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Displaying items by tag: fair use

The Ontario Small Claims Court has issued a decision in a copyright dispute that is extremely unfriendly to users’ rights or the right to read in Canada. The case involves the increasingly common practice of placing digital content behind a paywall.

In this case, the defendant is the Canadian Vintners Association (CVA). It represents the interests of wine producers in Canada. The plaintiff is the company which produces Blacklock’s Reporter, a news service that provides original digital content to subscribers. The CVA was aware of Blacklock’s Reporter, but had decided that it was not interested in subscribing (at a corporate rate of $11,470 per year.)

On December 13, 2013 Blacklock’s published a story that discussed the testimony of the defendant’s president and CEO, Dan Pazsowski, before a Commons Committee. Pazsowski was sent an electronic bulletin notifying him that he had been quoted in the story. Since his company did not have a subscription to the service, he contacted a colleague at another company that did have a subscription and asked if they could forward a copy to him. They did so. He then contacted Blacklock’s to discuss the content of the story, about which he had some concerns. He was asked how he had obtained access to the story, and was later sent an invoice for the cost of two personal subscriptions (because he had shared the story with another employee of his organization). The cost of two subscriptions was $314 plus HST). The defendant’s refusal to pay the invoice ultimately led to the law suit for breach of copyright.

In reaching his decision in this case, Deputy Judge Gilbert was particularly concerned with the fact that the defendant had not complied with the terms and conditions of the plaintiff’s website. However, the website was not the source of the material that was allegedly improperly accessed by Pazowski in this case. The article was shared with Pazsowski by a colleague who had a subscription. If the terms of use of that person’s contact with Blacklock’s prohibited her from sharing any content, then she may have been in breach of her contract. This, however, does not mean that Pazsowski infringed copyright. Receiving and reading a copy of an article sent by another person is not per se copyright infringement.

Judge Gilbert also found that the defendant had unlawfully circumvented technical protection measures in order to access the material in question, in contravention of controversial new provisions of the Copyright Act. It would seem that, in the eyes of the court, to ask someone for a copy of an article legally obtained by that person could amount to a circumvention of technical protection measures. If such an approach were accepted, the scope of the anti-circumvention provision would be disturbingly broad. In fact, in this case, nothing was done to circumvent any technological protection measures. The article was legally accessed by a subscriber. The issue is with the sharing of the content by the subscriber with another, in contravention of the terms of use agreed to by the subscriber.

The defendant had asserted a fair dealing defence, arguing that he had sought access to the article out of concern that it contained inaccuracies that he wanted to take steps to correct. This was argued to be fair dealing for the purpose of research or private study, which is permitted under the Copyright Act. Notwithstanding the very broad scope given to the fair dealing exception by the Supreme Court of Canada, Judge Gilbert ruled that there was no fair dealing. He wrote: “it cannot be said that the purpose here was genuine given the fact that nothing came of the research (obtaining the full article) once obtained. Giving the Defendants the benefit of the doubt here that the intention was genuine, the follow through was not.” (at para 57). This novel proposition suggests that research must result in some concrete or tangible outcome to amount to fair dealing. As any researcher knows, there may be many false starts or cold trails. In any event, the court seems to overlook the fact that Pazowski actually contacted Blacklock’s to discuss their article with them. It was this contact that led to the lawsuit. Justice Gilbert also rejected the fair dealing claim on the basis that the article had not been legally obtained. This, of course, is a significant fair dealing issue in the context of paywalls and other barriers to access to works. Given, however, that Pazowski obtained the article from someone with legal access to the database, there was room here for a more nuanced assessment.

If the decision itself is not enough to raise your eyebrows, then the damage award surely will. Keep in mind that the plaintiffs originally sought the price of two personal annual subscriptions as compensation for the access to the article by the defendant ($314 plus HST). The court ordered damages in the amount of $11,470 plus HST – the cost of a corporate annual subscription. Judge Gilbert cited as justification for this amount the fact that the defendants “continued to stand steadfast to the notion that they had done nothing wrong while knowing that they had taken steps to bypass the paywall.” (at para 64). In addition, he awarded $2000 in punitive damages.

A business that is entirely reliant on providing content behind a paywall clearly has an interest in ensuring that access to that content is limited to subscribers to the extent possible. But does this mean that no other access to the content can be tolerated? A person who has legally purchased a book may lend it to another to read. Is there room for the law adopt an equivalent approach for content behind pay walls? It certainly does not seem appropriate that a news service can publish articles about individuals and then have the courts support them in their attempts to so securely lock down that content that the individual cannot even see what was written about them without having to pay for an annual subscription. This decision is so entirely lacking in the balance mandated by the Supreme Court of Canada that one can only hope it is nothing more than a strange outlier.


Published in Copyright Law

In 2007 Stephanie Lenz filed a law suit against Universal Music, alleging that it had violated the Digital Millenium Copyright Act (DMCA) by sending her a takedown notice that misrepresented the extent of their rights. Lenz had made a 29 second videotape of her two small children dancing to a Prince song (Let’s Go Crazy) on the radio and had posted the video on YouTube. YouTube contacted her to indicate that it had received a takedown notice for this video. The notice alleged that it infringed upon Universal’s rights in the song. YouTube removed the video from its service. Lenz sought to have the video reinstated using the provisions of the DMCA. Notwithstanding Universal’s resistance, the video was eventually reinstated by YouTube.

Lenz’s lawsuit (which was supported by the Electronic Frontier Foundation) stalled on the issue of whether the DMCA required copyright owners to take fair use into consideration before issuing takedown notices. On Monday, September 14, the U.S. Court of Appeals for the 9th Circuit issued its decision on this issue, clearing the way for the matter to finally head to trial. The Court ruled that copyright owners do indeed have an obligation to take fair use into account. In order to issue a takedown notice, the copyright owner must include a statement, pursuant to 17 USC § 512(c)(3)(A)(v) to the effect that “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.” The DMCA provides, in §512(f) that a party that abuses the DMCA by, among other things, materially misrepresenting “that material or activity is infringing”, is liable for damages.

The core issue for the court to determine was what meaning to give to the statement required by the DMCA that the copyright owner has a good faith belief that the material at issue is not “authorized. . . by law.” More specifically, the issue was whether the fair use defences in the Copyright Act are merely defences, or whether they are provisions capable of “authorizing” certain uses of copyright protected materials. The Court of Appeal found that “the statute unambiguously contemplates fair use as a use authorized by law.” (at p. 11) It ruled that fair use was only characterized as a defence for procedural purposes. The provision itself declares that “the fair use of a copyright work. . . is not an infringement of copyright.” (Note that in Canada, the fair dealing provisions are framed in a similar manner: “Fair dealing . . . does not infringe copyright. . . “.(see ss. 29-29.2 of the Copyright Act). The Court of Appeals also found that even if fair use were considered an “affirmative defense”, it would still have a different character. The Court concluded that because the fair use provision of the U.S. Copyright Act “created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification.” (at p. 15)

The Court of Appeal also turned its attention to whether Universal knowingly represented that it believed the video did not constitute a fair use of the copyright protected work. The Court was of the view that Universal had to establish a subjective (rather than an objective) good faith belief that the use in question was not authorized. The Court clarified that a copyright owner that formed a good faith belief that a use was not a fair use would not be liable under the DMCA for sending out a takedown notice. However, “if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification”, it will be liable (at p. 17). The Court also made it clear that any copyright owner who merely ”pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary” is still liable (at pp. 17-18). The consideration given to the fair use issue “need not be searching or intensive.” (at p. 18) The Court did not rule out the use of screening algorithms to detect potentially infringing content and even to meet the statutory requirement to consider fair use, although it did not consider the issue in detail as Universal did not claim to have used a screening algorithm in this case.

The Court also indicated that a “willful blindness” theory might be available to determine whether a copyright owner made a knowing misrepresentation of a good faith belief that the activity at issue was not fair use. However, on the facts before it, it ruled that the wilful blindness was not available. To show wilful blindness, a plaintiff would have to establish both the defendant’s subjective belief that “there is a high probability that a fact exists” and that the defendant took “deliberate actions to avoid learning of that fact” (at pp. 20-21) The Court found that Lenz had not met the threshold to establish the first element of that test.

On a final point, Universal had argued that Lenz’s suit must fail because she could not show that she suffered any monetary loss as a result of their actions. The Court of Appeals ruled that a plaintiff in Lenz’s circumstances could seek the recovery of nominal damages.

The decision of the U.S. Court of Appeals is significant. It is handed down in a context in which many feel that copyright holders have been abusing the notice and takedown provisions of the DMCA, effectively using them to suppress otherwise legitimate expression. The Court of Appeal had some strong words for copyright owners, warning them that they “cannot shirk their duty to consider – in good faith and prior to sending a takedown notification – whether allegedly infringing material constitutes faire use, a use which the DMCA plainly contemplates as authorized by the law.” (at p. 25)

Published in Copyright Law

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