The couple who is leading the legal fight for the freedom of the internet in Canadian courts was recently interviewed on the ‘Just Right’ radio program.
The couple who is leading the legal fight for the freedom of the internet in Canadian courts was recently interviewed on the ‘Just Right’ radio program.
Jay Currie raises some very important questions – ones everyone ought to demand answers to:
… In other words, the nature of her job meant that she did very much the same sort of thing as her husband except, of course, she was prosecuting actual internet criminals under the Criminal Code. (And good for her say I.)
However, it does raise some interesting and, I suspect, important questions. First, did Mrs. W. have a computer at home for work or simply because she was a wired up kinda gal? Second, did the Warmans trade tips on how best to engage their respective prey? Third, why have none of the defendants in the assorted Cools related defamation cases sought to examine Mrs. W’s computer (assuming, rather plausibly, she had one) to determine if hubby might have been using it as a back up/cut out machine? …
I’m afraid I am nowhere as nice and generous as Jay Currie….
The questions that get raised in MY mind are much more sinister: did Richard Warman subvert his wife’s integrity by his ideas and methods?
After all, he is on record as saying that people who are actively evil, people who commit crimes and are hateful, ought to be treated the same way as his political rivals and/or people whom he simply finds ‘annoying’ – like Connie and Mark Fournier of Free Dominion – and that ‘maximum disruption’ methods ought to be used to make their life a living hell!
Now, this is all bad and tragic when it occurs in the civil courts sphere and downright despicable when it occurs in the ‘Human Rights Commission/Tribunals’ sphere…but people know that these are the ‘softer’ courts.
But – what if Warman has convinced his wife to apply his tactics against people in the criminal courts?
After all, if she loves him, shares a child with him and continues to be married to him, she must – on some level – respect him as a person, with all that he does.
And if she respects him as a person, she must not think his professional conduct is in any way ‘wrong’/'immoral’/'unethical’…
Richard Warman believes it is justifiable to use any methods to persecute and discredit his political opponents, in what he terms ‘maximum disruption’ doctrine.
Mrs. Warman prosecutes pedophiles.
Any accusation of pedophilia, even without a conviction, is enough to ruin peoples’ lives and careers in so many intangible, non-provable and thus non-prosecutable ways…
How can we possibly be sure that his wife is not just another tool in Richard Warman’s arsenal to discredit his political opponents?!?!?
Please, do think about it…
In today’s world, individual civil liberties are consistently being eroded, bit by bit, from all sides.
Religious an ethnic minorities demand special group rights, only to then use these extra powers to oppress minority voices within their community.
Corporations with well-funded lawyers and lobbyists are subverting the patent and copyright law infrastructure to erode individual customer rights to an unprecedented degree.
Even though these all seem like separate issues, they all have one thing in common: slowly but certainly, they are stripping us of our rights. We must fight all these assaults, as best as we can.
And, there are brave and strong people among us who are indeed standing up and fighting for our rights. The one tool we must not loose, the one without which we will be completely unable to defend ourselves, is freedom of speech. Anonymous speech is an essential component of freedom of speech, both on city streets and on electronic super highways!
Mark Cuban and Notch have recently each donated quarter of a million dollars to EFF to help protect our freedom on the internet. Mark Cuban even went as far as to establish ‘The Mark Cuban Chair to Eliminate Stupid Patents’!
Here, in Canada, Connie and Mark Fournier are fighting the same fight, though in a slightly different manner – and more and more of us are beginning to understand the importance of the legal precedents they are setting in this most worthy battle.
Today, a motion hearing in the case of Warman v. Free Dominion and John Does was held in Ottawa. Connie Fournier has written up her account of today’s hearing here.
I have reported on this case in the past. If you are unfamiliar with it, here is a quick summary (simplified and the way this all appears to my untrained, layman’s eye, to the best of my highly limited understanding):
Richard Warman is suing Free Dominion and its founders/operators, Connie and Mark Fournier, and several of the posters on the forum Free Dominion (the ‘John Does, two of whom have still not been identified) for posting things online about him that he does not want people to post online.
It’s kind of hard to keep the details straight because this is not the only lawsuit Mr. Warman has brought against the Fourniers and Free Dominion (FD).
And, FD and the Fourniers are not the only ones who are being sued by Mr. Warman – he has filed tens of lawsuits against many conservatives in Canada in what his targets believe are attempts to silence political debate in Canada.
This particular lawsuit has been going on for five or so years…so far!
The last time there was a hearing in this case, the judge gave both sides until the end of January 2013 to file any amendments to their pleadings (i.e. improve their arguments, which they have to adhere to when they argue their case in court). Still, whenever an amendment to pleadings is made, the other side has to see the changes, so they may address them and therefore submit corresponding little changes of their own.
So, whenever one side makes changes to their pleadings, the other side gets to see them and either agree to the changes or argue in a ‘motion hearing’ why these changes should not be allowed – and why.
Warman’s lawyer had submitted some changes to their pleadings and the Fourniers and their lawyer did not contest them. However, when the Fournier’s and their lawyer submitted some changes of their own (some as a response to the changes from Warman’s side and some of their own) Warman’s side refused the changes and forced this motion hearing to decide which, if any, of these changes will be permitted.
And that is what today’s court session was about.
I arrived at Ottawa’s Elgin St. courthouse nice and early and headed to Courtroom #35, where this motion hearing was being held. Since I have last been there, they have added nice new little boards beside the door to each courtroom, where a lit sign informs you whether the court is in session. Below that there are special bits where sheets of paper can be affixed which inform you of all kinds of things, including what cases are scheduled to be heard there, who is the judge hearing them, and so on. In the past, these announcements were simply stuck to the wall beside the courtroom door with sticky tape – this looks much fancier and very professional.
The information posted on the new fancy board let me see that today, the 3rd of January 2012, civil motions including the Warman v. FD & John Does will be heard by Justice Toscamo Rocammo.
Connie and Mark Fournier arrived smiling and full of confidence, with their lawyer, Barbara Kulaszka following them shortly. Just as we were entering the courtroom, Richard Warman (in a stark black suit, starched white shirt and shiny silver tie) arrived – on the heels of his lawyer, the ever charming James Katz. (I am sad to report that Mr. Katz is still clean-shaven and has not returned to wearing his distinguished-looking beard.) Both were smiling and though Mr Warman was busy studying his shoes as he passed me, he offered me a polite greeting.
The courtroom itself was very quiet and as we entered, we all automatically adopted very hushed tones.
Mr. Warman’s side was seated on the left (as one would reference it when just walking through the doors in the back wall of the courtroom). Mr. Warman seated himself with his lawyer at the front (the tables from behind which the lawyers plead their case) while the Fourniers sat further back, on the spectator benches, letting their lawyer Ms. Kulaszka sit at the table by herself. The courtroom itself was large, with a glass prisoner box in the centre and a spacious jury seating at the front right, at right angles to both the judge and the litigants/spectators.
In addition to the above-mentioned participants and a smattering of spectators (yours truly included), there were two more people present during the proceedings – but they were participants in a motion hearing for another, quite unrelated case, which was also being heard this morning.
At 10 o’clock, the (presumably) judges clerk came in and announced that as the judge was quite tied up this morning, we may have to wait for a while before the hearing would begin. By this point, the tension in the room was palpable and the hushed tones became even softer….to the point that I realized that the pen I had taken out to take notes with (and with which I was drawing nervous doodles while waiting) was exceptionally loud and I scrambled to find another, less noisy one. That’s how thick the atmosphere was!
At 10:07, the bailiff came in through the door at the judges’ end of the room, ushered in a young, dark haired mystery woman and seated her in the spectator gallery directly behind Ms. Kulaszka.
At 10:20, we rose and Madam Justice Toscamo Rocammo herself entered, the traditional black judges’ robes with a bright crimson sash billowing about her slender frame. Her dark hair was cropped in a shapely cap and her gaze was sharp and penetrating. She positively bristled with energy and intelligence.
I am not knowledgable in what is ‘usual’ behaviour for judges, having only spectated in a handful of cases. However, Justice Toscamo Rocammo’s behaviour was somewhat different from how I have seen other judges behave – much more direct and very refreshing.
She informed us that she had read through all the submissions and understood them. She also realized that their motion was set for 1 hour only and that if they (and I am strongly paraphrasing here) intend to haggle over every detail in every paragraph, this would – by far – not be enough time. She gave the lawyers a choice: pick a different date, when more time could be set aside for the hearing, or she could give them some guidance as to what parts of their respective positions were strongest and they could then focus their arguments accordingly, so we could get through it in that one hour.
This seemed to take both lawyers by surprise and they hummed and hawed a little bit, so the judge repeated her offers and then queried them again as to which way they’d like to proceed. Led by Ms. Kulaszka, both lawyers agreed that they would welcome the judge’s guidance and would like to hear her views on the case.
Because all the parties involved – the judge and both lawyers – were very familiar with all the facets of all the arguments, I can now choose to report exactly what was said in the sequence it was said, or I can jumble up the timeline a little and present the various points that were made in the point by point fashion, so that those of us who have not studied the full submissions would follow the points themselves…. I do hope you’ll forgive me, but I am going to choose the latter option because, to be perfectly frank, that’s the only way, with my limited layman’s knowledge, I think I can make it understandable.
1. Increased costs from additional discovery
If, at this point, the type of trial is switched from ‘by judge’ to ‘jury’, Mr. Warman’s side argued, this would necessitate that they do a whole new lengthy and costly ‘discovery process’, which is unnecessary and who should pay for it… Madam Justice made it clear she did not think a whole new discovery process would be necessary.
2. Jury Trial
The FD side was asking that instead of being heard only by a judge, they would like their case to be heard by a jury as well. The Warman side said that, 5-or-so-years into the trial, it’s a little late to request such a big change: there’d have to be a whole new discovery process and that is costly and time consuming and unfair and all that.
Justice Toscamo Rocammo said that whatever her own personal feelings may be, there is a legal precedent for situations of ‘late jury notice’, set in the case of Nikor v. Proper in 2010 (2010 ONSC 2307). The test that is applied in these situations is two-pronged:
2. Prejudice (is someone trying to get an unfair advantage)
She stated that the right to a jury trial is a very fundamental one and to vacate it, one must have a very strong argument.
The affidavit Mr. Katz had submitted to support his claim that the request for a jury trial be denied was, in her opinion, unsupported and unsupportable. She told Mr. Katz that his case ‘has frailty in the second prong of the argument’, while Ms. Kulaszka’s argument ‘is good’ and strong.
Madam Justice pointed out that this case was getting ‘long in the tooth’ and that, from her reading, both parties bear a partial responsibility for this but that. And, some cases are complex and they do need the time to sufficiently address all the facets of the case. However, (and here, I am very strongly paraphrasing) since the previous judge had given both parties till the end of January 2013 to file any amendments (such as this), she does not see why the counsel did not simply agree with this and forced a hearing to be held at all. It is my impression that she considered it a disrespectful waste of the court’s time and of everyone’s money…
3. Increased time for cross-examination
Both sides were asking for a 2-hour increased cross-examination time on the witness stand – to address all the amendments and changes that were made… I must honestly admit that if Madam Justice addressed this point at this time, it escaped me.
* * *
However, she did offer the counsel on both sides to go, sit down somewhere for 30 minutes (while she’ll begin hearing the second case). Then, they could come back and inform her that they had reached an agreement (a choice I somehow sensed she strongly preferred), if they will make the shortened arguments or if the case should be re-scheduled for a full hearing at a later time.
Now she did something I have never seen another judge do, either. She turned to us, the spectators, and asked if we were there concerning this or another matter!
I must admit, I was not sure how to answer the question correctly: does she mean if we are there in some sort of an official capacity with one party or another, or what…. My face must have shown my confusion clearly (I am NOT fast on my feet, thinking like this….). Luckily, Connie Fournier came to the rescue and informed the judge we were there for that case, so the judge thanked us and gave us a chance to leave the courtroom.
I waited in the hallway outside the courtroom while the litigants found an open room where they could discuss things in private.
At 11 o’clock, both sides returned, smiling, and we went back into the courtroom… As the last of us made our way in, Madame Justice was already discussing things with Mr. Katz and Ms. Kulaszka.
The two lawyers had informed her that they had indeed come to an agreement on the majority of the issues:
The only thing that was still in contention was the FD request that Richard Warman should also be cross-examined for 2 more hours – something Mr. Warman was not willing to agree to.
So, there was a bit of back-and-forth on that as the judge asked some very focused questions on this matter.
The judge said that if Ms. Kulaszka could demonstrate to her that she needed the additional time to cross-examine Mr. Warman as a result of ANY of the changes he had submitted to his pleadings, she would allow it. At this, Ms. Kulaszka bowed he head low and her short reply was in a voice so soft, I could not hear her words in the spectator seats.
Madam Justice replied to her that since Ms. Kulaszka wanted the additional time for something ‘she could have asked earlier, but did not bother to’, she would not allow the extended time for the cross-examination of Mr. Warman. A setback, but a relatively minor one!
All sides agreed that this will all be filed and formalized by the end of the day – and the hearing concluded!
As we were were departing, Madam Justice Toscamo Rocammo once again turned to us in the spectator gallery and thanked us for coming and participating in the process.
What a judge!
Outside the courtroom, I congratulated the jubilant Fourniers on this major victory, which puts them into a better position when the main trial itself will take place, likely in early September 2013.
Tomorrow, January 3rd, 2013, Mark and Connie Fournier from Free Dominion and John Does will again be at the Elgin St. (Ottawa) courthouse in yet another motion hearing in the lawsuit brought against them by Richard Warman.
Whether you’d like to support them or if you would just like to observe lawfare at work, come on down. Other cases permitting, the ball should get rolling around 9 am.
This case has already set legal precedents in the field of internet privacy which are being cited in Canada as well as in the USA, so it is worth it to keep our eyes on this one!
From the Free Dominion site:
by Connie Fournier » 10/ 02/ 12 8:02 pm
In an assessment decision filed yesterday costs were awarded against Richard Warman and the National Post for their loss in the Federal Court copyright case. They owe us $7,230.44.
Although this is a drop in the bucket considering what Maximum Disruption has cost us, it is a very substantial award for self-represented litigants, and we are thrilled with this decision!
Read the reasons here: http://www.freedominion.ca/images/Asses … easons.pdf
Connie went against some of the most expensive lawyers money can buy – and won!
Jewish Defence League Fundraiser for Marc and Connie Fournier of Free Dominion
Monday July 9, 2012, 7:00 pm——9:00 pm
Toronto Zionist Center, 788 Marlee Avenue
Marc and Connie Fournier run the site Free Dominion. They have been sued several times by people who want to limit free speech on the Internet. They are certainly not rich. These suits could affect everyone of us who write or comment on the Internet. It’s time to help the Fourniers fight suits from people that promote ‘Israeli Apartheid Week’ and the Muslim Brotherhood. Now is the time to fight back.
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
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!
I knew a guy who claimed that within his lifetime, held four ditinct citizenships. At different times, he was an Austrian, Czechoslovak, Slovak and Hungerian – he even held Hungarian citizenships at two separate times!
Yet, he never moved!
Simply, his house happened to be on a bit of land that was held by different countries at different times, all while he lived in it…
This is the reality of human existence.
As nations come into and out of existence, as they jostle with each other for territory, this sort of thing is inevitable.
Now, imagine that all these countries which had a prior ownership claim went to, say, the EU and demanded that this land be returned to them, due to the fact they held it in the past and, even if another country usurped it, they had never really given up their claim to it: it would be a mess!
In fact , it would be exactly the same sort of mess as the multiple land claims being made by various native groups over land in Ontario and Quebec – including over the bit of land know as the Parliament Hill.
Just like in Europe, the various nations in North America occupied different areas at different times – as their fortunes waxed and vaned, so did their territory. Just like in Europe, at different times, the same land would be claimed by different groups. And, just like in Europe, territorial wars took place…
This just goes to show that this is a function of the human condition!
However, in Canada, the various Native groups can each make a separate claim on the same piece of land – a claim which the courts consider in isolation from competing Native claims over the same land. And, just as they each had a valid claim on the land at different times, each claim can be supported by some evidence.
Yet, since each claim is examined separately, the court cannot take the competing claims into accout. In effect, this causes the Canadian taxpayers to buy the land (settle the claims) over and over and over… No sooner is one claim settled than another one crops up.
To call this a highly flawed system is a serious understatement.
How to solve this in a way that is fair and equitable to the Native groups with land claims as well as to the Canadaians who hold legal title to the land and have invested their life savings into a home on this land?
How to solve this in a way that is fair to different Native groups making conflicting claims, when their claims would be considered at different times and under differing political conditions?
We do have the Assembly of First Nations – resolving land claims is one of their major ‘raison d’etres’:
The Assembly of First Nations (AFN) is the national representative organization of the First Nations in Canada. There are over 630 First Nation’s communities in Canada. The AFN Secretariat, is designed to present the views of the various First Nations through their leaders in areas such as: Aboriginal and Treaty Rights, Economic Development, Education, Languages and Literacy, Health, Housing, Social Development, Justice, Taxation, Land Claims, Environment, and a whole array of issues that are of common concern which arise from time to time.
The solution I propose would not be easy, but it would be simple and fair:
I suspect that this is the only way we could even come close to resolving this issue fairly.
Short of this type of action, I do not see any way to avoid protracted legal quagmire – in perpetuity!
CORRECTION: THE FOURNIERS WILL NOT BE BACK IN COURT LATER THIS WEEK. (I was confused by a header from an earlier email – my apologies for the my error.)
(Sad, isn’t is, that I have to specify which of the Warman lawsuits against the Fourniers this is about….)
This is the ruling in the motion to suppress a number of ‘things’ from the Fourniers’ defense statement in the lawsuit Mr. Warman is pursuing against them because he thinks that they have violated his copyright by:
OK, OK – I’ll not stretch the suspense out any longer.
It’s not the whole case – just this motion. But, it means that the trial lawyer will have the ability to weigh all the evidence and decide for her/his own self as to what is relevant and what is not.
So, this is a victory for justice!
Small victory, but victory none-the-less. Especially since Connie Fournier – a non-lawyer – went up against the smooth and charismatic Mr. Katz (without whose extraordinary lawyer skills most of Mr. Warman’s lawsuits would have been summarily dismissed as frivolous – in my never-humble-opinion) and won!!!
In that sense, it is big personal victory for the Fourniers.
Congratulations, Mark and Connie.
P.S. – The Fourniers will be in Federal Court in Ottawa again on Thursday, 3rd of November, 2011.
It has taken me more than a week to write this up – my apologies. I was hoping the decision would come soon and that I would be able to report it along with what I had witnessed in the courtroom.
This was a hearing for a motion in the lawsuit that Richard Warman is bringing against the Fourniers for infringing his copyright on 3 grounds:
The full background to this post is here.
The motion hearing was my first experience in Federal Court – so far, all my spectating has been done in Ontario Provincial Court. I must admit, the atmosphere is a bit different, the security a bit more along the lines of what one might expect. The courtroom, however, was not at all equipped for spectators: instead of the benches with built-in headphones (for translation, if the case was being tried in French), 10 office chairs were placed along the back wall of the courtroom, appearing more as an afterthought than anything else. Most of these were occupied by people waiting to present future cases – their particular type of grooming suggested they were lawyer-types and/or their aides. I would appear to have been the lone spectator on Courtroom #2 that October 6th morning.
The motion hearing was presided over by the Honourable judge R. Aronovitch.
Mr. Richard Warman was represented by the ever-charismatic Mr. Katz.
Mrs. Fournier spoke on behalf of herself and her husband, as they were representing themselves.
This was not a long hearing: each side made a short presentation of how they saw the situation and an even shorter rebuttal.
(As it is easier to follow what happened if I focus on each thread of the argument and follow it rather than report on the proceedings sequentially, I will jump back and forth in time in order to follow each ‘thread’.)
Mr. Katz was the first to speak; he was presenting the reason for this motion: Mr. Warman had filed the copyright lawsuit against the Fourniers and they had filed their statement of defense (OK – there are proper legaleese terms for these, but I am not trained in the law whatsoever, so, please, do not take what I write as anything more than an untrained person’s observations – and if you can correct me on some points I got wrong, please, I would be grateful if you did).
When the Fourniers filed their statement of defense, this document included some phrases that, according to Mr. Katz, were irrelevant and prejudicial – and which should, therefore, be removed from their statement of defense. If I recall Mr. Katz’s words correctly, their primary argument was that these paragraphs (named in the motion) are clearly not relevant and are simply character assassination of his client.
Mr. Katz asserted that some of the these paragraphs are describing actions of third parties and not those of Mr. Warman, others are simple hearsay and would better be addressed in the cross-examination rather in the submission. There was a little back-and-forth with the judge on the salient points of hearsay and cross-examination.
Mr. Katz also said that Mrs. Fournier had originally agreed to longer cross-examination time, then reneged on her word: Mrs. Fournier seemed surprised by this claim and said she is agreeable to setting the cross-examination time to whatever length the judge would like to specify.
The Fourniers’ main argument was that it was best left up to the judge who would preside over the lawsuit itself to read the evidence and then to decide what is and what is not irrelevant. Removing the offending paragraphs earlier would prevent the judge from making that decision – and this is why it should all be left in.
Mr. Katz said that the Fourniers were making claims that by bringing this copyright infringement lawsuit is somehow an abuse of judicial process, that he is being disingenuous and harassing them – when his client is only trying to protect his rights to the literary work (the article). He charged that it was not his client but the Fourniers who were abusing the judicial process by trying to have this motion dropped.
Mrs. Fournier defended their position by pointing out that Mr. Warman had initiated 64 lawsuits/actions similar to this one, several of these against themselves, many still under way. It was important to their defense to paint a complete picture of Mr. Warman’s activities related to these lawsuits/actions, including his openly and publicly stated desire to sue people he finds annoying.
(If I am not mistaken, the phrasing was somewhat along the lines that the more annoying Mr. Warman finds someone, or the more fun prosecuting them would be, the higher up his target-list they get moved up, regardless of anything else. However, the website which documented this quote, along with many other things related to Mr. Warman, has recently been shut down. This makes it impossible for me to verify the precise wording and reference it, as I normally would. My apologies.)
Without presenting this full picture, including speeches to radical and militant groups with history of lawlessness and violence, it is impossible to demonstrate how Mr. Warman’s current activities follow the pattern of ‘maximum disruption’ which he has publicly ascribed to himself – and which include the subversion of the courts to promote his own political agenda. (Again, I am paraphrasing, but this, to the best of my understanding, is the main thrust of the Fourniers’ argument.)
It is always difficult for lay people to represent themselves in court. As such, Mrs. Fournier explained that she put great weight to what the opposing counsel said. When he had sent them the notification that some parts of their statement of defense were inadmissible from a legal point of view, she gave it great credence. However, she thought it integral to their case to let the judge who will hear the case see all the evidence and decide for him/herself. Yet, she never doubted the opposing counsel’s word: which is why she was surprised to see that only some of the paragraphs that Mr. Katz had told her were inadmissible were no longer being objected to on these grounds. If they were legally inadmissible at one point, as he had advised her, why were they acceptable now?
At this, the judge leaned forward and asked for clarification: did Mrs. Fournier mean that there was a difference between what was originally asked to be removed from the record, and what was actually included in the final motion? Yes, that was it: only some of the phrases/paragraphs that were in the original motion to strike from the record were in the latest draft, others were no longer being objected to. This seemed to intrigue the judge – but I am not certain what the legal impact of this difference would be.
Mr. Katz did not, to the best of my recollection (and notes), address this point very clearly. There was another point which had been raised at that moment which seemed to occupy his attention: it was to do with costs and Mr. Katz’s role in them.
There is a rule (404, unless I am mistaken) which states that if the opposing counsel makes some mistake which ends up costing people money, then that opposing counsel must pay those costs. Not the client, but the counsel.
The Fourniers claimed that there was some sort of an irregularity in how they had been served with this lawsuit: an irregularity which cost them money and which was Mr. Katz’s fault. If I understand this correctly, this irregularity was also a subject of a complaint the Fourniers lodged with The Law Society of Upper Canada, the body which licenses lawyers to practice in Ontario.
Mr. Katz responded that the complaint was trivial and was dismissed without him having to even attend to it.
Mrs. Fournier disagreed with that, stating she had correspondence from the Law Society of Upper Canada which stated that they will only attend to the complaint based on what the judge’s ruling will be: if the judge will rule that the irregularity had indeed been Mr. Katz’s fault and awarded Fourniers financial compensation for the damages, they would look into the complaint. So, in her words, it was not dismissed but rather will either go forward or be dismissed, based on what the judge finds in the courtroom. Since it relates to the costs in the lawsuit, it will have to be the judge in this case whose opinion will determine how the complaint proceeds.
Mr. Katz was very focused on this part of the discussion, though he did not seem as cool and collected as he usually appears in the courtroom. He seemed downright anxious – and, who would not be, with such a serious charge against him? Once the topic of this irregularity and its consequences was brought up, he focused most of his attention and arguments in that direction.
This was a very interesting – if short – courtroom appearance. All was over by 10:20, less than an hour from when it started.
Mr. Warman charged (through his lawyer, Mr. Katz) that much of what was in the statement of defense was irrelevant and prejudicial and should be excluded from court documents. The defendants are abusing the judicial process by including inadmissible statements in their statement of defense.
The Fourniers defense had 3 parts:
All the evidence should be left in: if the judge decides it is irrelevant, it can be removed at that point. This decision should rest with the judge.
We certainly live in interesting times!