Law Times

Page 10 January 30, 2017 • Law Times www.lawtimesnews.com Defence of misuse regularly used in U.S., not Canada Feds must take action on copyright trolls BY MICHAEL MCKIERNAN For Law Times T he time has come for Canadian courts to weigh in on copyright misuse by trolls, ac- cording to the director of an Ottawa law and technology clinic. The defence of copyright misuse, based on the idea that rights holders should face sanc- tions for attempting to inf late their rights beyond their entitle- ment in law, is regularly used in the U.S., but it has not yet caught on in this country. However, it has come up in recent Federal Court cases, and David Fewer, the director of the Canadian Internet Policy and Public Interest Clinic, says a recent spate of cases alleging abuse of the notice-and-notice regime for copyright infringe- ment would make some judicial guidance particularly timely. "We're seeing more copy- right misuse here in Canada by lots of copyright trolls. "Allegations of infringement are being used to secure settle- ments that aren't just. "Where there is any infringe- ment, it's not in proportion to the harm alleged," Fewer says. Following the recent release of Federal Court Justice Robert Barnes' decision in 1395804 Ontario Ltd. (Blacklock's Re- porter) v. Canada Attorney General, Fewer lamented the judge's decision not to deal with allegations by the defendant that Blacklock's conduct constituted abuse of copyright. Barnes found the copying and distribution of two pay- walled articles to six staffers at the federal Department of Finance was protected by fair dealing and dismissed the on- line publication's demand for $17,000 in damages, the equiva- lent of a bulk subscription for the ministry's 700 employees. While noting that "there are certainly some troubling as- pects to Blacklock's business practices," the judge found it unnecessary to address the gov- ernment's allegation "that this litigation constitutes a form of copyright abuse by a copyright troll." "I think the time is right. If these cases aren't going to al- low the courts to develop mis- use law, I don't know what has to happen," Fewer says, adding that he was still encouraged by aspects of Barnes' decision. "If you read between the lines, you can tell there is dis- satisfaction with the conduct of Blacklock's, and I think the case is a clear signal to future copy- right trolls that this isn't going to be tolerated," he adds. In his costs decision award- ing $65,000 to Canada — still well short of the $115,000 re- quested — Barnes said he want- ed the amount to ref lect his con- cern with Blacklock's' litigation strategy and rejected the publi- cation's claim for a costs reduc- tion due to the "strong public interest considerations" raised by the case. "Rather, this case was about the Plaintiff 's attempt to re- cover disproportionate dam- ages without any apparent con- sideration to the legal merits of the claim or to the costs that it imposed on the taxpayers of Canada," Barnes wrote. No reporter with the barest knowledge of copyright could have reasonably concluded the ministry staffers' use of the ar- ticles represented copyright infringement, the judge said, adding that fair dealing protec- tion was so obviously applicable to the case "that the litigation should never have been com- menced let alone carried to trial." Fewer and CIPPIC led a previous crusade against copy- right trolling last year when they wrote to then federal In- dustry Minister James Moore to request that a provision "to prohibit and sanction mis- use of copyright" be added to the Copyright Act in the next round of intellectual property law reform. That letter raised concern about the notice-and-notice copyright regime that came into force in early 2015 as part of the 2012 Copyright Modernization Act. Under the system, Internet service providers must forward notices from copyright owners to users whose Internet address- es are identified as potential sources of infringement. But regulations governing the content of notices never ar- rived, leaving the process open to abuse, according to Internet lawyer Allen Mendelsohn. "It's not only open to abuse; it is being abused," he says. "Copyright holders are free to write whatever they want in these notices. Time and time again, we have seen what I will charitably call stretching of the truth as to what the law is," Mendelsohn says. "Hopefully, the government will revisit the system at some stage in the future and give some guidelines as to what can be included." In the fall, the CBC reported that the University of Manitoba had passed on about 6,000 in- fringement notices requesting settlement fees from students for downloading files contain- ing copyrighted material. At the time, the university's copyright strategy manager, Joel Guénette, told the CBC that students felt threatened by the letters, and that some had even paid out of fear that the penal- ties could grow further down the road. Mendelsohn says he has received many emails from people asking him for advice after receiving similar notices but that getting these cases into court for a ruling on copyright misuse would be particularly difficult. "For the most part, they want to remain anonymous, so that also represents a significant bar- rier," he says. John Simpson, the founder of Toronto intellectual property firm Shift Law, is more relaxed about the lack of judicial guid- ance on copyright trolling, in part because he says the busi- ness model for trolls is not viable in this country. "I think rights owners are making the most that they can of the notice-and-notice regime, which is to say not much. "Owners of pornographic content are probably making the most of the system because illegal downloaders of this con- tent are typically embarrassed about getting caught and want a quick resolution," he says. LT FOCUS Allen Mendelsohn says regulations govern- ing content of notices from copyright own- ers to users whose Internet addresses are identified as potential sources of infringe- ment never arrived in Canada. Untitled-9 1 2017-01-24 2:58 PM I think rights owners are making the most that they can of the notice-and-notice regime, which is to say not much. Owners of pornographic content are probably making the most of the system because illegal downloaders of this content are typically embarrassed about getting caught and want a quick resolution. John Simpson

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