Michael Geist on CASL: flaws not Festivus grievances

September 16th, 2013 by Barry Sookman 2 comments »

Last week Michael Geist published a blog post summarizing his remarks to Industry Minister Moore as to why the almost universal criticisms of Canada’s anti-spam/malware law CASL are unfounded. He suggested it is intense lobbying by “squeaky wheels” with “knee jerk” “greatly exaggerated” and “Festivus” grievances about CASL” that has delayed bringing the law into effect”. He acknowledges that CASL creates new compliance obligations but suggests they are not onerous and even standard internationally (when referring to “opt-in” for spam) and that there is not much more to CASL than “a simple proposition – obtain customer consent and you can do pretty much whatever you like.”

U.S. Federal Circuit Bar Association IP conference coming to Toronto

September 10th, 2013 by Barry Sookman No comments »

The U.S. Federal Circuit Bar Association is holding an IP conference in Toronto on September 17, 2013. The conference title is Trade, Intellectual Property and Recovering Economies: A Search for Best Practices. 

This unique event, sponsored by the Federal Circuit Bar Association (FCBA), has a fabulous program that includes the following topics:

  • Innovation
  • Patent, Internet and Copyright Litigation
  • International Trade
  • Views from the Courts and the Patent Offices

Some key speakers include the following:

  • Chief Judge Randall R. Rader – United States Court of Appeals for the Federal Circuit

NSA spying, cyber security and liability under Canada’s anti-spam spyware law CASL

September 9th, 2013 by Barry Sookman No comments »

Last week the Guardian and New York Times ran stories claiming that NSA and its UK counterpart GCHQ have developed or employed means to crack the security being used to protect the privacy of personal data, online transactions, e-mails and other internet communications. According to the reports, the intelligence agencies have, among other things, collaborated with technology companies and ISPs to insert secret vulnerabilities – known as backdoors or trapdoors – into commercial encryption software, computer chips, and devices, covertly influenced their product designs, and introduced weaknesses into security standards. Intensive efforts have been made to crack security in widely used online protocols in Canada such as HTTPS, voice-over-IP, Secure Sockets Layer (SSL), virtual private networks (VPNs), and the protection used on 4G smartphones. Reportedly, companies have collaborated voluntarily or by being legally compelled to do so.

Copyright: Cases and Commentary on the Canadian and International Law

September 5th, 2013 by Barry Sookman No comments »

978-0-7798-5535-3I am pleased to announce the publication of the second edition of my book Copyright: Cases and Commentary on the Canadian and International Law. The casebook, co-authored with Steve Mason and Osgoode Hall Law School Professor Carys Craig, is published by Carswell.

The new edition updates the text to include important developments in the law from the Supreme Court copyright pentalogy and amendments made by the Copyright Modernization Act. The text also includes other developments in the law including significant decisions from other courts in Canada, the US and Commonwealth countries.

Private copying levy on death row

September 3rd, 2013 by Barry Sookman No comments »

The Copyright Board of Canada rendered its decision on Friday with regards to the Tariff of Levies to Be Collected by CPCC in 2012, 2013 and 2014 on the sale of Blank Audio Recording Media. The decision is notable in a number of respects, most importantly because it portends the end of the levy based private copying regime for music and the beginning of the levy free format shifting regime ushered in with Bill C-11, the Copyright Modernization Act.

The Board decision certified a tariff for years 2012-2014 on eligible blank recording media which largely consist of the aging CD-R, CD-RW, CD-R Audio, and CD-RW Audio formats. The levy rate is 29¢ for each type of media.

Supreme Court takes another copyright case: Canadian Artists’ Representation v National Gallery of Canada

August 16th, 2013 by Barry Sookman No comments »

Last July the Supreme Court of Canada released five copyright decisions. In December of last year the Supreme Court heard the appeal in Robertson v Cinar copyright case. The decision of the Court in that case is due any time now. The Supreme Court obviously couldn’t be without any copyright cases. So, yesterday it granted leave in yet another case, Canadian Artists’ Representation/Front des artistes canadiens et al. v. National Gallery of Canada.

Aereo heading to the US Supreme Court?

July 18th, 2013 by Barry Sookman 1 comment »

Aereo’s business model of re-transmitting TV broadcasts without a license infringes copyright and should be shut down. Its business model is a “sham” designed to capitalize on perceived loopholes in the US Copyright Act. This was the opinion of Circuit Judge Chin in his dissent in WNET, Thirteen v. Aereo, Inc 2013 WL 1285591 (2nd.Cir.Apr, 1, 2013). He re-iterated these same views in a scathing dissenting opinion disagreeing with his brethren in the Second Circuit who denied a motion to re-hear the case en banc.

Merck awarded blockbuster damages for Apotex’s patent infringement

July 17th, 2013 by Barry Sookman No comments »

In December 2010, the pharmaceutical giant Merck won a major patent case against the generic pharmaceutical maker Apotox. In  Merck & Co v Apotex Inc, 2010 FC 1265, 91 CPR (4th) aff’d 2011 FCA 363, 102 CPR (4th) 321, Justice Snider found Merck’s ‘380 patent for the drug  lovastatin, a statin sold in Canada under the trade name MEVACOR, was valid and had been infringed. In a decision made public yesterday after a trial to determine damages, Merck & Co v Apotex Inc 2013 FC 751, Justice Snider ordered Apotex to pay Merck more than $180 million dollars in damages and interest.

Developments in Computer, Internet and E-Commerce Law (2012-2013)

June 27th, 2013 by Barry Sookman No comments »

Earlier today, I gave my annual presentation to the Toronto Computer Lawyers’ Group on developments in Computer, Internet, and e-commerce Law. The slides cover the period from my last presentation in June 2012, Developments in Computer, Internet and E-Commerce Law (2011-2012).

The cases summarized in the slides below canvass developments in a number of countries and include cases from Canada, United States, UK, Ireland, Australia, and Israel.


1004964 Ontario Inc. v. Aviya Technologies Inc., 2013 ONSC 51

A.B. v. Bragg Communications Inc., 2012 SCC 46

Acanac Inc. v. M.N.R., 2013 TCC 163

Blizzard v. Simpson, 2012 ONSC 4312

Representations, warranties and indemnities in IT transactions

June 19th, 2013 by Barry Sookman No comments »

Yesterday, Helen Aston and I spoke at IT.Can’s The 2003 Information Technology Law Spring Forum. Our topic was Representations, Warranties and Indemnities (in IT transaction) – A Primer. The slides we used as a conversation starter are shown below.