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.

(highlight added)

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).

(highlight, bold, & underline added) 

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

Update re Blacklock’s Lengthy Litany of Losses: What Lies Ahead Following Justice Roy’s Lucid Decision about Licit Behaviour

On June 3, 2024 Barry Sookman promised via a Tweet that he would provide  a blog about the Federal Court’s Blacklock’s Reporter (“BR”)  decision of May 31, 2024 – which he said was “riddled with flaws”. On August 7, 2024 he followed up with this fulsome blog of some 17 pages in small print PDF. Readers who are connoisseurs of English language ambiguities and legal scholarship may wish to refresh their legal  linguistic lexicon by reminding themselves of the various meanings of “fulsome” and considering which one or more apply in this case.

Barry and I have appeared on opposite sides of the aisle in the Supreme Court of Canada twice. I was on the prevailing side both times.

I have lost interest in any extra-judicial or unmoderated social media or blog debate with him, after our “kerfuffle” from a dozen years ago where I, Ariel Katz,  and Bill Patry confronted him and his colleague Daniel Glover about how they “misstated” the state of American fair use law to the Supreme Court of Canada in the 2012 Alberta case, in which Barry, Daniel, Ariel & I were all  involved. Thankfully the Court wisely paid no attention in its reasons to that aspect of their submission and their side lost. I might also mention some battling blogs and live conference exchanges that Barry and I had back in 2014 concerning the Copyright Board’s waste of resources over its “unlocatable” owner mandate. Frankly, I don’t wish to engage in any sequel to those episodes. Accordingly, my comments now will be short and, hopefully, far from fulsome in any sense.

Barry’s argument is, overall, arguably a “straw man” argument.  He says:

You might think after reading the decision that

•        it decided or correctly decided that: a person can buy a single subscription to a news service and rely on fair dealing to copy and distribute articles to any interested readers to avoid paying for a bulk or organizational license and paying the usual price;
•        an online subscription service which makes reasonable efforts to bring online license terms to the attention of subscribers (including sophisticated subscribers) cannot enforce those terms unless the specific license terms are brought to the subscribers’ attention during the contracting process; fair dealing is a defense to the violation of the Copyright Act’s prohibition on circumventing TPMs;
•        fair dealing trumps the Act’s anti-circumvention prohibition; and
•        a person who buys a subscription to a news service can copy and distribute copies of articles along with passwords to enable others to unlock the articles without any person being liable for violating the Act’s legal protection of TPMs.

But, that is NOT what Justice Roy ruled. Here are some of the key extracts of what Justice Roy actually said in his decision:

[119] As a result, the issue must be circumscribed to the limited evidence brought forward by the parties. Hence, it has been established to the Court’s satisfaction that Parks Canada purchased the only type of subscription made available by Blacklock’s Reporter. That subscription gave Parks Canada access to a password which was used to gain access to some articles published by BR which concerned Parks Canada’s mandate and operations. The evidence does not establish if the sharing required to conduct the research undertaken by Parks Canada in its monitoring of articles was done by sharing the password, sharing copies of articles through e-mails or in paper format. There appears, however, to be common ground that there was some sharing of the password. The Court is satisfied that the use made of the articles accessed through the validly obtained password constituted, on the facts in this record, fair dealing according to section 29 of the Act. Fundamentally, Parks Canada did not circumvent what is presented as an effective TPM. It used the password licitly obtained for the purpose for which it was created: gaining access to articles located on a website. Once the articles were obtained, they were used in a manner consistent with recognized fair dealing.

[120] In fairness, BR was essentially reacting to the arguments put forth by CIPPIC. It remains, however, that its counter arguments were suffused with various concepts that were not defined or do not find support in our law. Thus, repeatedly BR referred to a “paywall” being circumvented. The paywall is equated with a TPM that is circumvented because the paywall is meant to “prevent access without an authorized username and a password” (Blacklock’s Reporter’s response to CIPPIC memorandum of fact and law, para 31; see also para 42). First, “paywall” is not defined. Second, it would appear doubtful that a paywall is strictly speaking a TPM, as stated at paragraph 31. That conflates the means and the end. Rather the TPM used is the means to the end, which may be a so-called “paywall” or something else. It is the technology, device or component created that results in a paywall. In other words, the TPM exists for a purpose, but it is only the means to satisfy a purpose that may be a paywall. It is the means that is not to be circumvented whether that be technology, device or component. Barnes J in the Department of Finance case said that “(t)he suggestion that Blacklock’s business model cannot survive in the face of the minor and discrete use that took place here is essentially an admission that the market places little value on Blacklock’s work-product … It also goes without saying that whatever business model Blacklock’s employs it is always subject to the fair dealing rights of third parties” (para 45). I certainly share that view. A paywall may be the result of some technology, device or component, but it is not the technology, device or component. The paywall is not the TPM. It protects against unauthorized intrusions and is part of a business model. That protection is not jeopardized by Parks Canada purchasing a subscription for the purpose of research constituting fair dealing. In the case at bar, there is no circumvention of a TPM simply because the password was not circumvented: it was properly obtained and used for a legitimate purpose.

[125] CIPPIC’s submissions were more fulsome. Fundamentally, it argues that the TPM provisions do not apply to restrain fair dealing; using a validly obtained password to access content is not circumvention. I agree. I would add nonetheless that how the password was obtained is significant as this may prevent a user from invoking the fair dealing provisions of the Act. Obtaining content by descrambling a signal or decrypting a communication may render invoking fair dealing very difficult to establish successfully. It is telling in my view that s 41.11(1) of the Act provides for an explicit exception for law enforcement and national security against liability for circumvention. But this is not the case before this Court. Our case is much more straightforward in my estimation and it is limited to a very narrow scenario.

JUDGMENT in T-1862-15

THIS COURT’S JUDGMENT is the following:

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.

(highlight and emphasis added)

BTW, BR got a big break with the costs order, based upon the Attorney General of Canada’s (“AGC’s”) lack of success on the relatively minor and non-essential issue of “rectification”, which was a small part of the case. When BR lost the earlier Finance case before Justice Barnes, it got nailed for costs of $65,000 in the Federal Court and $3,500 in the Federal Court of Appeal.

BTW, Barry refers several times to the 2016 decision of Justice Barnes in the Department of Finance case which Barry says was “wrongly decided” but which was NOT appealed – other than the very unsuccessful appeal on costs.  Barry also refers several times to BR’s one tiny victory – namely the Small Claims Court “Vintners” decision. But, as any law student should know, small claims court decisions have ZERO precedential value in the Federal Court. Barry also refers to the notorious Nintendo decision, which was cut and pasted from the Plaintiff’s memorandum when the law firm representing the Defendant (the same one now acting for Blacklock’s) settled the case and did not, although entitled, reply and make final written submissions. Indeed, the Respondent’s counsel did not appear for the final oral argument.

Followers of Federal Court decisions will know that Justice Roy is very thorough, very decisive, and very solid in his rulings. Believe me, I know – having been counsel on the losing end of one of them. This one took him almost a year – which means he was exceptionally careful and deliberate. If any of it can be accurately characterized as “obiter dicta”,  so be it. Carefully crafted obiter dicta can be very instructive to careful and conscientious counsel and their clients and should not be ignored, especially in important and closely watched cases.

Anyway, I have blogged fulsomely about BR over the years. But don’t take only my word about the latest decision in its litany of losses. Here are some other takes from notable sources about Justice Roy’s BR ruling:

•        Bereskin & Parr
•        Fasken
•        Lenzner Slaght
•        Markwell Law
•        Hugh Stephens
•        Michael Geist

What lies ahead? BTW, Justice Roy refers many times to the lack of adequate evidence from BR about the technological aspects of its case re TPMs. Needless to say, it is far too late in the day to fill that gap.

We shall get some clue on August 19, 2024 when BR will “provide the Court with a status update regarding a possible appeal of the said Judgment, as well as any discontinuances to be filed." Just why BR agreed to do this by August 19, 2024 is unclear, since its deadline to actually file a Notice of Appeal from Justice Roy’s judgment isn’t until September 3, 2024 by my calculation.

FWIW, I would frankly be surprised, but not shocked, if BR actually does appeal. As I have  said, it refrained from appealing the substantive aspect of Justice Barnes very important decision and instead only appealed – and very unsuccessfully – the costs order.

An unsuccessful trip to the Federal Court of Appeal (“FCA”) could be very costly in terms of  legal costs to BR’s lawyer and to a lesser extent to the AGC.

Above all, an unsuccessful appeal would reinforce Justice Roy’s decision, which nobody, as far as I know, except Blacklock’s and Barry have suggested is wrong in any reviewable way. It must be remembered that, in any appeal here, fact finding will be reviewed only for “palpable and overriding errors” and extricable or self standing rulings on the law will be reviewed for correctness. See Housen v. Nickolaisen 2002 SCC 33. Obiter dicta is not reviewable. If BR decides to appeal to the FCA and loses, it’s very hard to conceive of why the Supreme Court of Canada would grant leave to appeal in this case. And if it gets that far and the Supreme Court actually does take the case, there’s an old adage about “be careful what you wish for…”

In any event, stay tuned. We may know more after August 19, 2024.

HPK

PS: August 22, 2024 

Blacklock's counsel advised the Court on August 13, 2024 that:

In accordance with the Direction of the Court dated July 29, 2024, Blacklock’s can advise that it will be filing an appeal of the May 31, 2024 Judgment of the Honourable Justice Roy in the Parks Canada action (T-1862-15). As such, Blacklock’s position is it is pre-mature to file any discontinuances at this time. 

This appears to have been posted only on August 19, 2024. 

Potential interveners, as well as several government departments and agencies that have related matters pending, may be interested. The deadline for Blacklock's to file its Notice of Appeal appears to be September 3, 2024.

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.)

 

Blacklock’s Day of Reckoning?

 

(Blacklocks.ca)

For over nine years, Blacklock’s has pursued a remarkably determined litigation strategy that has involved nearly two dozen Federal Court lawsuits, including 13 against the Federal Government and its agencies. Its efforts against the Federal Government have been notably unsuccessful and none of its efforts against other parties have resulted in any successful legal precedents from Blacklock’s standpoint. On June 7-9, 2023, the Federal Court heard a summary judgment motion brought by the Government with a public interest intervention by CIPPIC that could bring this litany of litigation to the end.  The motion was heard by Justice Yvan Roy, a very thorough and experienced judge. and his decision is pending.

I’ve written about Blacklock’s litigation many times before. See here. I don’t normally comment on cases where judgment is pending – but this is an exception that calls out for comment because of its public interest importance and its unique long history.

The Attorney General of Canada (“AGC”) was represented by its counsel, Alexander Gay. Blacklock’s was represented by Scott Miller of MBM.  The intervener on behalf of the public interest was CIPPIC, represented by James Plotkin of Gowlings. These are all very experienced counsel.

Here are some brief point form observations based on the written material in the case. I did not actually attend the hearing, which was held “live” and was not virtual or hybrid, so it was not available via Zoom:

• A very important case – as shown by the unusually great role of intervener CIPPIC in terms of length of memo (20 pages) and time – and hour and then extended. Indeed, having resisted CIPPIC’s involvement, Blacklock’s ultimately engaged – with an 18-page response of CIPPIC’s important public interest submissions
• No hacking or decrypting involved here
• No evidence of any attempt to “descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure” (highlight added)
• The law does NOT clearly cover simple sharing of a simple password in the definition of “circumvent” found in s. 41
• No mention in legislation of the word or concept of “to share”
• Just sharing of simple lawfully acquired password by a government worker so she could do her research job and collaborate with colleagues
• No evidence of actual copyright infringement or other listed examples of circumvention
• No expert evidence that the TPM was “effective”
• Like sharing a hotel pass key with family members - or alarm system password with renovation contractors or cleaning staff, who then shares it with their employees or subcontractors?
• Even if there somehow was “circumvention” in this case, is it trumped by any absence of evidence of infringing reproduction or, very importantly, trumped by “fair dealing”?
• No piracy – this is not about getting free movies or music – it’s about government engaging in perfectly legal fair dealing…

In any case, there is an important previous ruling in 2016 that Government’s use of Blacklock material was clearly “fair dealing. There was a strong finding of fair dealing on the part of Government that public servants were just doing their research as allowed by the Copyright Act….

1395804 Ontario Ltd. v. Canada (Attorney General), 2016 FC 1255 (CanLII), [2017] 2 FCR 256, <https://canlii.ca/t/gvrbx>

[33]      I am satisfied that the Department’s acknowledged use of the two Blacklock’s articles constituted fair dealing. There is no question that the circulation of this news copy within the Department was done for a proper research purpose. There is also no question that the admitted scope of use was, in the circumstances, fair.

Blacklock’s could have, should have, but didn’t plead circumvention at the time and are now trying with a new counsel to do so in numerous lawsuits against 13 other Federal Government departments and agencies and presumably many others.

BTW, here is the applicable definition of “circumvent”:

circumvent means,

(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner…(highlight added)

There is great interest in this case and the outcome is eagerly awaited.

HPK

CIPPIC Rebuffs Blacklock’s Bid to Block Intervention in Summary Judgment Motion

www.blacklocks.ca

Blacklock’s has a lengthy list of losses in its long litany of litigation against the federal government and many of its agencies. I have blogged about this many times.

It will be recalled that Blacklock’s lost decisively on fair dealing back in its first test case against Finance Canada in a judgment dated November 10, 2016 that was not appealed.  Blacklock’s had, for whatever reason, not pleaded anything about Technical Protections Measure (TPM) circumvention, so there was no ruling on that issue. It has attempted to refloat its definitive defeat on fair dealing via new claims in numerous proceedings based on alleged TPM circumvention.  As I have reported, Blacklock’s was unable to stop the Attorney General’s summary judgment motion that may well finally end this this litigation saga.

Blacklock’s latest loss is its unsuccessful attempt to stop CIPPIC from intervening in the summary judgment proceeding. As most readers well know, CIPPIC has a long list of interventions in the public interest. I was and still remain proud to have been CIPPIC’s outside and lead counsel in its first and very influential intervention which was in the BMG v Doe case back in 2004-2005. See here in the Federal Court and here in the FCA. This was the beginning of mass copyright litigation in Canada. The reasoning in these judgments has helped keep Canada relatively free so far from the outrageous excesses we have sometimes seen in the mass trolling cases in the USA. Here’s a pair of complementary articles that I and opposing counsel wrote back in the day in  2005 when such civilized controversies, confrontations, and collaborations on commentaries were still possible.

Since then, CIPPIC has been involved with many interventions in copyright and other cases – including in the SCC.

Flash forward to 2021-2022. Blacklock’s fiercely resisted CIPPIC’s motion to intervene in the summary judgment motion on the basis that:

“…CIPPIC has no “legitimate” interest in the outcome of the proceeding, that the scope of its proposed intervention does not differ from that of the AGC; that it is not in the interest of justice to allow the proposed intervention because BR will suffer prejudice as a result of CIPPIC’s “perceived bias” and “apparent vendetta” against it, and that it will result in an “inequality of arms” and unduly complicate this already protracted litigation”

and that Blacklock’s:

‘…will be prejudiced because CIPPIC is “motivated by bias”, that its Executive Director and General Counsel has a “vendetta” against BR, and is on a “crusade” as a result of past litigation before the Federal Court and the Ontario courts, and that “[his] position and influence over CIPPIC negates any possibility of fairness”’

(highlight added)

Unsurprisingly, the Case Management Judge Sylvie M. Molgat rejected these very surprising and unusual allegations. The result is that CIPPIC will be now be permitted to file a 20 page Memorandum of Fact and Law. The Supreme Court of Canada now allows interveners only 10 pages, so this is significant. CIPPIC will also be permitted to make present oral submissions, for such duration as may be determined by the hearing judge.

Here is CMJ Molgat’s Order, dated January 21, 2022, which is unusually detailed for such an order. Readers should note that interventions are rare in the Federal Court.

Here is CIPPIC’s motion to intervene – which provides a preview of what we may expect to see and hear. CIPPIC will be represented by James Plotkin who has just recently joined Gowling WLG.

I’ll post updates as this moves forward. The motion will be worth watching for sure.

 HPK

 

Never Say “Never on a Sunday”. Has Blacklock’s Bottomed Out with Another Black Eye – Yet Again?

(Here's the famous "Never on a Sunday" chorus of the Connie Francis classic)

Blacklock's protracted attempt to stop summary judgment proceedings that it had long ago agreed to has resulted in yet another black eye in its long losing litany of litigation.

 Let me repeat myself from my recent blog wherein I repeat my quotation from the Attorney General of Canada (“AGC”) submissions:

 OVERVIEW

1.            This is a bold move by the Plaintiff to set aside a discretionary Order of the Case Management Judge Molgat and avoid a motion for summary judgment which it has been trying to avoid for almost two years. There is no basis in fact or law to set the Order aside. The motion must be heard.

2.            On April 4, 2019, the Attorney General of Canada (AGC) proposed a motion for summary judgment in respect of the Technological Protective Measures (TPM) claims contained in the Parks Canada action at a Case Management Conference (CMC). The TPM claims are the only remaining dispute between the Plaintiff and the AGC, given that Justice Barnes had already concluded that the institutional use of the articles published by the Plaintiff constitute a “fair dealing” under the Copyright Act. The results of the proposed motion would dispose of fourteen actions that are before the Federal Court. An agreement was reached by all counsel at the CMC. With the exception of the Plaintiff, everyone in attendance at the CMC, including the Case Management Judge, had a clear understanding on what was agreed to.

3.            Upon being advised that the AGC would be leading evidence in the motion for summary judgment, a matter clearly provided for under the Federal Court Rules, the Plaintiff reneged on the agreement and spent the next two years trying to derail the motion for summary judgment. As explained in this factum, the conduct of counsel for the Plaintiff has been contemptuous of the Court, and include such things as the disregard of numerous Court Directions.

4.            After two years of resisting and after it was clear that the Plaintiff could no longer avoid the motion, the Plaintiff gave notice that it would discontinue the action. The surprise announcement came at a CMC in July 2021, after the Plaintiff was ordered to comply with the Directions of the Court. However, the Plaintiff did not file the Notice of Discontinuance immediately. The AGC used the delay to serve and file a Counterclaim and it renewed the motion for summary judgment under this new pleading, the very motion that the Plaintiff had been resisting. The Case Management Judge allowed the Counterclaim and directed the parties the set dates for the hearing of the motion. The Plaintiff now appeals from that Order.

5.            The AGC contends that the Order of the Case Management Judge was appropriate and necessary. There are no errors of law, mixed fact and law or fact. The motion will dispose of the remaining thirteen actions and, more specifically, it will dispose of all TPM claims before the Court, even in the Related Actions. The order of the Case Management Judge is in keeping with Rules 55 and 385, which allow her to make decisions that allow for the most expeditious means of adjudicating the claims that are before this Court.

6.            The AGC requests that the appeal be dismissed, with costs.

Blacklock's announced during as per para. 4 above on a Friday that it would discontinue its Parks Canada action, which is one of its long litany of more than a dozen cases against the Federal Government and several of its agencies.

However, for whatever reason, it did not immediately file its discontinuance. So, over the ensuing  weekend, the Attorney General of Canada ("AGC") amended its pleading and, with considerable ingenuity and professional dedication, served on a Sunday a counterclaim on Blacklock's by email, the receipt which Blacklock's lawyer acknowledged.

Blacklock's didn't actually play its discontinuance card until first thing the following Monday morning - but the AGC's amended pleading and counterclaim were already there. 

Despite Blacklock’s enormous efforts, the Case Management Judge ruled that the AGC’s amended pleading and counterclaim was validly filed – on a Sunday – and ahead of time of Blacklock’s belated discontinuance.

So - more than a year later and after an enormous motion record from Blacklock's the Court has ruled in favour of the AGC. See the Judge’s ruling on Blacklock’s unsuccessful appeal attached here, which for some reason has not yet been posted on the Federal  Court’s website but which is a public and precedential document.

Although Blacklock's could theoretically appeal this Judge’s order, success would frankly seem very unlikely. Any Federal Court lawyer will understand the standard of review and other obstacles that Blacklock’s would face.

There's some important procedural lessons in this case for Federal Court procedural nerds. Most notably that “Never on a Sunday” may be a great song for Boomers but it doesn’t apply in the Federal Court. Service on a Sunday may very well be good service – both legally and, in this case, for the taxpayer.

The real lesson is “Never Say ‘Never On Sunday’”….

More importantly, it looks like the AGC can now get to proceed to dispose of Blacklock's belated TPM argument by way of a summary judgment that could effectively bring an end to the long litany of losses by Blacklock’s in the Federal Court.

 It will be recalled that Blacklock's lost badly in its first Federal Court trial on the issue of fair dealing nearly five years ago  - and got nowhere on the issue of TPMs because the issue had not been pleaded. Somehow, Blacklock's was able resurrect the TPM issue in subsequent proceedings - but this would seem to be a long shot and fair dealing will continue to loom large. CIPPIC may become involved when this matter moves forward substantively.

It's hard to understand how Blacklock's sustains its business model and funds its long list of losses in the Federal Court. It must be admitted that Blacklock's is nothing if not tirelessly – some might say tediously – tenacious.

However, the end of all of this may now be in sight - to the relief of taxpayers and very likely most informed copyright lawyers from coast to coast.

 HPK

 PS - Justice McDonald's ruling of August 25, 2021 is now officially posted here: 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2021 FC 872 (CanLII) <https://canlii.ca/t/jjblk>

Blacklock’s Attempt to Block Resolution of Its Litany of Litigation

(Wikimedia)

Blacklock’s is trying to block the efforts of the Attorney General of Canada (“AGC”) to seek via a counterclaim a summary judgment ruling that might end the seemingly endless litigation attempts by Blacklock’s going back to about 2014 and its attempt to refloat its definitive defeat on fair dealing via a new claim based on Technical Protections Measures (“TPM”).

There is an important motion brought by Blacklock's pending in the Federal Court returnable August 10, 2021. Anyone interested in watching should seek permission at least two days in advance here:

[email protected]

 The file  is:

• T-1862-15 - 1395804 Ontario Ltd. v. The Attorney General of Canada

The AGC is attempting to proceed with a summary judgment motion that could potentially resolve all of the litany of cases against the AGC and various federal agencies promptly and efficiently. Here’s a link to the AGC’s motion record material, which is concise and readable. I won’t post Blacklock’s motion material because it is extraordinarily lengthy at 1,298 pages and 25,914 KB. I’m always happy, in the public interest, to post public domain material or material for the purpose of fair dealing without a paywall. But in this case, it’s just too cumbersome. Blacklock’s itself is, of course, free to post some or all of it. Maybe it will even do so without a paywall.

I have blogged several times before about Blacklock’s “tendentious and tenacious litany of litigation" here and elsewhere on my blog.

BTW, CIPPIC is attempting to intervene in the substantive motion for summary judgment, once it moves forward.

Here, in the AGC’s own words, is the Overview of the AGC’s response. The highlighting and emphasis is mine. The AGC’s submissions have not yet been ruled upon – but presumably will be on or after August 10, 2021.

OVERVIEW

1.            This is a bold move by the Plaintiff to set aside a discretionary Order of the Case Management Judge Molgat and avoid a motion for summary judgment which it has been trying to avoid for almost two years. There is no basis in fact or law to set the Order aside. The motion must be heard.

2.            On April 4, 2019, the Attorney General of Canada (AGC) proposed a motion for summary judgment in respect of the Technological Protective Measures (TPM) claims contained in the Parks Canada action at a Case Management Conference (CMC). The TPM claims are the only remaining dispute between the Plaintiff and the AGC, given that Justice Barnes had already concluded that the institutional use of the articles published by the Plaintiff constitute a “fair dealing” under the Copyright Act. The results of the proposed motion would dispose of fourteen actions that are before the Federal Court. An agreement was reached by all counsel at the CMC. With the exception of the Plaintiff, everyone in attendance at the CMC, including the Case Management Judge, had a clear understanding on what was agreed to.

3.            Upon being advised that the AGC would be leading evidence in the motion for summary judgment, a matter clearly provided for under the Federal Court Rules, the Plaintiff reneged on the agreement and spent the next two years trying to derail the motion for summary judgment. As explained in this factum, the conduct of counsel for the Plaintiff has been contemptuous of the Court, and include such things as the disregard of numerous Court Directions.

4.            After two years of resisting and after it was clear that the Plaintiff could no longer avoid the motion, the Plaintiff gave notice that it would discontinue the action. The surprise announcement came at a CMC in July 2021, after the Plaintiff was ordered to comply with the Directions of the Court. However, the Plaintiff did not file the Notice of Discontinuance immediately. The AGC used the delay to serve and file a Counterclaim and it renewed the motion for summary judgment under this new pleading, the very motion that the Plaintiff had been resisting. The Case Management Judge allowed the Counterclaim and directed the parties the set dates for the hearing of the motion. The Plaintiff now appeals from that Order.

5.            The AGC contends that the Order of the Case Management Judge was appropriate and necessary. There are no errors of law, mixed fact and law or fact. The motion will dispose of the remaining thirteen actions and, more specifically, it will dispose of all TPM claims before the Court, even in the Related Actions. The order of the Case Management Judge is in keeping with Rules 55 and 385, which allow her to make decisions that allow for the most expeditious means of adjudicating the claims that are before this Court.

6.            The AGC requests that the appeal be dismissed, with costs.

Be sure to tune in on August 14, 2021. The one good thing about COVID is that the Courts are now more accessible than ever. This is one to watch.

 HPK

Update: August 26, 2021 

From the Federal Court Docket August 25, 2021:

Reasons for Order and Order dated 25-AUG-2021 rendered by The Honourable Madam Justice McDonald Matter considered with personal appearance The Court's decision is with regard to Motion Doc. No. 52 Result: THIS COURT ORDERS that this Appeal Motion is dismissed with costs in the all-inclusive amount of $1,000.00 to the Attorney General of Canada. Filed on 25-AUG-2021 copies sent to parties Final Decision Certificate of Order entered in J. & O. Book, volume 1505 page(s) 481 - 481

So, Blacklock's failed in its effort to stop the AGC's counterclaim for summary judgment. I will blog about this shortly.