Supreme Court of Canada rules on ‘copyright’ in the context of education

The Supreme Court of Canada has handed down a ruling that covers copyright issues as they relate to educational institutions.  It’s ruling is not exactly supportive of the copyright cartel…

From Dr. Michael Geist’s commentary on the ruling:

‘The Supreme Court of Canada issued its much anticipated rulings in the five copyright cases (ESAC v. SOCANRogers v. SOCANSOCAN v. Bell – song previews, Alberta v. Access CopyrightRe:Sound) it heard last December (my coverage of the two days of hearings hereand here). It will obviously take some time to digest these decisions, but the clear takeaway is that the court has delivered an undisputed win for fair dealing that has positive implications for education and innovation, while striking a serious blow to copyright collectives such as Access Copyright. ‘

In my never-humble-opinion, the ‘copyright issue’ in our society suffers from the same difficulty in being heard that the ‘atheist issue’ does:  it is impossible for individuals who are simply speaking for themselves (whether they be individual people who are defending their property rights over copyrighted items they have purchased or individuals who simply do not belong to any religious organization) to be heard over the voices of well organized groups with ample funding (whether they be religious organizations or industry representatives).

It is my hope that the ruling, which says it is the consumer’s rights and not the copyright holders that must be given the broadest consideration, will discourage the initiation of frivolous lawsuits which maliciously target people and make the lawsuit process itself a punishment.

From OpenMedia

This is from an email I received today from OpenMedia:

Imagine a world where you could be dragged to court and receive a large fine for simply clicking on the wrong link, where service providers would hand over information about your online activities without privacy safeguards, and where online content could be removed by big media conglomerates at will.

This scenario could become a reality before we know it. In just a few days1, a group of 600 lobbyist “advisors” and un-elected trade representatives are scheming behind closed doors 2 to decide how the Internet will be governed, including whether you could get fined for your Internet use.3 Instead of debating this openly, they’re meeting secretly to craft an Internet trap through an international agreement called the Trans-Pacific Partnership (TPP).4 Our government just signed Canada onto this arrangement, without our consent.5

In short, it appears that it will be big-media lobbyists—not citizens—who get to decide whether Canadians will be fined as suspected copyright criminals. Please help us raise a loud call before it’s too late. Visit: http://stopthetrap.net

We know from leaked documents6 that industry lobbyists intend to blanket these new restrictions and laws around the world, without us having any say in the matter. How can they do this?

Instead of an open, public process, they’ll use international tribunals to go around domestic judicial systems.7 And once the trap is set, there’s no going back. That’s why OpenMedia.ca and SumOfUs are launching this campaign today.

Here are the details—the TPP’s Internet trap would:

  1. Criminalize some of your everyday use of the Internet,8
  2. Force service providers to collect and hand over your private data without privacy safeguards9, and
  3. Give media conglomerates more power to fine you for Internet use, remove online content—including entire websites—and even terminate your access to the Internet.10

The TPP is secretive, it’s extreme, and it will criminalize your daily use of the Internet.
Don’t let Big Media lobbyists lure you into this Internet trap. Speak out now.

We deserve to know what will be blocked, and what we and our families will be fined for. If enough of us speak out now, we can prevent the Canadian government from slow-walking us into an Internet trap. Make your voice heard today.

For the possibilities of an open Internet,

Steve, Shea, Lindsey, and Reilly—your OpenMedia team

P.S. We’ve been through a lot together. Industry and government bureaucracies have tried to make Canada’s Internet more costly, controlled, and surveilled. We fought back together and successfully held the line. Now some of those same bureaucracies are going around our democratic processes to impose an Internet trap through this extreme and secretive trade agreement. Let’s take the next step to safeguard the open and affordable Internet together now.

Footnotes

[1] The next round of TPP negotiations will take place between July 2nd and July 9th 2012. The meetings remain controversially secretive without meaningful public participation while, according to U.S. Senator Ron Wyden, industry lobbyists from Big Media entities like Comcast and the Motion Picture Association of America are “made privy to details of the agreement”.

[2] The TPP suffers from a lack of transparency, public participation, and democratic accountability. In this letter, a number of U.S. civil society organizations detail and decry the opacity of the process.

[3] See the Electronic Frontier Foundation’s analysis to learn more about the ways the TPP increases the threat of litigation from Big Media. Under the TPP, Big Media could come after you in court even “without the need for a formal complaint by a private party or right holder”.

[4] Find our backgrounder on the TPP here, and our press release about Ottawa’s irresponsible participationhere.

[5] On Tuesday, June 19, 2012, Prime Minister Stephen Harper announced that Canada would join the Trans-Pacific Partnership.

[6] Public interest groups have obtained the February 2011 draft of the TPP’s Intellectual Property Rights Chapter. In it, we can see that the TPP would drastically increase Internet surveillance, increase Big Media’s Internet lockdown powers, and criminalize content sharing in general, with a likelihood of harsher penalties.

[7] The recently leaked investment chapter of the TPP reveals that the TPP would establish a two-track legal system that gives foreign firms new rights to skirt domestic courts and laws, directly sue governments before foreign tribunals and demand compensation for laws they claim undermine their TPP privileges.

[8] In addition to the Electronic Frontier Foundation’s analysis, also see Public Knowledge’s run down of concerns with The TPP IP chapter’s criminalization of downloading.

[9,10] See infojustics.org’s list of the TPP’s effects on the intellectual property law in Canada and Mexico for more information on penalties, privacy implications, and also Public Knowledge: What’s actually in the TPP?

Support OpenMedia.ca

Ruling in the ‘Warman V Free Dominion’ case – well, in one of the cases, at least…

I have reported on what I saw and heard in court during the hearing itself here.

Richard Warman is an Ottawa lawyer whose hobby appears to be using the legal system to shut up people who hold views he does not like – and the consequences be damned.  He also has frequent-flyer points on using the Human Rights commissions to persecute people he finds ‘annoying’ and many believe that it is at least in part because of the way Mr. Warman used (or, perhaps, abused) the Human Rights Code that the section he used most often, Section 13, got removed.

I suspect that Mr. Warman finds people who stand up to him to be ‘particularly annoying’.

Connie and Mark Fournier run Free Dominion, Canada’s perhaps oldest, certainly largest,  discussion forum with a conservative bend.  They have stood up to Mr. Warman and his hoard of henchmen for years.

The Fourniers have been a favourite target of the serial suer Warman.

The decision has now come down in the latest lawsuit, which will have impact on how copyright laws are interpreted not just in Canada, but to a lesser extent also in other common law countries. And, it is clearly in favour of the Fourniers and freedom of speech!!!

And, it is hitting all the internet high-sites!

From Dr. Michael Geist:

‘The court’s discussion is important for several reasons. First, the finding that several paragraphs do not constitute a substantial part of the work has echoes to the Supreme Court of Canada hearing in December when the court opened the door to questions about some of the copying in schools not rising to the level of substantial copying. Moreover, if this amount of copying is not substantial, it has implications in a wide range of additional cases (including the Access Copyright model licence). Second, the court’s conclusion is critically important to online chat forums, blogs, and other venues where copying several paragraphs from an article is quite common. Given the court’s analysis, such copying appears to be permissible on at least two grounds, including the notion that such postings can be treated as news reporting for fair dealing purposes. 

The third claim involved a link to a photograph posted on the photographer’s site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. ‘

In other words, 100% in favour of the Fourniers!

And, let’s not forget – this is only one of many lawsuits the Fourniers have faced and are still facing.  They have already set legal precedents in Canada when they stood up for the privacy rights of the users of their forum!!!

The practical implication of this is that they had to represent themselves in this latest court battle.

Connie Fournier, a computer scientist with a formidable mind, had to not only research all the laws and put the case together herself, she had to learn all the ‘tricks of the trade’ on how to do it and how to do it right.  Not an easy task…

Well, she did something right!!!

From TechDirt:

‘All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there’s also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.’

From boingboing:

Canadian fed court: linking isn’t copyright infringement, neither is excerpting an article

From Law 360:

‘Ottawa Federal Court Judge Donald J. Rennie ruled against attorney Richard Warman, who along with the National Post Co. had sued Free Dominion website operators Mark and Constance Fournier for having reproduced a speech Warman had written and parts of a newspaper article that had been written about him, and for linking a photograph that was…’

I’m sure there is more….

The full ruling is here.

“Democracy” in the EU – lol

One would laugh, if this were not so tragic!

EU bureaucrats are openly over-ruling the will of its member states!

Some European nation states have already passed national law that make ACTA and ACTA-like monstrosities illegal in their countries.

EU bureaucrats say that’s too bad, they trump any national laws…

And, if the EU courts decide that ACTA is illegal, they’ll find some way to change the laws.

This is a very, very dangerous precedent!

From TechDirt:

‘In other words, De Gucht won’t accept the idea that the European electorate, through their representatives in the European Parliament, might possibly want to reject something they were not allowed to know about until late in the negotiating process, and to which they were unable to provide any meaningful input. In his view, ACTA must be passed, and ACTA will be passed — whatever anyone else thinks about it.’

 

And don’t forget, the EU is UN’s mini-me.  As at the EU, so in the UN.

We will see this, more and more: bureaucrat-crafted ‘international agreements’ will be forced as laws on member nation states, whether they like it or not.    In the EU and UN both!

Remember, the UN, chock-full of dictators and tyrants, is not big on Western values and civil liberties – and its laws/treaties reflect this.  Even its Universal Declaration of Human Rights states clearly that human rights may only be enjoyed to the degree that local laws deem appropriate!!!

If you think this should not scare you, because you don’t live in the EU – don’t be so sure.  The UN is just using the EU to work out some of the ‘how to’ kinks on its way to regulating humanity into virtual extinction!

The Richard O’Dwyer petition

Don’t know who Richard O’Dwyer is?

Richard O’Dwyer is a UK citizen and resident.

While in the UK, he is accused (not convicted) of breaking US laws in the  UK – and is being extradited to the US for it!

Since when does the US have the right to enforce its laws on people outside its borders, who aren’t even themselves Americans?

OK, Kim Dotcom might have ideas of what this feels like – but he has a legal team to help him while this kid just created a website in his free time where people shared links.

His site itself did not host any copyrighted material – just links.

He complied with each and every takedown notice that he was linking to copyrighted material.

Yet, he is still being extradited to the US where he faces over a decade in jail?!?!?

This is all out of whack…

The petition voicing displeasure at this state of things is here.

It also fleshes out the backstory:

‘Richard O’Dwyer is the human face of the battle between the content industry and the interests of the general public. Earlier this year, in the fight against the anti-copyright bills SOPA and PIPA, the public won its first big victory. This could be our second.’

We should all pay attention.

Copyright infringement has always been – and ought to remain – a civil matter.

That we have permitted the resources of the state to be subverted for the use of Big Media,  that we consider copyright infringement to be the same as theft – even though not a single person or corporation had been deprived of the use of their property – that is just unbelievably misguided.

But that people living in distant lands should be extradited and tried for their activities which, at best (if the prosecutors win their case),  did not commit copyright  infringement directly, but simply facilitated it…

That is too bizzare for words!

Anti-Piracy Patent Stops Students From Sharing Textbooks

If you went to University or College before electronic textbooks were a reality, chances are you bought at least some of your textbooks second-hand – or, perhaps, sold the ones you were done with in order to buy new ones.  Textbooks are hundreds of dollars!

One could understand that:  with a small target audience, the printing setup costs would drive the prices of individual books sky high!

Electronic textbooks are an excellent way to make education more accessible.  Everyone should be happy about that!!!

Well, sot so.

‘The result is less money for publishers, and fewer opportunities for professors like himself[Joseph Henry Vogel] to get published. With Vogel’s invention, however, this threat can be stopped.

The idea is simple. As part of a course, students will have to participate in a web-based discussion board, an activity which counts towards their final grade. To gain access to the board students need a special code, which they get by buying the associated textbook.

Students who don’t pay can’t participate in the course and therefore get a lower grade.’

In other words, when you register for the course, you only get access to part of it.  To access the full course, you also have to buy the textbook.  New.

Scum!!!

An account of the hearing in Warman v Fourniers, copyright infringment, 28th of May, 2012

UPDATE:  Court decision goes in the Fournier’s favour.

Connie and Mark Fournier were in Federal court yesterday, defending themselves from a triple charge of copyright infringement.

Even though I am woefully out of depth in attempting to comment on laws and legal matters (having no training in that field whatsoever), I will nonetheless do my best to report on what transpired in court, because copyright issues are very serious.  In my never-humble-opinion, copyright laws are one of the greatest threats to civil liberties in our lifetimes.

Well, at least here, in ‘The West’.

One of.

Qualifiers aside, the Fourniers have already made impact on Canadian jurisprudence in the field of internet privacy.  Thanks to them, potential defamation litigants have to meet a ‘prima facie’ test that material posted on the internet actually is defamatory before seeking to publicly reveal the identity of the person who posted it.

The current matter at hand has little to do with internet privacy or defamation – it is a copyright issue.  I have reported on the hearing on a motion to this (one held to decide what the Fourniers may use to defend themselves to this lawsuit) here, I posted the ruling on the motion here (it permitted the Fourniers to use the materials they wanted in their defense).

So, yesterday was the big day of the hearing itself.

The Fourniers are representing themselves – with all the lawsuits that ‘He-Who-Must-Not-Be-Named’ is throwing at the Fourniers, it is amazing just how well they are standing up against what, in my never-humble-opinion, constitutes the type of ‘maximum disruption’ tactics of legal warfare that Mr. Warman has, in my never-humble-opinion, boasted of implementing against either neo-nazis or people whom he finds ‘annoying’.

Sorry about all the ‘in my never-humble-opinion’ repetitions:  I just want it to be clear that it is not fact, but simply my opinion that Mr. Warman has boasted about his ‘maximum disruption’ tactics; it is my opinion that this constitutes lawfare; and it is my opinion that his multiple lawsuits against the Fourniers constitute both lawfare and the ‘maximum disruption tactics’ I believe he has boasted of.  All I report on below is not ‘facts’, but simply  my observation and highly limited understanding thereof.

And, it is my opinion that Mr. Warman finds Connie and Mark Fournier to be ‘annoying’.

As a matter of fact, everything I write here is my opinion and should not be taken to be anything else.  I just want to make sure.  My opinion – and not an expert one, at that!  Because, after all, one can never be careful enough when naming ‘You-Know-Who’…  there is (an undoubtedly unfounded) superstition among many Canadian bloggers that if you mention ‘You-Know-Whos’s’ name in a blog post, you just might find yourself on the wrong end of a lawsuit!

Re-focusing:  the courtroom!

Mr. Warman wore a black suit to court yesterday- a suit which rather hung on his tall frame, as if he had suddenly lost quite a bit of weight but had not yet adjusted his wardrobe to reflect this.  He also seemed distracted at most times and did not boss his lawyer around even once – which is unusual.  While walking in or out, he seemed to take pains not to meet anyone’s eyes.  While I do deplore Mr. Warman’s actions, I do not wish him any personal harm and sincerely hope that this is not an indication of some illness.

Mr. Warman was represented by the ever charming Mr. James Katz, who is (once again) sporting the most elegant beard.  It is my never-humble-opinion that without Mr. Katz’s genius, Mr. Warman’s lawsuits not have gotten very far…and that the recognition of this (on some, perhaps subconscious, level) is at least partly behind of the way Mr. Warman usually talks down to Mr. Katz.

Connie Fournier looked her best in a fashinably-cut black-and-white graphic floral  print dress with pink accents and a matching pink cardigan.  During her presentation to the courts, she spoke eloquently, confidently and persuasively.  She supported her statements with legal precedents as if she were an expert in law and not a computer scientist.  Ms. Fournier possesses a gentle, intelligent beauty – and her mind is as sharp as, well, think of the sharpest thing you can.  Like that.

The deeply charismatic Mark Fournier, in earthtone shirtsleeves and tie, looked steadfast, respectworthy and confident.

The case was presided over by judge Donald Renney, who was most excellent at remaining ‘unreadable’ throughout the proceedings, which frustrated your not-so-humble reporter so very much…

Now, the stage is set for action!

Mr. Katz presented his case first.  The judge interrupted very seldom, but did ask a few questions along the way. His presentation of the case ended at 10:30.  After a short recess, Ms. Fournier presented the case for the defense.  At noon, there was another very short recess (on the request of Mr. Katz), following which he had a chance to rebut Ms. Fournier’s points.

With the two short breaks, the whole thing was over at 12:18.

Since both sides had to make written presentations of their case to the court (and each other), both sides and the judge were familiar with the arguments and things therefore ‘jumped around’ quite a bit.  For clarity’s sake, I will list/define the proceedings by the issues.

Issue #1:  ‘the Warman work’ (Ww)

Richard Warman had, at some point, given a speech to an unsavoury group, the ARC (Anti-racism something-or-other) which has the reputation (deservedly or not) of being a violent anarchist organization.  During this speech, Mr. Warman had outlined his tactic of ‘maximum disruption’ to be applied to neo-nazis and/or people he finds annoying.

The Fourniers are accused of having infringed Mr. Warman’s copyright by republishing the text of this speech.

Mr. Katz said that since they had published the text of the speech, if Mr. Warman chose to try to publish it for money in the future, he would be disadvantaged because it has already been made public.  Thus, their action diminished the value of Mr. Warman’s copyright.

The Fournier’s defense – as best as I understand it – is that the Fourniers did not even know who Mr. Warman was, until he started to sue them for defamation.  Therefore, they began to research him, in order to build their legal defense against his lawsuit(s).  Free Dominion was the forum where this research for the purposes of their legal defense was going on – so that others might contribute to it in a collaborative, synergistic sort of way.

While copyright laws are powerful, there are some ‘fair dealing’ provisions which trump the copyright bit:  one of them is doing research, including specifically for the purposes of legal defense.  The Fourniers are therefore claiming that since this was a bonafied use of the Ww for the purposes of researching their legal defense in the defamation suits, the exception of ‘fair use/dealing’ applies.

It is my opinion that the Fourniers believe that the reason Mr. Warman wishes to pursue this matter is not because of any potential monetary damage but because Mr. Warman was too ‘unguarded’ in this speech and revealed too much about his desires to subvert the legal system from a tool of justice to a tool of persecution, silencing his political opponents by financially exhausting them by prolonged and costly vexatious court proceedings.  I suspect the Fourniers believe that Mr. Warman acknowledges the illegality of his method in this speech, when he asserts that his friends who are police officers would be horrified at his actions.  And, I suspect they believe that his reasons for suppressing the publication of this speech is precisely to hide his public statement that he intends to use illegal methods (subverting the legal system) to achieve his ends…

Again, I could be wrong – but that is what I took away from listening to the court proceedings.

But, to recap:  Mr. Warman says there was copyright infringement.  The Fourniers claim ‘fair use’ for research and news-worthiness plus no monetary damages (no harm, no foul) were experienced by Mr. Warman, his motive for suing being not any real or potential damages from copyright infringement but the desire to hide the evidence of his stated ‘intention of law-breaking’ from public record.

Issue # 2:  ‘the Kay work’ (Kw)

(Note:  all the parties were referring to materials they had in front of them.  I was writing things down as quickly as I could as they were being said, but the timeline is critical here, so I want to once again caution the reader that this is what I ‘caught’ while listening in court and it might not be as accurate a report as I would like it to be…  In other words, I am doing my best – but my best is far from perfect and I know and acknowledge this!  If you have information to ‘firm up’ or correct my reconstruction of the timeline, please, do so – I would love to have a better record than I do!)

Jonathan Kay wrote an article for the National Post about Mr. Warman.  It was linked to, acknowledged and re-published on the Free Dominion forum on March 4th, 2008.

Mr. Warman thought the article defamed him and sued the National Post and Free Dominion (FD) for defamation.  Not being in the business of defending civil liberties, National Post settled out of court, giving Mr. Warman some level of copyright over the article (Kw).

Once Mr. Warman had that copyright control, he demanded that FD take down the article – which they complied with, right away.  However, since Mr. Warman was suing them for defamation because they republished the article, they retained a copy on their server –not linked to the outside in any manner – for the purposes of their legal defense in the defamation suit.

The Fourniers claim they retained this copy on their server for the purposes of their legal defense and that since it was not publicly accessible, it does not constitute re-publishing.  Moreover, they claim that by attempting to deprive them of this copy, Mr. Warman is attempting to use the copyright laws to deprive them of the materials they need to defend against his defamation lawsuit against them in a different court.  If this were so, it would, I suspect, be some sort of legal misconduct…

Mr. Katz said they withdrew their demand that the Fourniers get rid of this copy – provided only their lawyer retained it, for the purposes of their defense…and the Fourniers had pointed out that Mr. Warman had forced them to go to court just to be able to retain materials essential to their defense in another court case…  Mr Katz asserted (and I am paraphrasing to incorporate the words, the tone and the body language) that the Fourniers are just dumb bumpkins who aren’t smart enough to understand the law, which is why they think that Mr. Warman is trying to deprive them of evidence to use in the defamation suit:  silly bunnies, those Fourniers!!!

The second part of this bit revolves around some crucial timing.  The article was posted of FD in March 2008.  Mr. Warman filed the copyright infringement suit in May 2011:  which is more than the 3 year statute of limitations from when the article was published or when the complainant ‘ought to have known’ it was published.

Since Mr. Warman filed a defamation suit against the Fourniers when they re-published the article, there is little question about when Mr. Warman knew about the publication:  March 2008.  However, he did not get the copyright to the article until later.  Yes, he got the control over it within the 3 year ‘filing window’, but the time he actually filed was outside of this:  from the date of publication, that is.  However, he did file within 3 years from the date when he got control over the article…

So, the judge will have to decide if the clock starts running from the date of publication (or when the complainant ‘ought to have known’) or from the date one gets control over the copyright. (This mess would have been avoided had Mr. Warman filed within the  year window from the date of publication, because he did get copyright control during that bit.)

If the judge decides the latter, he will then have to decide whether the Fourniers complied with the take-down order quickly and properly enough…

Now, here is a fascinating legal wrinkle!

Mr. Warman had entered the full Kw article as an exhibit in his defamation lawsuit.

There is something called ‘The Open Court Principle’:  in order for justice to be done and just as importantly, to be seen to be done, our court proceedings are (with some exceptions) open and transparent.  All exhibits in any lawsuit, once submitted, can be reproduced for the purpose of news reporting and are fully accessible to the public.

Once the Kw became an exhibit in the defamation lawsuit, it became a publicly available document.

Therefore, once the Fourniers took down the original Kw, they replaced it with scanned pictures of the court exhibit ‘R3’ in Mr. Warman’s defamation suit against them – the Kw, but with each page stamped with the ‘R3’ stamp indicating it is a properly registered court document/exhibit.

Mr. Warman claims that this constitutes re-publishing of the original article and is therefore a breech of his copyright.

The Fourniers claim that it was a publication – for the purposes of reporting news – of a publicly available court document and that it therefore does not fall under copyright protection, based on the ‘open court principle’.

Mr. Warman asserts that they could have paraphrased and used excerpts:  the Fourniers countered by saying they wanted to demonstrate the authenticity of the court document, so they had to reproduce it in its entirety, court stamp and all.  Plus, with several outstanding defamation suits against them by Mr. Warman, paraphrasing the article seemed like a very foolish thing to do…

To sum up:  Mr. Warman charges that the Fourniers have violated his copyright on the Kw three times:  by original publication, by reproducing the court document and by storing a copy on their server.

He demands $7,500 per each violation in damages plus another $5K in punitive damages.  Plus court costs…

The Fourniers are defending themselves by saying that they complied with the original takedown order right away – and that anyway, Mr. Warman had filed the lawsuit on that grounds after the permitted period, so it is not a valid claim on either of these two grounds.  They kept a copy, not publicly accessibe (thus ‘not published’) on their server for the legitimate purposes of legal defense and that by trying to deny this to the (and forcing them to defend it in court), it demonstrates an attempt by Mr. Warman to abuse the legal system.

The third count is regarding the publication of the same Kw article – but as a copy of a legal exhibit (and thus open to the public) under the ‘open courts doctrine’.  Mr. Warman (through his lawyer) claims that the court documents are available for personal use or publication by news sources, but are not permitted to be re-published by just anyone.

The interesting bit here (for all of us, bloggers, anyway) was that the judge had asked Mr. Katz if he thought that, say, ‘The Globe And Mail’ (a Canadian legacy news medium) would be operating within the ‘open courts’ principle if they were to re-publish the Kay article/court exhibit in its entirety.  Mr. Katz answered that yes, that would indeed be an acceptable ‘fair use’ publication of the article under the ‘open courts’ principle.

So, it seems to me, the judge here will have to decide whether legacy news media have rights superior to those of the modern news media, like citizen-blogs and fora.  There is significant amount of already existing jurisprudence in Canada that suggests that the two must indeed be treated equally…

But, we shall see what the judge decides!


(My apologies for the length of this post – the issues are both complex and important!  Thus, I beg your indulgence…)

Issue #3: ‘the photo’/hyperlinking

Somebody took a picture of Mr. Warman.  Mr. Warman displayed the image on his own website (i.e. stored on a server under complete and total control of Mr. Warman).

A person participating in an FD forum discussion imbedded a hyperlink to this image inside his comment.

This particular hyperlink actually showed a thumbnail of the image if a person moused over it.

(The nature of various types of hyperlinks and their differing/similar legal implications was discussed at great length.)

As people replied to this comment, the original comment (and thus the hyperlink inside it) was reproduced several times on the FD forum.

Mr. Warman claims that the hyperlink ‘authorizes communication’ and therefore this constitutes re-publishing of the image.  When asked by the judge for legal cases that support this assertion, Mr. Katz was unable to provide any.

The Fourniers cited legal precedents that clearly state that ‘authorizing communication’ does not equal ‘communicate’.  To the contrary, they cited a number of legal precedents that state that the communication only occurs from the server on which the image is stored.  Which was Mr. Warman’s server…

They pointed out that Mr. Warman only sought to acquire the copyright over the image after the hyperlink appeared on FD – for the sole purpose of suing them, not because he had suffered any damages.

Plus, they point out, Mr Warman had full control over the image:  if he did not wish the hyperlink to display the thumbnail, he could have

  • moved the image to a different URL
  • substituted a different (or no) image to this URL
  • set the filter on his website to not permit hyperlinks

These were all remedies available to him and under his full control – yet he chose not to exercise them and to use the courts instead in order to put the Fourniers through a costly and stressful legal action.  This demonstrates his bad faith and intentional abuse of the system…

Issues # 4 and 5:  Abuse of Process and bringing the Justice System into disrepute…

These bits were raised by the defense:  the Fourniers claimed that their exhibits demonstrate that Mr. Warman intended to use the legal system as a toll to bully and financially ruin his political opponents and that his actions (and, perhaps, some ‘games’ by his lawyer) bring the Justice system into disrepute.

Ms. Fournier cited over 60 lawsuits Mr. Warman had filed against people whose political views he disagreed with, in addition to all those ‘Section 13’ of the Human Rights Cases he filed, demonstrating his penchant for serial-lawfare and his use of the courts as an instrument of political censorship.

She cited his ‘maximum disruption’ doctrine…  This was one of the funny bits:  apparently Mr. Warman had said that he is not using the ‘maximum disruption’ doctrine against the Fourniers because he only uses this against neo-nazis, and he openly recognizes that the Fourniers are no neo-nazis!

Of course, that is a nice recognition by him, but…

Ms. Fournier pointed out that this line of defense by Mr. Warman is a no-starter:  it would be like punching a brunette in the head, then offering the defense that he could not have punched the brunette because he has a strict policy of punching only blondes in the head…

The judge said he had the written submissions on this and would make his mind up based on that.

Now, we await the judgment with bated breath!!!

Correction 1: Both ‘The Warman Work’ and ‘The Kay Work’ were submitted as court exhibits by Mr. Warman in other cases and had been reproduced as such, which I understand that the  Fourniers believe is protected under the ‘open courts’ principle.

Correction 2:  The ‘picture’ was linked to from the Free Dominion site not using a thumbnail, but using a regular html hotlink which poits to the picture on Mr. Warman’s server.

UPDATE:  Welcome Free Dominion readers!

Here is Mark Fournier’s comment on yesterday’s court proceedings.

Welcome to your life…

TorrentFreak: BitTorrent Piracy Boosts Music Sales, Study Finds

What sets this academic study apart from the rest?

Larger sample size and more accurate data.

The music industry claims that albums which are leaked prior to their release cause them the greatest financial loss:  this study demonstrates that this is simply not true:

‘However, according to the research, sales may actually be hurt by going after these [file sharing] sites. Hammond’s findings suggest that piracy itself acts as a form of advertising similar to radio play and media campaigns, where more downloads result in a moderate increase in sales.’

Let’s not hold our breath hoping for the recording industry will admit its error…

The Church of Kopimism

Belief in the moral goodness of file-sharing is now protected, just like any other religious creed, as the Missionary Church of Kopimism becomes an officially recognized religion.

In Sweden – for starters.  From their website:

* All knowledge to all
* The search for knowledge is sacred
* The circulation of knowledge is sacred
* The act of copying is sacred.

(Though not recognized as an official religion in Canada, their Canadian site is here.)

Please,  share the video of the first Kopimist wedding:

As big business and big government continue to merge into one corrupt pile of steaming dung, freedom of speech will continue be curbed by commercial laws as much as by any others:  it is now that we must recognize that the very concept that ‘ideas’ – in any form – may be ‘owned’ is outrageous,  immoral and indefensible.  It is precisely in order to protect our freedom of speech that we must fight against any attempt to limit the freedom to spread ideas and information freely.

We do not make up our minds about ‘things’ based on facts – we can only make up our own minds up based on the facts we know – on the information available to us.  Without free, unfiltered access to informtion and ideas – all ideas – we are robbed of the very capacity to think freely.

Though I generally see religions (theistic or not) as intrinsically evil, I hope this new religion will be a useful tool in this war!