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?

 ***

Blacklock’s Back in Court on May 2, 2017 – How Long will this Litany of Litigation Last?

On Tuesday, May 2, 2017, the Blacklock’s case is back in Court at 9:30 AM in Room 702 at 90 Sparks St. in Ottawa for a case management hearing, where lengthy motion, cross motion and response records and oral submissions will be considered by Prothonotary Tabib. There will likely be a host of counsel representing Blacklock’s and many of the 11 Government of Canada departments and agencies that Blacklock’s has sued. Canadian taxpayers are no doubt going to pay a lot to monitor and participate, even passively, in this “litany of litigation” even while the Attorney General of Canada (“AGC”) takes the lead for the Government. The departments and agencies that have retained counsel other than the AGC are generally using large law firms.

It will be recalled that Blacklock’s badly lost its first test case against Finance Canada in a judgment dated November 10, 2016 that was not appealed. Then, on December 21, 2017 Justice Barnes awarded the Government $65,000 in costs, which was conceivably much less than might have awarded in all the circumstances. Blacklock’s has appealed this award, even though appeals of cost awards are very rarely successful.  In his reasons for the costs award, the learned Judge’ commented that:

[7] …I also reject the Plaintiff's argument that this case raised "strong public interest considerations". Rather, this case was about the Plaintiff's attempt to recover disproportionate damages without any apparent consideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada.

[8] Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department's limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.

(highlight and emphasis added)

This could suggest that future losses by Blacklock’s could result in even higher costs awards against it.

In a nutshell, Blacklock’s wants to go forward with one particular case against the Attorney General of Canada (“AGC”), namely that against Health Canada and one against one of the non-AG Government of Canada agencies, i.e. Bank of Canada, Canadian Transportation Agency of the Library of Parliament. It’s rather unusual for a plaintiff to file and then seek to stay almost all of its own cases – but virtually everything about this litigation has been unusual. Here are Part 1, Part 2 and Part 3 of Blacklock’s Motion Record dated March 21, 2017.

The Government and the other agencies and departments want to ahead with one of the actions on a summary judgment basis because it is said to be indistinguishable on the facts from the previous Finance case, which Blacklock’s lost badly and did not appeal. More interestingly, The Government Respondents want to get a preliminary determination on two threshold questions which potentially affect and, indeed, could effectively bring to an end all the cases, namely:

•            Whether Blacklock’s even has standing to sue, in light of chain of title and retroactive assignment issues involving the articles alleged to have been infringed
•       Whether Blacklock’s’ can expect to recover sufficient actual or statutory minimum damages, should it so elect, in an amount sufficient to justify any of this “litany of litigation”.  As I have previously pointed out, there is a limit of $5,000 on statutory minimum damages where the activity is for “non-commercial purposes”. I have also previously mentioned the cautionary tale of Catherine Leuthold, who had hoped to collect $22 million from the CBC, but recovered only $19,200 and was ordered to pay about $80,000 in costs.

Here is the Cross Motion Record of the AGC dated April 4, 2017. Finally, here is Blacklock’s Response to the AGC’s Cross Motion dated April 18, 2018.

An interesting sidebar has begun to emerge prominently from this mass of material and concerns two individuals, namely Nick Fillmore and Mark Taliano. I have previously posted the pleadings in Blacklock’s Ontario Superior Court case against them. See the Statement of Claim against Fillmore and Taliano here  and the Statement of Defence here. The AGC included in its Motion Record dated April 4, 2017 a short Affidavit from Mr. Nick Fillmore (highlight added) in which he explains why he and Mr. Taliano, as individuals, agreed on December 16, 2016 to pay Blacklock’s a total of $21,750 within 60 days. He also noted that they had incurred legal and mediation fees of about $8,000.

This was apparently included and referred to by the AGC to make the point, inter alia, that “The Court has found that Blacklock’s claims disproportionate damages, and that other institutions have settled for business reasons”. The AGC notes  that “a community organization made up of volunteer retirees  was forced to settle because its members could not afford to pay the substantial legal fees required to defend themselves against Blacklock’s” and suggests that that the Court should “strive for proportional procedures that will achieve a just result”.

Interestingly, about a week after the AGC’s motion record was served, Blacklock’s published on April 11, 2017 one of its few unlocked articles entitled $22K Copyright Settlement By Canadian Facebook Bloggers. It begins by stating that:

A bootleg news aggregator has settled a $21,750 copyright claim after republishing articles on a Facebook blog, the largest known settlement of its kind in Canada. The defendants’ lawyer was Professor David Fewer, director of the University of Ottawa’s Canadian Internet Policy & Public Interest Clinic. [CIPPIC]

Blacklock’s Reporter in 2015 sued the blog operators for $20,000 as well as punitive damages and costs for republishing dozens of password-protected articles. In an unusual settlement, the aggregator One Big Campaign paid $21,750, volunteered a public apology and waived all confidentiality of settlement terms.

Actually, as I noted earlier  when first mentioning this particular lawsuit, Mr. Fewer was acting “not in his capacity as Director of CIPPIC, but rather in his personal capacity”. Blacklock’s also labels Mr. Fewer as “a copyright adviser to the Department of Justice”, which I understand not to be the case.  

It’s interesting that Fillmore and Taliano were not represented by CIPPIC itself, and therefore had to pay Mr. Fewer’s legal bill. Mr. Fillmore states in his affidavit that “we feared that, even if we won, our expenses might run as high as $40,000 or $50,000”. This suggests that they were expecting a very much higher legal bill at the end of the day, even if they won. Presumably, if CIPPIC had represented them, they would not have had to pay their own legal costs. CIPPIC’s mission is stated to be:

CIPPIC has a dual mission:

·         to fill voids in public policy debates on technology law issues, ensure balance in policy and law-making processes, and provide legal assistance to under-represented organizations and individuals on matters involving the intersection of law and technology; and

·         to provide a high quality and rewarding clinical legal education experience to students of law.

(highlight added)

Inexplicably, Blacklock’s seems to focus attention in its article on Mr. Fewer, and even includes an enlarged picture of his signature at the top of the article.

Blacklock’s also suggests that Fillmore and Taliano “rejected a $5,000 settlement offer from Blacklock’s”, which is apparently contradicted by Mr. Fillmore’s affidavit – upon which Blacklock’s has chosen not to cross-examine. Indeed, Mr. Filmore swears that he and Mr. Taliano offered to pay $5,000, which Blacklock’s “declined”. Blacklock’s makes a number of other contentious assertions in the article, and fails to note that its assertions have not been tested in Court. In its response dated April 18, 2017, Blacklock’s is attempting to put a lot of additional evidence concerning Messrs. Fillmore and Taliano on the record through an assistant’s affidavit, and, as noted, has chosen not to cross-examine Mr. Fillmore.

Without in any way commenting on the substance of the Fillmore and Taliano settlement, there are some aspects to this situation that would clearly seem to invite interest. In any event, the AGC and Blacklock’s have both pushed this issue into the limelight.

The amount of the settlement, $21,750, is more than the amount sought in the lawsuit, which in the case was $20,000 (forget about the demand for “punitive” damages). We do not necessarily know all that happened in this case. The Ontario Superior Court, unlike the Federal Court, does not provide an online docket, which usually gives some idea of what it happening in a case. I have asked Mr. Fewer to call me about this case, but he has not done so. In any event, he would presumably by constrained to some extent by solicitor-client privilege.

The settlement comes after Blacklock’s resounding loss in the Federal Court on November 10, 2016 and after the appeal period had passed. Not only was there a very favourable and detailed ruling in place from a very experienced Judge. The Government had left a legacy of applicable case law and material on the public record that was available to any other litigants.

Settlements of litigation are usually confidential. However, in this instance, it appears that Fillmore and Taliano felt compelled to not only let Blacklock’s exploit their unhappy result in public but, indeed, to agree to publicly apologize. Their Facebook page now appears to be dead in the water. On December 20, 2016, the Facebook page “Campaign to Build One Big Campaign’ posted an apology and a notice that “This site is now closed”. Ironically, the “unusually trenchant costs award” against Blacklock’s in Federal Court came out the very next day.

I have no idea what the merits or lack thereof of the lawsuit against Fillmore and Taliano may have been and will not speculate because nothing has been proven in Court. Second-guessing in this case about the lawsuit or the settlement could be inappropriate and inaccurate, and I am not doing so.  Messrs. Fillmore and Taliano had experienced counsel. However, it is worth recalling that, if the activity involved was for “non-commercial purposes”, the maximum amount of statutory minimum damages would arguably have been $5,000 – unless Blacklock’s could have somehow proven more in actual damages, which would have been extremely unlikely. Nonetheless, according to Fillmore’s affidavit which has not been cross-examined upon, he and Taliano – for whatever reason – felt “seriously intimidated” and settled for more than four times this amount.

What is interesting about this Fillmore and Taliano sidebar is the apparently disproportionate and defensive attention given to it by Blacklock’s. Perhaps more will become apparent on May 2, 2017.

Overall, this case has elicited much attention. On the one hand, Blacklock’s is arguably attempting overall to build a business model based, in effect, on a legally non-existent ability to control the “right to read” and to make this a test case for the future of journalism, even though Blacklock’s cannot readily be compared to the Globe and Mail, the Toronto Star, the New York Times of The Economist or any other readily apparent established and successful journalism model. Perhaps its closet analog is the Hill Times, which is a very successful Ottawa family owned publication with a much friendlier business model that has operated with great success for almost three decades.  A much-valued feature of its business model includes the ability to buy a single story issue in electronic form for $5.00. This is in sharp contrast to Blacklock’s business model. To the best of my knowledge, the Hill Times has never sued anyone. Indeed, the Hill Times business model seem to depend on quality, value and the very considerable goodwill of its customers, which would seem to be very similar to the same Ottawa government and NGO base that Blacklock’s is so busy suing.

Justice Barnes’ stern words in his costs award should be recalled:

[9]    I am also troubled by Plaintiff’s attempt to claim an excessive amount of damages beginning with its demand for compensation completely divorced from the Department’s limited use of the two articles. In no circumstances would Blacklock’s losses have exceeded the cost of individual subscriptions by the six officials who read the articles; yet Blacklock’s demanded a license fee equivalent to its bulk subscription rate of over $17,000.00.  This practice appears to be consistent with Blacklock’s usual approach which is to hunt down, by Access to Information requests, alleged infringers and then demand compensation based on an unwarranted and self-serving assertion of indiscriminate and wide-spread infringement. The record discloses that in several instances government departments acquiesced for business reasons and paid the full amounts demanded. In this instance the Department appropriately took a hard line and succeeded in its defence.

(highlight added)

HPK

PS - May 2, 2017

Case management conference adjourned to May 12, 2017. Court looking for solution on consent in #Blacklock’s unique "litany of litigation".

HPK

The Blacklock's Hearing - Monday, September 19, 2016 In Ottawa

The hearing in Blacklock's v Attorney General of Canada will take place on Monday, September 19, 2016  at 9:30 AM in the Competition Tribunal hearing room at 90 Sparks St., Ottawa, 6th floor.

The presiding Judge will be  The Honourable Robert L. Barnes.

Here is the searchable Agreed Statement of Facts.

Here's my recent update by way of background.

The hearing is scheduled for five days.

HPK

Further Update on the Blacklock’s “Litany of Litigation” - First Trial Set For September 19, 2016

It is been a while since I’ve updated readers on the “litany of litigation” launched by Blacklock’s. What follows is an update of my earlier postings. See here and here.

Blacklock’s is the very  litigious and controversial “subscription based news Corporation that covers politics, bills and regulations, reports and committees, as well as the Federal Court and Public accounts in Canada”, according to the reasons for judgment dated June 27, 2016 of Justice Denis Gascon in a recent Federal Court ruling dismissing an appeal by Blacklock’s of earlier orders staying all but one of the 10 cases launched in that Court against various federal departments and agencies. One action, (the “Finance Action”) which is the most advanced, will proceed with a trial beginning on Monday, September 19, 2016 for five days here in Ottawa. I’m guessing it will be well attended and I hope that the Court schedules it in a large enough room.  The other nine cases will be stayed “until 45 days following the determination of the Finance Action”.

Justice Gascon’s ruling states:

 [8]   Blacklock alleges that the Defendants have unlawfully distributed its articles within their respective departments or agencies and have breached its copyright after having obtained the articles by way of single-use subscriptions or through third-party sources. According to the Defendants, Blacklock employs a pattern of writing misleading or inaccurate articles about an organization with the expectation that these articles would be accessed and shared internally. Blacklock then makes Access to Information Act requests for evidence of distribution, and claims damages through various means, including litigation.

As they say, none of these allegations have been proven in court.

It is certainly not obvious from a practical or costs standpoint why Blacklock’s would have wanted separate trials on 10 cases against the Federal entities. Alternatively, Blacklock’s wanted to:

"allow all actions to proceed until the pre-trial conference, and only then to consider how to manage the trials."

Perhaps Blacklock’s wanted to pursue each case separately in order to send a message to current and potential defendants that it is serious about litigating and that it expects substantial settlements in order to forestall or stop the litigation. However, that is only my speculation.

Here are Blacklock’s arguments on the appeal of the stay ruling. Here are the arguments of the Attorney General of Canada (“AGC”).

The damage claims in each case are relatively modest as these things go, “ranging from $10,000 to $55,000 when they are specified”. Justice Gascon noted that:

[11]           In her decisions, Prothonotary Tabib acknowledged that the facts of each case are different as both the alleged copyrighted materials and the specific alleged acts of infringement are distinct to each case. However, she stressed that “commonality and similarities” reside in the defences raised in the ten actions. These common defences are: whether Blacklock owns the copyright in the articles alleged to have been infringed; the novel defence of abuse of copyright; the defence of fair dealing when articles are copied/used for internal government reporting purposes; the proper assessment of damages (whether they be loss of profit apportioned per article or the value of an institutional licence); and the availability of punitive damages. Prothonotary Tabib also noted that the amounts claimed in the actions filed by Blacklock are modest, ranging from $10,000 to $55,000 when they are specified. 

From Blacklock’s standpoint, the cost consequences of losing or even winning these cases could conceivably far exceed the upside of winning, given the way the Federal Courts costs rules can work with strategic and timely settlement offers where only modest amounts of money are recovered or recoverable. The most obvious cautionary tale is that of Catherine Leuthold, who sued the CBC for more than $22 million but recovered only US $19,200 damages and $168.74 by way of disgorgement of profits.  While she technically “won” her lawsuit, she was ordered to pay the CBC some $80,000 in costs, which included double costs pursuant to Rule 420, due to her refusal to accept a timely settlement offer of US $ 37,500. The costs order was upheld on appeal.  Needless to say, I have no knowledge of whatever settlement offers may or may not have been made by any party in the Blacklock’s litigation. Even the trial judge will not know about any such offer(s), if they exist, before he or she delivers judgment and will only know afterwards if double costs pursuant to Rule 420 become an issue to be determined by the Trial Judge pursuant to the Rules.  However, all experienced Federal Court litigators are aware of these costs rules. Presumably, the calculations have been done and the bets have been placed, so to speak.

Moreover, Blacklock’s has already faced some significant costs consequences. It lost at first instance with costs payable to each defendant in ten different actions on its efforts to oppose the Government’s stay motion and proceed with separate trials for all ten federal cases, and lost the appeal of Prothonotary Tabib’s ruling of March 3, 2016 before Justice Gascon as noted above. This has resulted in some fairly harsh costs awards as far as these things go against Blacklock’s to date. See here for Justice Gascon’s costs award from August 16,  of 2006 which calls for costs of $10,500 payable within 30 days of the Order and here’s the Court’s Order dated October 26, 2015 which awarded  costs to  the Government of $4,000.  This Order indicates rather strong language and a very significant costs order as far as these things go. Here’s the Court’s Order dated October 26, 2015:

 The motion was contested, it was contested extensively and it took a lot of time. There was a need for cross-examination. In the course of the argument, I made comments to the effect that the Plaintiff’s argument and choice of the way in which it chose to understand questions or construed questions was obtuse to the point of being obstructive. 

Justice Gascon commented on the decision below from Prothonotary Tabib regarding the stay motion: 

[43] In her Orders, Prothonotary Tabib concluded that it was in the interests of justice to stay the Nine Actions given that 1) the issues raised by the various actions significantly overlapped, 2) a stay would avoid costly duplication of judicial and legal resources, 3) a real risk of contradictory decisions existed, 4) Blacklock would not suffer prejudice, and 5) proceeding with the ten actions would cause prejudice to the Defendants. I am of the view that each of these five considerations fall well within the discretion of Prothonotary Tabib and that none of them reflects a reliance on a wrong legal principle or a misapprehension of the facts in granting the stays of proceedings sought by the Defendants.
  [44] In fact, I am convinced that Prothonotary Tabib was right to take these factors into account in her assessment of the interest of justice at stake in this case and in ensuring the just, most expeditious and least expensive determination of the Nine Actions and the Finance Action.
  [45] First, I agree with the Defendants and Prothonotary Tabib that there is a significant overlap of issues and facts between the Nine Actions and the Finance Action, and that this was a proper consideration to retain. This overlap includes the ownership of copyright by Blacklock, the defences of copyright misuse and fair dealing, as well as the proper assessment of damages and the availability of punitive damages. Blacklock tries to distinguish the Finance Action from the other actions because the distributed articles were obtained from a third party and not through its subscription. However, the Finance Action concerns the same pattern of conduct and core issues as the other actions. In addition, the issue of copyright ownership in the Finance Action relates to the defence of abuse of copyright raised in all actions. Lastly, the assessment of Blacklock’s actual damages and availability of punitive damages is a recurring theme in all actions.
… 

[47] Second, Prothonotary Tabib was not clearly wrong in relying on the avoidance of costly duplication of judicial and legal resources in support of her decisions. The Orders considered the judicial resources that would be saved by the stay, such as a multiplicity of pre-trial conferences and likely procedural motions, and several separate trials resulting in weeks of hearings. Prothonotary Tabib further estimated that even a consolidated trial would require at least three weeks and would delay the determination of even the most advanced actions.

 … 

 [54] I emphasize that there are numerous common legal issues raised by the Defendants in the ten actions. The Defendants rely on the doctrine of abuse of copyright as a basis to justify their assertion that Blacklock’s actions in a given context amount to copyright trolling. While this matter will be ultimately determined on the facts adduced in each specific case as to whether there has been copyright misuse, there are nonetheless common underlying legal issues being raised. Similarly, while the questions relating to damages, the value of Blacklock’s license for its product and the defence of fair dealing are questions where the factual assessment of the evidence will play a role, they raise comparable underlying legal questions that can be determined and that could be narrowed in the Finance Action.

(highlight added) 

Blacklock’s is clearly the underdog in terms of resources. It is apparently a family business up against 10 Federal Government departments or agencies. And, notwithstanding its legal victory in an earlier decision from the Ottawa Small Claims Court in 1395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association (“CVA”), 2015 CanLII 65885 (ON SCSM), it must frankly be said that it faces an uphill battle in the Federal Court. From what I’ve seen of the pleadings, which are linked to below, the Feds would seem to have a very strong case in many ways, including but not limited to fair dealing. After all, if a government department can’t avail itself of the fair dealing users’ rights provisions in the Copyright Act for the purpose of research into or criticism of what the media are saying about its public policy positions and the law itself, then what is the purpose of s. 29 of the Copyright Act?  Moreover, the Government apparently has a serious case on copyright misuse and abuse. The Government explicitly alleges that “The Plaintiff is a copyright troll”.

Here is the Statement of Claim and Amended Statement of Defence in T-1391-14, the “Finance” action which has emerged as the lead case. Both of these pleadings are surprisingly brief and general in nature. However, both sides have very able counsel – and hopefully the issues with be dealt with fully and on the merits.

Commentary on Small Claims Court decisions is rare, given that they have no precedential status in higher courts. However, in this case there was a lot of commentary. See, for example the views of Canadian law professor Teresa Scassa here and the redoubtable Mike Masnick on the internationally widely read Techdirt website.  See also other legal commentary that seems mostly negative or deeply sceptical about the decision, e.g. here and here,  here and  here, and a good comment from an IP Osgoode student here. I’m only aware of one commentator who thinks that the Small Claims Court got it right – and she is not a copyright lawyer or expert, as far as I know. See here.

The fact that the Small Claims Court ruling was not appealed likely results from pragmatic considerations.  Moreover, the Canadian Vintners Association presumably has more compelling concerns from its viewpoint than copyright law. Whatever the reason, one can’t fault the Vintners from not appealing this Small Claims Court decision. In any case, the decision not to appeal doesn’t really matter anyway because the Small Claims Court decision – while it got a lot of media attention – has no precedential effect in the Federal Court or the Ontario Superior Court.

Interestingly, I am advised that Blacklock’s has launched at least three actions in the Ontario Superior Court. One of them is being defended by David Fewer, not in his capacity as Director of CIPPIC, but rather in his personal capacity. See the Fillmore Statement of Claim here and the Statement of Defence here. It is not known where these three matters stand and whether there is any serious possibility of future developments that may conflict with the Federal Court decision(s).

Given the apparently litigation-based strategy of the plaintiff on the one hand and the resources and the apparent concern for public policy on the part of the Government, it seems likely that the outcome of the trial set to begin on September 19, 2016 may very well be appealed by one side or the other. That appeal would be heard by the Federal Court of Appeal, which is normally very receptive to helpful interventions.

I agree with Prof. Teresa Scassa that this is an important case to watch this fall.

HPK

Copyright Trolling in Canada: Is Blacklock’s a Copyright Troll & "Frequent Flyer" Litigator?

(Wikemedia)

A recent decision from the Ottawa Small Claims Court in 1395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association (“CVA”), 2015 CanLII 65885 (ON SCSM) is raising some notable eyebrows, for example with  Canadian law professor Teresa Scassa here and the redoubtable @glynmoody on the internationally widely read Techdirt website.

The decision deals with the issues of whether a person without an account to a pay-walled website who receives a “teaser” by email from the website publisher about an article of potential concern to that person or his/her organization and who requests a copy of the work in question from that website from a third party who does have an account is infringing copyright, circumventing a Technical Protection Measure (“TPM”) and can invoke a fair dealing defence in these circumstances. There was also a claim for inducing breach of contract and punitive damages.  The Court came down heavily on the defendants on all issues. The Court found that the defendants were liable for the cost of an institutional subscription in the amount of$11,470 plus punitive damages of $2,000 plus costs.

A few points must be made at the outset:

-          Decisions of the Ontario Small Claims Court, even if correctly decided, have minimal, if any,  precedential status  – other than perhaps in a limited sense of “comity” or “collegiality” amongst other small claims court judges in Ontario. Under the doctrine of “stare decisis”, courts are bound to follow decisions of higher courts to which their decision could be appealed. So, the Federal Court, the Copyright Board and even the Ontario Superior Court are clearly not bound by a decision of an Ontario Small Claims Court.

-          In any event, and with all due respect to the clearly well-intentioned and lengthy reasons of the Deputy Judge (who is not an actual “Judge” but a lawyer who serves part-time as Deputy Judge in the Small Claims Court) who wrote the decision, there are many reasons to doubt that this particular decision was correctly decided in all or even any material respects. It’s arguably an unwarranted and unprecedented stretch of the law to conflate either asking someone for a copy or providing someone with a copy with illegal “circumvention” of a TPM just because the work is behind a paywall.  It’s not even clear that the Blacklock’s paywall constituted a TPM, as defined in the Copyright Act or that there was any circumvention, as defined, in this instance or that any of the activity alleged was prohibited by the legislation. Above all, as Prof. Scassa states succinctly here, “Receiving and reading a copy of an article sent by another person is not per se copyright infringement.” Her conclusion is that “This decision is so entirely lacking in the balance mandated by the Supreme Court of Canada that one can only hope it is nothing more than a strange outlier.”  There are other problems with the decision as well, but I won’t get into them here and now. There’s no need for the moment because it’s a Small Claims Court decision and is of virtually no precedential consequence.

-          In any event, the Supreme Court of Canada made it very clear in the 2004 CCH v. LSUC decision that:

o   “As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available.” (para 49)

o   “The availability of a licence is not relevant to deciding whether a dealing has been fair.” (para 70)

-          Much else could be said about the problems with the decision, but now is not the time or place. Anyway, once again with all respect, it’s just a Small Claims Court decision.

There have been a number of instances in which small claims court judges have written long decisions in Canadian copyright cases. This is interesting, but ironic – because these decisions don’t really count, for better or for worse. However, this is understandable because these cases are probably much more interesting to these judges than the usual types of cases that are handled in their courts. And given the relative paucity of copyright jurisprudence in Canada, they are clearly trying to be helpful.

An interesting question is why this particular case wasn’t brought in the Federal Court – either as an application or a simplified action. Given the amount of money at stake, it could have been brought in either court. Moreover, the Federal Court has procedures for dealing with applications and “simplified actions” that can be fast and economical, while still allowing for adequate document production, cross-examination or discovery as appropriate in advance of a hearing.

Indeed, Blacklock’s has brought several other cases in the Federal Court. Here are 10 cases filed since mid-2014, mostly against the Federal Government or its agencies and a couple of NGOs:

Court Number	Style of Cause	Nature of Proceeding	'RE'
T-1234-15	1395804 ONTARIO LTD. (Blacklock's Reporter) v. ATTORNEY GENERAL OF CANADA	Others - Crown (v. Queen) [Actions]	RE
T-1085-15	1395804 ONTARIO LTD., operation as Blacklock's Reporter v. AGC	Others - Crown (v. Queen) [Actions]	RE
T-897-15	1395804 Ontario LTD. v. Canadian Transportation Agency	Copyright Infringement [Actions]	RE
T-745-15	1395804 Ontario Ltd, operating as Blacklock's Reporter v. Bank of Canada	Copyright Infringement [Actions]	RE
T-477-15	1395804 ONTARIO LTD. ET AL v. CANADIAN FOOD INSPECTION AGENCY	Copyright Infringement [Actions]	RE
T-269-15	1395804 ONTARIO LTD. ET AL v. ATTORNEY GENERAL OF CANADA	Admiralty - Damage (Property & Facilities)	RE
T-2090-14	1395804 ONTARIO LTD v. CANADA (AG)	Copyright Infringement [Actions]	RE
T-1674-14	1395804 ONTARIO LTD. v. SIERRA CLUB CANADA FOUNDATION ET AL	Copyright Infringement [Actions]	RE
T-1613-14	1395804 ONTARIO LTD. v. FRIENDS OF CANADIAN BROADCASTING	Copyright Infringement [Actions]	RE
T-1391-14	139504 ONTARIO LTD., OPERATING AS BLACKLOCK'S REPORTER v. AGC	Copyright Infringement [Actions]	RE

Some of these have been discontinued, which may – though does not necessarily - mean that there was a settlement. However, the cases against the Government are being apparently vigorously defended – and some interesting defences are emerging.

It appears, on the basis of the Government of Canada's amended pleading (see below), that it is going to fight these cases on the basis, inter alia, that Blacklock’s is allegedly a “copyright troll”, uses “teaser emails that are designed to interest the department in reading and distributing the Plaintiff’s articles”, engages in “speculative invoicing” and is engaged in copyright “misuse”.  The Government of Canada has just won a clear and convincing procedural victory on a motion to amend its statement of defence to plead along these lines – along with a costs order of $4,000 against Blacklock’s on a procedural motion and a comment from the Court that:

The motion was contested, it was contested extensively and it took a lot of time. There was a need for cross-examination. In the course of the argument, I made comments to the effect that the Plaintiff’s argument and choice of the way in which it chose to understand questions or construed questions was obtuse to the point of being obstructive.

This is harsh language and a very significant costs order as far as these things go. Here’s the Court’s Order dated October 26, 2015.

Here is the Statement of Claim and Amended Statement of Defence in T-1391-14. This seems to emerging as the lead case.

Blacklock’s appears to have become one of the most "frequent flyers", as it were, in Canadian copyright litigation in the short time of just over one year. I cannot recall any single party bringing ten lawsuits in the Federal Court in just over one year.

For those who are unfamiliar, Blacklock’s is a relatively new online high priced media service ($157 for a personal subscription and $11, 470 for an institutional one) that, according to itself, “…covers news you won’t find anywhere else: bills and regulations; reports and committees; Federal Court and public accounts. We’re the only reporter-owned and operated newsroom in Ottawa that finds the facts needed by business, labour and associations.”

I have been interviewed by Blacklock’s on at least one occasion. I must say that I will now become rather reluctant to be interviewed again by Blacklock’s again, if the allegations in the Federal Government’s amended statement of defence are true.

The business model of a subscription based media service with a narrow and relatively small audience with a timely need to know is a tricky one. It has been practiced to a high level of apparent success and respect by the family owned Hill Times organization in Ottawa, since 1989, for a mostly Ottawa-centric  audience of “Cabinet ministers, MPs, Senators, political staffers, lobbyists, 'backroomers,' political junkies, and some of the top decision-makers in the country, including influential players in Parliament, Cabinet, the Prime Minister's Office, the Privy Council, the Finance Department, Treasury Board, the Department of National Defence, the Justice Department, and more.”

The Hill Times organization seems to know how to successfully balance paper and online publication and free and pay-walled material.  I’m not aware of the Hill Times ever having sued anyone for copyright infringement.  I’m always happy to be interviewed by and occasionally write for the Hill Times and its various specialized offshoots such as the Wire Report or Embassy News.  Nor have I ever heard of large media organizations such as The Economist or the New York Times ever suing anyone for sharing the occasional article that is behind a paywall.

Speaking generally and not about this or any other particular case, suing one’s customers – or potential customers – is rarely a good business model, whether it be for deterrence or, worse still, as a source of revenue or a business model. Ask the RIAA how their campaign against a 12 year old child, a 71 year old grandfather and a dead grandmother worked out. Likewise, and again speaking generally and not about this or any other particular case, there have been recent examples in the USA and UK where some “troll” litigation has backfired badly.

Needless to say, if any of these Blacklock’s Federal Court cases result in a judgment, this would be something worthy of notice because it would potentially have significant precedential value.

If CVA appeals the Small Claims Court decision, things could get very interesting. The appeal would go the Ontario Divisional Court, which, as copyright lawyers should know, delivered an excellent pro-fair dealing ruling in 1997 in the Allen v. Toronto Star case involving the reproduction on the front page of a Toronto Star edition with a major article about Sheila Copps of a whole magazine cover from Saturday Night Magazine featuring a picture of Sheila Copps. It’s not clear that it would be cost beneficial for CVA to appeal the current decision, even if they win. But if it does, it’s reasonable to expect some interest on the part of potential interveners – on both sides of the fence. A decision of the Ontario Divisional Court is one that could indeed have some precedential value.

In any event, interested eyes are – or should be - on the Federal Court cases. If anyone becomes aware of any other Blacklock’s litigation or threatening letters, please feel free to let me know and pass along details, anonymously if you so wish.

Anyway, speaking of alleged copyright trolls, the hearing of Teksavvy’s quest in the Voltage case to appeal the  decision by Prothonotary Roza Aronovitch of the Federal Court regarding TekSavvy’s claim to entitlement to $346,480.68 in which Teksavvy was awarded only $21,557.50 – about 6% of what it asked for overall coming up on November 9, 2015. Although CIPPIC is no longer active in this matter, it would be helpful if CIPPIC would update its website regarding this case soon and post the most pertinent of the obviously voluminous material filed in the Court so that folks who may wish to follow or attend the hearing on November 9, 2015 can be better informed.

More to follow without doubt on both Blacklock’s and Teksavvy soon.

HPK