Blacklock’s has filed its Memorandum in its appeal from Justice Roy’s decision earlier this year that meticulously
ruled against it holding that :
1. It is hereby declared that,
having purchased the only
type of subscription
available, which was allowing the acquisition of the
password needed to access
articles produced by Blacklock’s Reporter, Parks Canada’s
use of the password in
the circumstances of this case constitutes fair dealing
under section 29 of the
Copyright Act.
2. It is hereby declared that the licit acquisition and use of
a password, if it is
otherwise a technological protection measure, does not
constitute the
circumvention of the technological protection measures of
the Copyright Act.
3. There is no order as to
costs.
(highlight added)
Blacklock’s unusually begins its memorandum with bombastic, histrionic,
fulsome, fulminating, and patently
problematic language untethered to the record and unusual (to put it very mildly)
in my experience in the Federal Court of Appeal, especially over the signature
of experienced counsel:
A Case of David vs Goliath
1.Before addressing the
substance of the appeal, this case warrants a brief explanation of the
circumstances that form the backdrop of this proceeding. Over the years, the
Attorney General of Canada’s (“AGC”) long-standing strategy has been to
characterize the Appellant, 1395804 ONTARIO LTD.’s (“Blacklock’s”) (and
Mr. Korski) as a vexatious litigant and a copyright troll, with the intention
of deflecting the narrative away from the numerous government departments that
have knowingly or carelessly violated Blacklock’s copyright and technological
protection measure (“TPM”). While at the hearing the Trial Judge was
adamant that no credence was to be given to the allegations of copyright
trolling, it is clear from
the Judgment that the Trial Judge’s perception of Blacklock’s was polluted.
Throughout the Judgment, Parks Canada is unduly painted as righteous,1 and
Blacklock’s is unnecessarily and inordinately tarred and feathered,
including the Trial Judge, without cause, impetuously accusing
Mr. Korski (Blacklock’s) of fabricating or tampering with evidence. This is a classic
case of David vs Goliath, and despite the evidence and law favouring
Blacklock’s, Blacklock’s has been pummeled by years of
litigation, and unfair treatment, all because Blacklock’s engages in
investigative journalism that that exposes cases of waste and/or mismanagement
in government departments..
1 The Trial Judge uses words
such as “legitimate”; “valid”; “good faith” in describing Parks Canada, see
paragraph 101 of the Judgment as an example (AB Tab 2, p 62).
(highlight, bold, &
underline added)
I will refrain from commenting further on Blacklock’s
Memorandum until I see the Memoranda of
the Attorney General (AG) and, presumably, the intervener CIPPIC. BTW, the AG
has consented to CIPPIC’s proposed intervention and
Blacklock’s has indicated that that it will not oppose CIPPIC’s intervention.
Notably, and despite all the whining, there are no other
potential interveners in sight. As I’ve suggested, Justice Roy’s decision is
actually good news for major media outlets that have sophisticated websites and
password mechanisms. Here’s my blog from September 4, 2024. As I said
then:
So – let us hope that
Alexander Gay’s successor in this file in the appeal process does just as
vigorous and competent a job as Mr. Gay and, if anything, has fewer
restrictions on his brief. And let’s hope that James Plotkin will be there for
CIPPIC with as much scope or even more to act as an essential intervener.
As for this appeal, I remind
readers once again that I’m retired and not practicing law and that nothing on
this blog is legal advice. That said, my personal opinion about this appeal is
that Blacklock’s should be careful what it wishes for. A loss in the Federal
Court of Appeal could be costly financially and substantively, and I would be
very surprised if the SCC were to grant leave to appeal in this case.
HPK