It is the nature of laws – at least, in free societies – to be passed in response to new developments in society. That is why, in the common law tradition, legal precedents affect not only how old laws are applied but also how new laws evolve.
This creates a feedback mechanism: the laws affect how the rules of society evolve, the rules of society affect how the laws evolve.
Currently, the courts are trying to interpret the existing laws to accommodate the changes due to our ‘communications revolution’. Since more and more of our public and private communication as well as our public and private information is online, the impact these ruling will have over the coming decades is truly profound.
This makes Connie and Mark Fournier’s ongoing legal battles very important to all of us: if you are reading this on a computer, then the rulings in their legal battles will affect the rules under which you live your life. And not just in Canada – the world is fast becoming one electronic family and slowly but surely, internet-affecting legal precedents set in one Western country reverberate in the whole world.
That is why I have started to document the Fourniers’ legal journey – even though I have no legal training and my understanding of what is being said in court is imperfect. But, if I document it to the best of my ability, perhaps others who are more knowledgable will be able to comment on what I have witnessed and explain it better to all of us!
Last week, the Fourniers were in Federal court in Ottawa – charged with copyright infringement by Richard Warman.
To my mind, some of the things the Fourniers are charged with are difficult to understand – but one of them is very clear and will very likely set the legal precedent for Canada on a very hot topic: ‘inline linking’. The legal precedent on copyright issues regarding the insertion of an inline web link has been ruled by the US Court of Appeals for the Ninth Circuit, clarifying that inserting them does not violate US copyright laws. For search engines, anyway…
There has not been a comparable ruling in Canada – yet.
Richard Warman has brought a lawsuit against the Fourniers for violating his copyright in 3 separate ways.
One – and, perhaps most important regarding the abovementioned legal precedent – is for having permitted the insertion of an ‘inline-link’ on the Free Dominion forum they operate which linked to a picture of Richard Warman, on his own website.
In other words, the picture was always posted only on Richard Warman’s own personal website and he had full control over it. An inline-link was posted on Free Dominion which would show the reader Richard Warman’s picture from Richard Warman’s site. The picture was, at all times, on Mr. Warman’s server and under his complete control – he could have, at any time, blocked inline-linking to the picture…yet he chose to permit inline-links to the picture to function.
Inserting the inline-link on Free Dominion, according to Mr. Warman’s claim, constitutes displaying his image without permission and thus infringes on his copyright.
Therefore, the ruling on this will have important implications for internet use in Canada, perhaps further. Should the ruling go against the Fourniers, then any time anyone inserts a hot-link when they comment on something on a blog or site you control, you could be liable for copyright infringement.
The other two counts of copyright infringment Mr. Warman is suing the Fourniers for are regarding words, not images, and words which were posted on the Free Dominion site and not words that were simply linked to.
Jonathan Kay had written an article for National Post in which documented how, at various court hearings, it was revealed that Mr. Warman appears to have made some highly inflammatory racist, misogynistic and anti-immigrant comments (specifically targeting Senator Anne Cools) on a white supremacist website/forum. (I myself have heard the same assertions during the ‘Vigna v Levant’ defamation hearing, where Mr. Levant had clarified that to the best of his knowledge, it was not Mr. Vigna but rather Mr. Warman who was the card-carrying member of a neo-nazi organization and the author of this most vile hate speech directed against our first black female Senator.)
This newspaper article was re-printed (with credit – but it was not stated during the hearing if fully or partially) on the Free Dominion forum.
Mr. Warman sued the National Post for publishing that article and the National Post and he reached an out-of-court settlement with them. As part of this settlement, Mr. Warman got the copyright of the article.
Once he owned the rights to the article, Mr. Warman’s lawyers contacted the Fourniers and demanded that they remove the article from their website. This they complied with immediately, as was confirmed by Mr. Warman’s lawyers.
Despite this, at some subsequent time, the Fourniers were contacted by Mr. Warman’s lawyers and were requested to pay some sum of money to Mr. Warman to avoid a lawsuit for having posted the article in the first place. The Fourniers believed that they had complied with the request to remove the offensive material in a timely manner and therefore did not think they were obligated to pay any money as well. Subsequently, Richard Warman filed a copyright violation lawsuit against them on these grounds.
The last, third count of copyright violation has me puzzled more than the previous two.
The Fourniers had posted on Free Dominion sections of court documents – public documents, to the best of my knowledge – which had contained the phrases on the basis of which Mr. Warman was taking legal action against someone (the phrases he had found offensive) which had also been published in the article from point two. Even though the Fourniers had clearly published these phrases as part of a public document, as they were also part of the article which Mr. Warman’s lawyers asked them to take down, Mr. Warman had charged them with copyright infringement for having posted them.
This, in a nutshell, is the background to this particular lawsuit Mr. Warman is pursuing against the Fourniers.
The Fourniers had filed their defense statement with the court – representing themselves. Mr. Warman’s lawyers had informed the Fourniers that some of the things which they listed in their documents were inadmissible in court and asked the Fourniers to remove them. The Fourniers refused to do so, because they believe this information to be relevant to their defense and would like the judge in the case to be the one to decide what is admissible and what is not.
Mr. Warman’s lawyers then filed a motion to have parts of the Fourniers defence statements struck from the record (not all the bits they had originally wanted removed, but still a significant amount)- something the Fourniers believe will affect their defense not only in this copyright violation lawsuit but also in three additional lawsuits (for defamation, I believe) that Mr. Warman is pursuing against them.
Last week, there was a hearing in federal court for this motion – a most interesting event in its own right (which I had gone to see for myself and will write up very, very soon, I promise!).