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.