A Federal Court ruling allowing federal managers to share Blacklock’s passwords without payment or permission is “riddled with mistakes,” one of Canada’s foremost internet law experts said yesterday. Barry Sookman, senior counsel with McCarthy Tétrault LLP of Toronto, said all internet publishers are left to question if they have legal protection against “Government of Canada subscribers” who overstep property rights.
“It is clear the recent Blacklock’s Reporter case is riddled with mistakes and many of its findings are open to significant doubt,” Sookman wrote in a 15-page commentary. “This is a case that cries out for appellate review.”
“The Blacklock’s Reporter court decision could leave online news services scratching their corporate heads asking whether after this decision they have any legal protection against subscribers, and especially Government of Canada subscribers, disavowing online subscription terms,” said the Critical Commentary Of The Blacklock’s Reporter-Parks Canada Decision.
Sookman, previously an adjunct professor at Osgoode Hall Law School, has frequently testified at Commons committee hearings as an expert on property rights. He is author of an eight-volume work on internet law.
Department of Justice lawyers on May 31 won a judgment upholding the sharing of passwords to paywalled media content. The ruling came in a Blacklock’s lawsuit against Parks Canada after the publisher discovered managers ignored repeated warnings and “plainly visible” terms and conditions against password sharing without payment or permission.
Made A “Mistake”
Evidence showed Genevieve Patenaude, a Parks Canada manager, bought a single Blacklock’s password at $148, the rate charged at the time, then emailed it to co-workers “if you ever need to access any Blacklock’s article.” At least nine people are known to have received a free password. Parks Canada had 2,160 employees.
The Federal Court ruled while Patenaude made a “mistake,” Parks Canada had a “legitimate business reason” to read Blackock’s without paying the same fees as other licencees charged up to $11,470 a year. Parks Canada and the Department of Environment at the time budgeted more than $282,000 a year for monitoring other media, records showed.
“In essence the decision found that for the payment of $148 the entire agency received a license to copy and distribute Blacklock’s Reporter articles within the agency to any interested individuals and to other interested departments,” wrote Sookman. Any “application of sound commercial principles would strongly suggest that for a mere $148 the agency did not have a ‘bulk license’ or ‘institutional license’ to copy and distribute Blacklock’s articles,” he added.
The ruling was “flawed,” “inconsistent” and “difficult to follow and untangle,” “riddled with mistakes” and contained “many legal frailties” including a “nonsensical and unreasonable” interpretation of terms, wrote Sookman: “It misconstrued Blacklock’s terms and conditions, came to the conclusion they were binding on Parks Canada but then decided the case as if they were not binding.”
The deadline to file an appeal expires at month’s end. The current ruling if unchallenged would “create precedents which undermine news services,” wrote Sookman.
By Staff 
