According to Ars Technica, "A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission."  Here's the ruling.

The Judge stated that:

To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision.10 All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions. (emphasis added).

An interesting aspect of this ruling is that the Court appointed three attorneys ad litem (the “Ad Litems”) to represent the Does. The "chutzpadik" attorney was ordered to pay their costs in bringing the motion for sanctions.

The subpoena process is very different in the USA than in Canada, where it is mercifully much less susceptible to misuse or abuse.

However, it may be worth considering that Federal Courts Rule 52 allows a Federal Court judge to appoint a neutral "assessor" in certain types of situations to provide impartial expert advice to the Court. If no ISP or other entity is prepared to look out for the potential John and Jane Does in these types of situations, at least with respect to assessing the sufficiency of the evidence for the production order, this procedure may be worth considering.

Indeed, the late Gordon F. Henderson specifically recommended the use of "assessors" in appropriate circumstances in IP cases. Historically, they had been used mainly in admiralty cases, but there is no inherent reason why their use should be so limited.  This is discussed at page 41 of his 1991 report entitled Intellectual Property Litigation, Legislation and Education. (I was privileged to have worked very closely with him on that prescient document).


HK

Hurt Locker Lawsuits About to Detonate in Canada?

Michael Geist reports that the Hurt Locker litigation campaign is being imported into Canada.

An order to disclose the identities behind a list of IP addresses furnished by Volage Pictures LCC has been obtained.

It appears that the three ISPs involved, namely Bell Canada, Cogeco Câble inc. et Vidéotron s.e.n.c., did nothing to protest the issuance of the order. They did not even appear on the motion. Thus, it is not apparent whether or to what extent they reviewed whatever evidence was filed to verify whether it met the reliability tests required by the BMG judgment,  and whether the process was otherwise consistent with the privacy rights of their customers. It doesn't look as if these ISPs were or are very concerned.

Indeed, in the BMG case, in which I was involved, Bell and Rogers did virtually nothing to protect their customers. They sent in prominent counsel essentially to watch the proceedings, and to look out for the ISPs' interests. Vidéotron  was actually on the side of the record companies. It was probably no coincidence that, even then, these companies had substantial IP ownership interests.

In BMG, the ISPs that stood up for their customers' privacy rights were Shaw and Telus, who retained very capable and active counsel, who vigorously and effectively cross-examined upon the very deficient affidavit evidence that  was filed. CIPPIC, the intervener, for whom I acted as lead counsel, along with  Alex Cameron who handled the privacy aspect, fought very  hard to ensure that there was an adequate copyright basis and sufficient privacy safeguards in place. This would have required the record companies to provide sufficient, reliable non-hearsay evidence. They were apparently unable or unwilling to do so and the litigation faded away. 

There are both substantive and procedural arguments that perhaps could have and should have been made in the current case by the ISPs. As the American courts are finally beginning to realize, mass law suits - especially when bittorent and other more complex technologies than old fashioned Napster era file sharing technologies are involved - present some very complicated legal and factual issues and should not be allowed to proceed en masse without adequate scrutiny.  Indeed, when they are fought, they tend to stall and collapse. We have seen this not only in the USA but in England. And in some instances, mass copyright litigation campaigns have imploded very badly with considerable damage to the lawyers behind them, as bankrupt English lawyer Andrew Crossley is very well aware.

Quite apart from the substantive legal issues in these types of cases, there are usually real problems in identifying the right defendants. IP addresses - which are the basis for the orders to identify subscribers - do not necessarily lead to potential infringers. There are countless reports of this information leading, instead, to dead grandmothers, well meaning or perhaps just non-tech savvy ordinary people who share their wi-fi access, and - of course -  mostly to the bill paying parent(s) of ordinary families whose members include music fans and potential record company customers - such as the then 12 year old Brianna LaHara, who lived in subsidized housing in New York with her single mom and 9 year old brother and against whom  "The music industry has turned its big legal guns."

Here's how the apparent inspiration for the current Canadian litigation campaign has been playing out in the USA, according to CNN Money :

Nearly 50,000 users of BitTorrent's peer-to-peer downloading software have been targeted in a sting over the past few months, accused of illegally downloading one of two movies.

Voltage Pictures, the studio behind 2009's The Hurt Locker, is suing almost 25,000 BitTorrent users who allegedly illegally downloaded the flick. That came just weeks after 23,000 were sued for downloading The Expendables, produced by Nu Image.

Both of the lawsuits were filed in federal court in Washington, D.C., by the U.S. Copyright Group, an outfit formed by Washington-based law firm Dunlap, Grubb & Weaver. The group filed its Expendables lawsuit in February, then followed with its Hurt Locker lawsuit in April.

"They're copyright trolls," says Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, a digital rights organization. "They take a dragnet approach to litigation."

The Canadian BMG case was a world leader in establishing safeguards to ensure some accuracy in identification of potential defendants and to ensure that account holder information was not simply handed over en masse on demand. Without a safe firewall of protection and somebody to invoke it, there is a risk that Canadians will fall victim to American  style litigation campaigns where it is easier to hand over a few thousand dollars than to retain counsel and fight - even when there is a complete defence. The $5,000 proposed limit in Bill C-32 was insufficient to stop such campaigns because $5,000 is still a lot of money for most Canadian families. However, it is more than enough to sustain mass production line US style litigation.

The fact that this particular order was unopposed makes it unsurprising that it was issued. The adversarial system depends on the presence of adversaries. In this case, the potential defendants had no representation and were presumably unaware that their names were about to be divulged. 

The fact that no details about the cause of action are apparent in the order, and that it is not apparent what evidence was tendered will limit its importance as a legal precedent. However, that will be little comfort to the the first wave of Canadian casualties on this latest bombing campaign in the copyright wars against "weapons of mass distribution".

HK

rev. Sept 10, 2011

PS Sept 11, 2011


A recent dramatic development in the USA shows just how messy some mass litigation can become in that country.


According to Ars Technica, "A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission. "  Here's the ruling.


The Judge stated that:

To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to – even though he had already done so – and eventually dismissed the case ostensibly because the Court was taking too long to make a decision.10 All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions. (emphasis added).

An interesting aspect of this ruling is that the Court appointed three attorneys ad litem (the “Ad Litems”) to represent the Does. The "chutzpadik" attorney was ordered to pay their costs in bringing the motion for sanctions.


The subpoena process is very different in the USA than in Canada, where it is mercifully much less susceptible to misuse or abuse.


However, it may be worth considering that Federal Courts Rule 52 allows a Federal Court judge to appoint a neutral "assessor" in certain types of situations to provide impartial expert advice to the Court. If no ISP or other entity is prepared to look out for the potential John and Jane Does in these types of situations, at least with respect to assessing the sufficiency of the evidence for the production order, this procedure may be worth considering.


Indeed, the late Gordon F. Henderson specifically recommended the use of "assessors" in appropriate circumstances in IP cases. Historically, they had been used mainly in admiralty cases, but there is no inherent reason why their use should be so limited.  This is discussed at page 41 of his 1991 report entitled Intellectual Property Litigation, Legislation and Education. (I was privileged to have worked very closely with him on that prescient document).

Supreme Court to Hear Five (5) Copyright Cases in Two Days - December 6 and 7, 2011

The Supreme Court of Canada has, to the surprise of many, granted leave in the Re:Sound "Soundtracks" case. It will be heard with two cases involving fair dealing and two involving the communication right. It appears that all these cases will be heard in two days, namely December 6 and 7, 2011.

The only obvious things that all these five (5) cases have in common are these aspects:

• They all involve copyright;
• They all involve the "sempiternal question of the applicable standard of review"; and,
• They all come from the Copyright Board.

Until the last decade, the SCC has heard about one copyright case per decade.From 2002 to 2007, it heard several major copyright cases, namely Théberge, SOCAN v. CAIP,  CCH v., LSUC, Robertson v. Thomson, and Euro Excellence v. Kraft.The Bell ExpressVu decision and Desputeux also involved copyright.

It is now about to hear five (5) cases in two days, unless the schedule is somehow adjusted.

Here is the order today from the Supreme Court of Canada:

GRANTED WITH COSTS IN THE CAUSE / ACCORDÉE AVEC DÉPENS SUIVANT L’ISSUE DE LA CAUSE

Re: Sound v. Motion Picture Theatre Associations of Canada et al. (F.C.) (Civil) (By Leave) (34210)

(The application for leave to appeal is granted with costs in the cause.  This appeal is to be heard with Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, et al. (33800); Province of Alberta as represented by the Minister of Education, et al. v. Canadian Copyright Licensing Agency Operating as “Access Copyright”(33888); Entertainment Software Association, et al. v. Society of Composers, Authors and Music Publishers of Canada (33921) and Rogers Communications Inc., et al. v. Society of Composers, Authors and Music Publishers of Canada (33922).  The schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar. /

La demande d’autorisation d’appel est accordée avec dépens suivant l’issue de la cause.  Cet appel sera entendu avec Société canadienne des auteurs, compositeurs et éditeurs de musique c. Bell Canada, et autres (33800); Province d’Alberta, représentée par le ministre de l’Éducation, et autres c. Canadian Copyright Licensing Agency exerçant ses activités sous l’appellation de « Access Copyright » (33888); Association du logiciel de divertissement, et autres c. Société canadienne des auteurs, compositeurs et éditeurs de musique (33921) et Rogers Communications Inc., et autres c. Société canadienne des auteurs, compositeurs et éditeurs de musique (33922). L’échéancier pour la signification et le dépôt des documents et pour toute requête en intervention sera fixé par le registraire.)

Coram: McLachlin / Deschamps / Charron

Will Supreme Court hear Re:Sound's Appeal re Proposed Tariff re Movie Theatres and TV ?

The Supreme Court of Canada will rule this Thursday morning at 9:45 AM whether it will hear an appeal from the Federal Court of Appeal, which confirmed - as most copyright lawyers expected - that Re:Sound (formerly NRCC)  has no basis to pursue a tariff for the use of sound recordings in films  shown in theatres or on TV.

Here's what I said about this case back in February of 2011:

Re:Sound Proposed Tariff for Use of Soundtracks in Theatres & TV Nixed (Again)

Presumably, very few copyright lawyers will be surprised to learn that the Federal Court of Appeal has just decisively (three days after the hearing) dismissed the application for judicial review brought by the collective Re:Sound (formerly NRCC) in its attempt to impose tariffs when a published sound recording is part of the soundtrack that accompanies a motion picture that is performed in public (i.e. movie theatres) or a television program that is communicated to the public by telecommunication (i.e. on TV).

Re:Sound could not overcome the language of the Copyright Act which seems quite clearly intended to prevent this very result.

The definition of "sound recording" is as follows:

“sound recording” means a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work;
(emphasis added)

The Copyright Board had previously ruled that there was no basis under the Copyright Act to impose these tariffs.

Here's the Court's decision.  

Here's the Board's decision.


HK