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.

The Canadian Nintendo Circumvention Decision – Should it be given “high precedential value”?

The Federal Court of Canada on March 1, 2017 rendered a lengthy judgment in favour of Nintendo dealing with copyright infringement and circumvention. It is the first significant reported superior court decision on the 2012 anti-circumvention measures in Canada’s Copyright Act.  The Court expressed explicit awareness of the potentially “high precedential value of the expected outcome” of this case. However, due to certain unusual aspects of how this case unfolded, jurists, academics, and future litigants might question the precedential value of the decision.

Here, in the Court’s words, is the explanation of how and why this judgment was rendered:

[11] As to the nature of the decision to be rendered in conclusion of the litigation, Counsel for the Applicant stated the Applicant’s interest in developing the law with respect to TPMs, their circumvention, statutory damages, and enforcement measures to the benefit of the industry concerned in Canada and globally. Given the high precedential value of this expected outcome, at my request, Counsel for the Applicant agreed to supply a final consolidated written argument stating the terms that the Applicant would prefer to be the substance of the final determination of the litigation, to be served and filed on Counsel for the corporate Respondent to allow a potential reply.

[12] The argument was prepared, served, and filed, and by letter dated December 19, 2016, Counsel for the corporate Respondent replied “kindly be advised that the Respondent will not be filing additional representations…”.

[13] In the result, to fairly and appropriately acknowledge the precise, clear, well supported, and effectively uncontested final argument prepared by Counsel for the Applicant, with which I fully agree, I find that the Applicant is entitled to have the final argument, as stated below, as my reasons for decision in the present litigation.

(highlight and emphasis added)

Here is some further context and analysis.

In the instant Nintendo decision, the Court awarded against the corporate defendant:

a. $11,700,000 in statutory damages pursuant to s. 38.1 of the

Copyright Act in respect of circumvention of technological

protection measures;

b. $60,000 in statutory damages pursuant to s. 38.1 of the Copyright Act in respect of copyright infringement of the Header Data works;

c. $1,000,000 in punitive damages

… [interest award]

f. costs, assessed under Column V of Tariff B to the Federal Courts Rules.

After the individual Respondent agreed to a consent judgment against him for $70,000, the case was “effectively uncontested”, as the Court noted. This was an “application” and not an “action”, which means that evidence can only be put in by affidavit and there are no “live” witnesses.   The Respondents had filed written representations before the commencement the hearing but provided no evidence and did not cross-examine any of Nintendo’s witnesses on their affidavits.

The Court requested and received further written final supplemental written submissions before the conclusion of the hearing.  The respondents did not, although entitled, reply. Indeed, the Respondent’s counsel did not appear for the final oral argument.

The Court proceeded on this basis to render a judgment in which all but the introductory 14 paragraphs of this 181 paragraph 51-page judgment are a virtually verbatim reproduction of Nintendo’s final supplemental written submissions. Paragraphs 14 and thereafter until the conclusion of the judgment track paragraphs 14 and thereafter of Nintendo’s supplemental written submissions.

There is nothing necessarily improper about a judge copying material from a party’s memorandum. The learned and very experienced trial judge provided acknowledgement of his request for the supplemental written submissions and how they were used. That satisfies a requirement that has been dealt with by the Federal Court of Appeal in Apotex Inc. v. Janssen-Ortho Inc., 2009 FCA 212 (CanLII), where the need for explicit “acknowledgment” of the adoption of a party’s written submissions was addressed. For those further interested in jurisprudence on what the Supreme Court of Canada recently referred to as “the long tradition of judicial copying”, see  Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357, 2013 SCC 30.

The real issue here is that the judgment makes some sweeping pronouncements and awards an enormous amount of very likely uncollectable damages based upon “effectively uncontested” arguments and unchallenged evidence that, in the result, leaves the Court with something not much different than a default proceeding. This left the Court without the benefit of full submissions and argumentation on some of the key issues and relevant case law. That is not the way the adversarial process normally works when we depend on it to generate binding precedents. In this case, we now have a judgment that, with respect, may be wrong in certain important aspects because the Court did not have the benefit of opposing arguments.

Nintendo’s argument, as adopted into the decision resulted in an enormous – by Canadian standards – unprecedented award of statutory damages in respect of circumvention of TPM measures. It is based upon the Court’s conclusion that Nintendo is entitled to the maximum level of $20,000 of statutory damages are due “for each of the 585 Nintendo Games to which the Respondent’s circumvention devices provide unauthorized access” (para 141 if Judgement). (emphasis added).

However, it is very doubtful that Nintendo was entitled to damages for “each” of these 585 works when there was no evidence that any of them were actually illegally copied by anyone. Moreover, it appears that the Court was not provided with arguably very relevant case law that might have at least resulted in an award of a nominal fraction the maximum statutory damages of $20,000 per work. One can only begin to imagine the absurd result if such an approach to damages were used, for example, against a researcher (e.g. a university professor or student) who somehow gains unauthorized access to a newspaper website or other research database, perhaps reads a single article, is found to have “circumvented” a TPM, and is then held liable for $20,000 for each the tens or hundreds of thousands of individual articles that were never downloaded or even read on the website.

The reasoning with respect to the physical configuration of the Applicant’s game cards as an effective TPM for controlling access to the Nintendo Games is seriously worrisome. Does this mean that an arbitrary un-patentable design for a cable connector or any other physical interface involved in a so-called proprietary system can become a TPM for Copyright Act purposes? This could have immensely anti-competitive implications, for example with respect to the market for ear buds or selfie sticks or another smart phone accessories.

In my respectful view, given the “effectively uncontested” nature of this proceeding and the novel and important issues that were raised, the learned Judge could or should have merely entered a non-precedential decision with a minimal recitation of the “effectively unopposed” factual outline, just as he did for the individual respondent.  That would serve a deterrent effect – just as the consent order for an enormous judgment against Gary Fung and iSoHunt has no doubt done to some extent – but not result in any legal precedent and particularly not an arguably incorrect legal precedent. Such a non-precedential decision would have consistent with Chief Justice Crampton’s recent NOTICE TO THE PARTIES AND THE PROFESSION PUBLICATION OF DECISIONS OF PRECEDENTIAL VALUE June 19, 2015, which allows for:

Non-Precedential Decisions

Final decisions that are considered by the presiding judicial officer not to have precedential value are normally issued in the form of a “Judgment”, without detailed reasons. These decisions will not be given a neutral citation number and will not appear on the Court’s website. Interlocutory decisions that are considered not to have precedential value are normally issued as an “Order,” again without detailed reasons, in which case they are not given neutral citation numbers and are not posted on the Court’s website. This category typically includes “speaking orders” or “endorsement”-style decisions, including judgments rendered orally in open court and reduced to writing thereafter.

Interestingly, the same learned Judge in 2013 awarded an eye-catching sum of $10.5 million of statutory damages in a default judgment in Twentieth Century Fox v. Hernandez. This was, quite properly, an unreported case. Nonetheless, it got some attention in the media and blogosphere. Here is Prof. Scassa’s comment and here is a link to a privately posted copy of the judgment as provided by Prof. Scassa. Once again, although the Nintendo case was not technically a default situation, it was quite close to it for practical purposes. It might have been better if the learned judge had used a similar approach here to send a message without necessarily setting an arguably binding and arguably substantively incorrect precedent.  This would have received lots of attention but not resulted in potential questions as to the very precedential value or weight of the decision.

On the one hand, one can be sympathetic to Nintendo wanting a precedential judgment in this proceeding, given the resources it applied to the case and the issues at stake. To Nintendo’s credit, this was not a “default” proceeding – although it effectively comes quite close. It does not, however, necessarily follow that this decision should be given “high precedential value”.

On the other hand, one must be wary of the potential that powerful parties can effectively write their own judgments by suing much weaker parties who don’t simply default but cannot begin to fully fight back. One thoughtful commentary on this case comes from Ariel Thomas at Fasken’s, who at least poses the questions of “Can a party write its own judgment?” and “Is this the first of several judgments to come that is actually written by one of the parties?”.

Most of the comments to date have uncritically suggested the precedential importance of this case without digging deeper into the circumstances behind it.

Michael Geist was perhaps first out of the gate to point out how sweeping the decision is, although he does not question its precedential value.  John McKeown, another respected commentator, has written about the decision but questions it only to the extent of noting that “the amount of statutory damages ordered to be paid may also be a function of the fact that the case was in effect uncontested”. There have been a number of other commentaries, and ALAI has even scheduled an event on April 30, 2017 about this case.

In the end, the process in this case did not provide the trial judge with the benefit of a balanced adversarial exploration of the critical issues before him. A full hearing is crucial to the fundamental principle of “stare decisis”. The Nintendo decision raises some interesting questions in this respect and should not, as a result, be given “high precedential value”.

HPK