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’.
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).
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.