Canadian Judge Says Asking For A Copy Of A Legally-Obtained But Paywalled Article Is Circumvention

from the and-will-cost-you-$10,000-in-damages dept

One of the worst ideas that the copyright maximalists have managed to foist on the world is that there should be anti-circumvention laws forbidding users from doing a range of entirely sensible things with their own possessions, simply “because copyright”. Required by the WIPO Copyright Treaty, and implemented by the DMCA (pdf) in the US, and Copyright Directive in the EU, anti-circumvention laws have reduced people in the US to begging for permission to unlock their mobile phones, or to check whether software in their car is lying about emissions. In the EU, they are not even allowed to beg.

If anyone had any doubts about the inherent ridiculousness of anti-circumvention laws, they might like to consider an extraordinary decision by a judge in Canada, reported by Teresa Scassa on her blog. It concerns a certain Dan Pazsowski, who was quoted in an article published by a news service called Blacklock’s Reporter. When Pazsowski heard about this, he naturally wanted to find out more:

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).

His refusal to pay the $314 (Canadian — about US$240) plus HST (Harmonized Sales Tax — a value-added sales tax) led to a lawsuit alleging breach of copyright. Despite the fact that Pazsowski had simply asked a colleague for a copy, the judge in the case took a very dim view of the matter:

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 [Canadian] 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.

The judge returned to the issue of circumvention when it came to awarding damages (all figures in Canadian dollars):

the plaintiffs originally sought the price of two personal annual subscriptions as compensation for the access to the article by the defendant ([CA]$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.

So, for requesting a copy of an article that was legally obtained by a colleague from a paywalled source, Pazsowski found himself hit with around US$10,000-worth of damages. This completely disproportionate punishment for what is at most a minor case of copyright infringement is a perfect demonstration of where the anti-circumvention madness leads.

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Comments on “Canadian Judge Says Asking For A Copy Of A Legally-Obtained But Paywalled Article Is Circumvention”

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64 Comments
That One Guy (profile) says:

"Refuse to plead guilty? Oh that's going to cost you..."

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.

That’s not $2,000 in punitive damages, it’s $13,470. The judge specifically hit them with a fine $11,156 higher than the ‘damaged’ party originally demanded, because they refused to agree that they had done something wrong.

The judge could have ordered them to pay the original demand of $314, and slapped on the ‘punitive’ fine of $2,000 if he was feeling vindictive, but instead chose to make it as damaging as possible for the defendant, simply because they insisted on fighting the demand.

And lest the central point of insanity be missed, the article in question was one the defendant was quoted in, and I assume had some issues with, hence their interest. He’s facing a fine of $13,470 for an action equivalent to printing out an article and sharing it with someone, an article that he was mentioned in.

Anonymous Coward says:

Re: "Refuse to plead guilty? Oh that's going to cost you..."

The worst part about that is does it really make sense to punish Dan Pazsowski for ‘circumvention’ when it’s actually someone else who did all the circumvention?

By the judge’s logic if someone steals cable and plays it over a TV in a public area, everyone who watches the stolen cable is a thief.

Anonymous Coward says:

Re: "Refuse to plead guilty? Oh that's going to cost you..."

LOL It only shows that some people have too big a mouth. He could have claimed he got the information from a private source, but chose to outline how he acquired the article. The judge had no alternative, but to slam dunk the guy in this day and age of excessive fines for little actual damage. The fact he was mentioned in the article only adds irony to the matter. Maybe we should have a law that states any media containing an individual must have a free copy forwarded to that individual.

That One Guy (profile) says:

Re: Easy to say from the gallery rather than the defense's chair

And should you one day find yourself in court, facing a jury of your peers, for an action that you don’t feel was worthy of the charge and/or penalty you face, you’d best hope that the people sitting in those chairs don’t feel the same as you, lest you too ‘get what you deserve’.

Anonymous Coward says:

This is like citing someone for breaking and entering because they followed someone into a locked apartment building. Hey, they “circumvented” the lock!

But what I’m confused about is why the person making the request is the one in trouble, and not the person who made a copy of the paywalled article. I can see why you’d get in copyright trouble for making a copy. After all, that’s the entire point of copyright. But for merely asking for a copy?

art guerrilla (profile) says:

Re: Re:

forget about the insane bits: i don’t get the fine for a year’s commercial subscription for the -supposed- circumvention on ONE article, ONE time; why isn’t that ‘access’ fine/fee pro-rated for -say- one day, instead of a whole year ? ? ?
and/or, does that now mean they get a year’s access to these butthurt blacklocker peep’s ‘stuff’ ? ? ?

oh, and The Law’s an ass…

…and, the last two sentences of the article’s second paragraph do not parse well…

That Anonymous Coward (profile) says:

Copyright, it can do anything… even get a Judge to issue a ruling that will manage to lower peoples already dismal views of copyright.

I wonder if the gentleman who was quoted will now look for ways to take his concerns about the article to court.

I sure hope they didn’t include the article in the court docs, it could lead to billions in fines for all of these people who circumvented the system seeing it.

Anonymous Coward says:

Re: Re:

It’s an interesting business model. Quote someone (they may have said something on the news or in some other publication). Make a comment about that quote and the person behind the quote. Publish it behind a paywall. Charge an enormous fee to access the publication. The person being quoted must now pay you to access an article about them. Profit!!!!!

Josh in CharlotteNC (profile) says:

Hold it

Something’s fishy halfway through.

Sequence of events:
1) Service quotes guy in a story.
2) Guy gets copy of story.
3) Guy contacts service to discuss concerns about story.
4) Service ask guy where he got the copy.
5) other stuff happens

I have a problem with #4. Why would the news service ask the guy they quoted where/how he got a copy of the story?

Was the service afraid he was going to public say they misquoted him and were trying to shut him up with some kind of anti-disparagement clause?

crade (profile) says:

Re: Re: Re:

He just used the article for a short time while the friend wasn’t using it, the difference between borrowing and giving and copying in this case is arguing semantics. What he did was the digital equivalent of borrowing his friends article. You make a copy of a book when you check it out of the library today.. Thats just how computers work, lending, giving, selling, buying, storing, backing up, everything is done through copies.

The friend is allowed to make copies of the stories from his subscription, but he isn’t allowed to make copies for the purpose of lending them out, or giving them to anyone, his agreement likely specifies he can only do it for personal use, and, if so, that is where the infringement is.. Squarely on the friend’s shoulders.

aglynn (profile) says:

Re: Re: Paywalls and libraries

This raises an interesting issue. My library card gives me access to various paywalled services. If I copy something off a paywalled service, what is the difference between that and copying a page from a physical book in the physical library? In both cases I “obtained access” via the library and copied a copyrighted page.

Dave Cortright says:

So what about reporters with leaked documents?

Are reporters now on the hook for copyright infringement when a document is leaked to them that they subsequently report on? Libraries for letting people take screenshot scans of copyrighted materials in their collection?

Sounds like a really horrible precedent. We can only hope it will get corrected on appeal.

Anonymous Coward says:

Had that article been part of a physical magazine or newspaper would the same thing happen if the friend had given the defendant his copy? My family gives each other magazines and newspapers when we’re done reading them. If the publishers were to tell us that subscriptions are per person and not per household our subscription rate would go down to zero.

Anonymous Coward says:

Re: Re:

Had that article been part of a physical magazine or newspaper would the same thing happen if the friend had given the defendant his copy?

While I am neither Canadian, nor particularly conversant with Canadian copyright law, I do happen to be a native speaker of the English language.

I note, from paragraph 22 of the decision, an extract from the Canadian Copyright Act, listing discrete rights subsumed by copyright, in particular:

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner

(Emphasis added.)

Giving the words their plain and natural meaning, it seems to me that if you loan a piece of paper with the definite expectation of getting that piece of paper returned to you, then that doess not “transfer ownership of the tangible object.”

Otoh, if you just hand someone a newspaper, and say, “I’m done with this, please wrap up the dead fish bones and toss them in the trash” —well, then that is at least an abandonment of the ownership of a tangible object.

But, of course, if you had paid for the fish-wrap before handing it off to another person for garbage, then ownership would have “previously been transferred in or outside Canada”.

aglynn (profile) says:

Re: Re: Re:

This points to the problem at the root of any “intellectual property” law – it’s not a tangible object. Historically, the notion of object itself derives from the notion of tangible, personal property, not the other way around. Originally property was divided into personal property and real property, the ‘real’ in the latter survives in the term ‘real estate’, and referred generally to land and structures on that land that could be rented out. However renting out ‘intellectual property’ as paywalled sites do, which is neither personal property (in the sense of a tangible object) or real property (in the sense of real estate) is a conflation of two inadequate analogies. Price is based on scarcity. Anything that can be infinitely reproduced for little to no cost will never qualify as scarce enough to command a reasonable price. As a result we need something completely different than copyright in order to compensate creators of ideas for their work.

BernardoVerda says:

Re: Re:

The advertising rate of a physical periodical is in part based on the notion of it’s “recirculation” ratio — how many people will likely end up looking at a typical copy.

So the guy that glances through the sports section of the paper that gets left on the Starbuck’s table, the lady who checks out the fashion pages, the person who browse the travel section on checks their horoscope — all are valuable, additional audience that allows the publisher to charge and justify a higher rate for his advertising space.

Heck — if your publication is any good, this is “free advertising”, not “piracy” to sue over.

Anonymous Coward says:

Right of access?

From the decision:

44. What is evidentially clear is that access to the full article was obtained without colour of right and without permission from the author or publisher. . . .

But go back to paragraph 22 of the decision, setting out the relevant portion of the Canadian Copyright Act.

For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

[ (a) through (j) ]

and to authorize any such acts.

Where does this Act grant the copyright owner the right to control “access” to the work?

Obviously, the production or reproduction of the work in copies, and sale of the same, does partially and indirectly control access to the work. If one cannot lay hands on a copy, then it seems that one does not have ”access”.

But the rights to make and vend copies do not seem quite synonymous with a general and complete right to control “access”.

Where does this Act say “access”?

Nomad of Norad says:

Appeals?

Can this horrendously out of line fine be appealed to a higher court?

In any event, there need to be laws absolutely OUTLAWING fines that are way larger than the actual list price of the thing being “ripped off.” I.e. if someone is charged with circumventing the copy protection on a $50 video game, then they should only be fined the price of the video game or thereabouts, i.e. not more than twice the price.

In any event, what in the sphincter of Hell is a news article doing placed behind a $240 paywall? If I had my druthers, that NEWS COMPANY would be fined $10,000 for PRICE GOUGING!

nasch (profile) says:

Re: Appeals?

I.e. if someone is charged with circumventing the copy protection on a $50 video game, then they should only be fined the price of the video game or thereabouts, i.e. not more than twice the price.

But if the only penalty for stealing something is about the cost of buying it, that’s really not a penalty. The penalty needs to be substantially greater than the price of the item. Not 36 times as much, but significantly more.

Crazy Canuck says:

Ok, I get that it’s a copy as opposed to giving a physical item, like giving a book you own to a friend to read, but that seems like a petty argument.

If a person downloads the item onto a USB drive and gave that to their friend to read, would that be circumventing the copyright? There was no multiple copies of the file made, the original person has no access to the file until the person returns their USB stick to them. I’m going to guess this gets complicated with the whole licensing vs owning issue with digital media.

What happens if I have paid for cable TV access at home. One day while I’m out, I have a friend watch over my place. They do not have cable TV. They now watch a movie on one of the premium channels I have. Would that mean the MPAA or movie studio would be able to try to sue them for circumventing the copyright by going to my house to use my subscription to gain access to a movie they would not have otherwise been able to access? How about those groups of people who share a single Netflix account?

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