Fictional, Fulsome, and/or False Fulminations Of And About Blacklock’s

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 from 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;

• Bereskin & Parr
• Fasken
• Lenzner Slaght
• Markwell Law
• Oyen Wiggs
• Michael Geist

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?

 ***

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.

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.)