Free Dominion and John Does won the right to have a jury trial!

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.

Governments are abusing powers given them for legitimate security purposes to spy on their own citizens.

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.

Wow!

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:

1.  Circumstances.

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:

  • Jury trial was on
  • All changes submitted by the FD side were in
  • Additional costs associated with any additional ‘discovery’ will be paid for by whoever loses the case
  • FD side agreed that Connie Fournier could be under cross-examination for additional 2 hours

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.

Five years and still in court…

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!

A public service announcement

‘He who must not be named on pain of a lawsuit’ (aka Richard Warman) is at it again:  this time, his target is Blazing Catfur.

BCF’s crime?

Linking to an article by Mark Steyn, in which Richard Warman was named…

Your help is needed!

Before it is too late and we are all silenced….

Ezra Levant: Section 13 update – Oct 3, 2012

Free Dominion: ‘ Richard Warman and National Post owe Fourniers $7,230.44’

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!

Well done!

Brian Lilley and John Robson on Free Dominion & Freedom of Speech

OK, John Robson is as close to a genius as it gets – in non-science fields, that is…

Thomas Sowell is even closer – he is as close to divine as you can get without having to surrender your ‘atheist’ identity!!!

Help the Fourniers pay their legal costs:  if you are reading this over the internet, you are benefiting from the legal fights they have already won…

The Free Dominion Fundraiser

What is the cost of freedom?

Many have bought it for us, their descendants, with their lives.

Still, in our everyday life, most of us do not have to ask ourselves just how much of our income we would be willing to spend to protect our freedom of speech – in the public square as well as on the internet.

But, not everyone has that luxury.

Consider the case of Costance and Mark Fournier who run the Free Dominion forum.  They have become targets of a serial suer, Richard Warman, and his minions.

From setting a legal precedent for protecting online privacy to proving that linking to online content does not constitute copyright infringement, they have done it.  And more.

They have had to decide if they should comply with what they considered to be abuse of our (or, their subscribers) civil liberties or if they are willing to pay the money to defend themselves in a lawsuit after lawsuit after lawsuit…

If you hang out on the internet and comment on things or click on links, you are directly benefiting from the battles the Fourniers have fought and paid for on behalf of all of us!

(And not just in Canada – because of the related nature of our legal systems, Canadian legal precedents are quoted and considered in US rulings and vice versa….after all, we are all children of the Magna Carta!!!)

Yes, the Fourniers are just celebrating a victory in a lawsuit where they had to represent themselves.

Yet, they are still facing more lawsuits against them!

They have launched a fundraising campaign to replenish their war chest.

All of us who love the freedom we enjoy on the internet, we need to ask ourselves:  as smart as Connie Fournier is, do we really want a layman or a professional lawyer to argue cases that will decide what we may and may not do on the internet?

Give generously, please!

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.

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.

Mark Lemire and Section 13: report from Federal Court hearing on 13th of December, 2011

Free Dominion has a discussion with several reports about the Tuesday hearing in Federal Court in  Richard Warman’s ongoing case against Mark Lemire, which has run into a snag:  the question whether Section 13 of the Human Rights Code (the thought-crime section) is Constitutional or not.

Connie Fournier reports that the cast was large:  from CCLA and BCLA to Doug Christie on stage, from BigCityLib to free-speech bloggers in the audience.  Here is a little quote from her report:

“During this time, the judge listened intently and didn’t interrupt. His face was inscrutable. The funniest moment of the hearing came when the lawyer for B’nai Brith said that Section 13 is “a ringing endorsement of free speech”. Everyone in the audience snorted and snickered uncontrollably. (Probably only one person in the audience was a censor and the rest were free speech supporters or media).”

An excerpt from Narrow Back’s  report:

“At 11:00 we returned to hear from the African Legal Clinic. They talked about “irradicating discrimination” for “deeper social concerns” “improvement of the condition of less fortunate people” blah blah, etc. They also talked about S13 as a “conciliatory process”. I just wrote down: “Ha!” “

And here is a part from Mark Fournier’s post:

“A couple of intervenors in favour of state censorship put in their two cents and then Richard Warman got up and complained that just because the CHRC did a terrible job of administering Section 13 his rights shouldn’t be violated. The irony was breathtaking.”

Read the whole reports – along with what people are saying about it – at Free Dominion!