Strangest copyright cases of 2012

December 28th, 2012 by Barry Sookman Leave a reply »

If you’re on holidays and looking for some copyright law hilarity, take 15 minutes to read Meads v. Meads, 2012 ABQB 571. This case from Alberta examines the practice of Organized Commercial  Pseudolegal Commercial Argument litigants (“OCPA” litigants). These persons employ a collection of techniques and arguments promoted and sold by ‘gurus’ to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.

One of the techniques involves a scheme pursuant to which the litigant purports to claim copyright and trade-mark rights in his or her name and a unilateral notice that foists obligations on anyone that uses the name (including to communicate with the person). The notice purports to impose, among other things, a unilateral obligation to pay the litigant the sum of $100 million each time the name is used. A copy of the strangest copyright notice/agreement you probably have ever seen is in Appendix B to the decision.

The Court, not surprising, finds the scheme to be a sham with no force or effect. In the course of the reasons, the Court comments that copyright cannot subsist in a person’s name. Moreover, even if copyright could subsist in the name, the copyright would vest in the name’s authors, the individual’s parents, and not the litigant

For your reading amusement, here are the extracts from the case which deal with the OCPA litigant copyright and trademark “notice”.

One of the strangest expressions of the foisted unilateral agreement concept relates to copyright and trade-mark. OPCA litigants very frequently claim copyright and/or trade-mark of their own names. That can combine with a ‘double/split person’ concept so that the physical person has an intellectual property interest in the ‘name’ of the non-corporeal aspect. That appears to be the function of Mr. Meads’ “Copyright Trade-name/Trademark Contract” between DENNIS LARRY MEADS and Dennis-Larry: Meads.

The OPCA litigant then unilaterally foists on a target a document that purports to govern use of the copyright and/or trade-mark protected name. Invariably, the document warns that any unauthorized use of the protected intellectual property means the target has agreed to pay a certain sum, per use.

Mr. Meads’ material includes one such document, entitled:

NOTICE BY DECLARATION and AFFIDAVIT OF CONSEQUENCES FOR INFRINGEMENT OF COPYRIGHT TRADE-NAME/TRADEMARK.

And same are accepted for value and exempt from levy.

and is reproduced in whole as Appendix “B”.

This cannot even be described as a ‘unilaterally foisted contract’, it is instead a unilateral notice foisting obligations on the world:

With the intent of being contractually bound, any juristic person, as well as the agent thereof, consents and agrees by this Notice that neither said juristic person nor agent thereof shall display, nor otherwise use in any manner, the common‑law trade‑name/trademark DENNIS LARRY MEADS©, nor the common‑law copyright described herein, nor any derivative of, or any variation in the spelling thereof without the prior, express, written consent and acknowledgment of Secured Party, as signified by Secured Party’s signature in red ink. Secured Party neither grants, nor implies, nor otherwise gives consent for any unauthorized use of DENNIS LARRY MEADS©, and all such unauthorized use is strictly prohibited. [Emphasis in original.]

Any use of Mr. Meads’ protected names:

DENNIS LARRY MEADS© — including any and all derivatives and variations in the spelling, i.e. DENNIS LARRY MEADS,MEADS DENNIS LARRY, DENNIS L MEADS, MEADS D LARRY, D L MEADS

means a person owes Mr. Meads $100,000,000.00:

… grants Secured Party a security interest in all of User’s assets, land and personal property, and all of User’s interest in assets, land and personal property, in the sum certain amount of $100,000,000.00 per each occurrence of use of the common‑law copyrighted trade-name/trademark DENNIS LARRY MEADS©, as well as for each and every occurrence of use of any and all derivatives of and variations in the spelling of DENNIS LARRY MEADS©, plus costs, plus triple damages …

This kind of document is far from unique, see for example: Gravlin et al. v. Canadian Imperial Bank of Commerce et al,2005 BCSC 839 (CanLII), 2005 BCSC 839 at para. 9, 140 A.C.W.S. (3d) 447; Dempsey v. Envision Credit Union2006 BCSC 1324 (CanLII), 2006 BCSC 1324 at para. 37, 60 B.C.L.R. (4th) 309.

Sometimes an OPCA litigant claims that breach of a purported copyright interest does not merely cause a financial penalty, but can even disqualify a court or state actor’s jurisdiction. For example, in Hajdu v. Ontario (Director, Family Reponsibility Office)2012 ONSC 1835 (CanLII), 2012 ONSC 1835 at paras. 23-25, 31, an appeal was based, in part, because the trial court “… was in violation of international copyright law”. Coats J. concluded this argument “… that the Director or the court was in breach of copyright law throughout the default hearing is without merit.”

Mr. Meads’ copyright and trade-mark claims are suspect in a number of ways. First, he claims ownership of his “… common law right of, in and to my Copyright(s), Trademark(s) and Trade-Name(s) …” [emphasis added]. The special property interests provided by copyright and trade-mark flow from legislation (the Copyright Act, R.S.C. 1985, c. C‑42, and the Trade‑marks Act, R.S.C. 1985, c. T‑13). There has never been a common law right to either.

There is not authority present, nor, I believe, capable of establishing that a personal name can form a creative work that would be subject to copyright. In any case, even if that were so, then copyright in a name would presumably vest with its authors, Mr. Meads’ parents. The Copyright Act also sets the consequence of infringement on copyright: ss. 3441. Infringement can lead to damages and recovery of profit (s. 35) and where no damage is proven then statutory damages (s. 38.1) can be claimed. There is no provision for the kind of ‘contract’ or ‘notice’ claims found in OPCA foisted unilateral copyright agreements.

Similarly, the claim in relation to trade-mark or trade-name is nonsense. The process to obtain a trade-mark and the rights that flow from that are set by the Trade-marks Act, not some unilateral declaration. A trade-mark that has legal effect requires application to the Canadian Intellectual Property Agency [“CIPO”] for registration. Once a trade-mark is registered and published, then its owner has associated rights. No evidence has been provided from the CIPO trade-marks database to establish a registered trade-mark that includes the word “Meads”.

The entire ‘my name is copyright/trade-mark protected’ scheme has an overwhelmingly juvenile character. People necessarily use names in everyday interaction, commerce, and most certainly in court. Does it make any sense that any person who were to correspond with Mr. Meads would be liable to him for $100 million dollars simply because they put his name in the address? Could people operate in this regime? Must we all address one another by arbitrary nicknames or some kind of functional description? The answer to these questions is an overwhelming “no.”

The runner up for “strangest copyright case of the year” is Adobe Systems Incorporated v. Dale Thompson DBA Appletree Solutions, 2012 FC 1219. It involved a software copyright counterfeiting case in which the defendant, Dale Thomson, sought to defend the case by arguing that software companies profit from piracy. See, Christine Dobby, The ‘network effect’: One man’s quest to prove software companies profit from piracy.

The trial judge described the defense as follows before whacking Thompson with the maximum available statutory damages, as well as punitive damages and solicitor and client costs.

The Defendant has failed to acknowledge any wrongdoing, rather his reaction to the current proceedings has been to blame the Plaintiffs. In my opinion, the following statements made by the Defendant in the Statement of Defence discloses a misguided attitude of entitlement with respect to his infringing conduct: the Plaintiffs erred by not issuing a cease and desist letter before commencing the infringement action; the Plaintiffs are participants to a “network effect” which the Defendant describes as an economic practice by which the Plaintiffs establish market dominance and maximize their profits, while also allowing and tolerating copyright infringement and piracy; and copyright infringement and piracy actually lead to financial gains for the Plaintiffs, which is why they fail to install protective measures in their software.  It appears that the Defendant’s knowledge and attitude towards theft of intellectual property was gained in the course of working for a business law firm in downtown Toronto. In my opinion, the evidence of the Defendant’s strong intention to infringe requires the application of the law to deliver strong deterrent measures.

The Court did not disclose the name of the business law firm that Thompson allegedly worked for.

The defense advanced by Thompson in the Adobe case is reminiscent of the also unsuccessful defense put forward by Rogers Communications Inc’s wholly owned subsidiary Zoocasa in Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196 last year. Zoocasa was accused of copyright infringement and breach of an online agreement when it screen scraped and copied real estate listing data from Century 21’s website. To defend the breach of contract claim, it argued that no online agreement that restricted the use of online information could be enforced as a matter of public policy. The Court also resoundingly rejected the argument.

The defendants submit that to accede to the plaintiffs’ arguments, respecting the binding nature of the Terms of Use, would be contrary to public policy as it would have negative effects on the operation of the Internet.  The defendants suggest that accepting use of a website as conduct that serves as acceptance sufficient to form a contract would imperil the operation of the Internet as it currently functions.  The concerns expressed are that this would have a chilling effect on the function and structure of the Internet in Canada.  They state that the plaintiffs’ claims are vague and would lead to results contrary to the public interest.

The defendants’ argument implies that all information that is made available on the web must be available to all without contractual restrictions.  They go so far as to state that the existence of the Internet depends upon it and indexing and linking are essential to the operations of the World Wide Web.  I do not accept that submission.

The World Wide Web industry itself has recognized that the owners of websites have the right to restrict access to some or all of the information on their site.  For this reason protocols designed to enable a search engine to determine what it is permitted to be included and what it is not have been created.  Implicit in such standards is the recognition that the information on the Internet is not open to all.  In addition, it is an acknowledgment that restrictions do not in fact inhibit or negatively affect the operation of the Internet to an unacceptable degree.

In Cyber-Surfing on the High Seas of Legalese: Law and Technology of Internet Agreements, (2008) 18 Alb. L.J. Sci & Tech 69 at 121,Ty Tasker & Daryn Pakcyk, the authors state:

“Further, there is no blanket presumption of open, public access to a web site just because it is accessible via the World Wide Web”.

The evolution of the Internet as an “open” medium with its ability to hyperlink, being key to its success, does not mean it must function free of traditional contract law.  It is simply the manner of contracting that has changed, not the law of contract.  The acceptance of click wrap and browse wrap agreements acknowledges the right of parties to control access to, and the use of, their websites.

Just because a party chooses to do business on the Internet should not mean they relinquish their rights to control access to their business assets and information.  The defendants’ submission would deny that right to the plaintiff Century 21.  In turn, that would decrease their motivation to create and operate their Website.

In my opinion, a publically available website does not necessarily give a right of access free of any contractual terms.  Depending on the circumstances, a contract may be formed.

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