Misguided Policy: CASL’s Private Right of Action for Competition Act Reviewable Conduct

March 15th, 2017 by Donald Houston and Jonathan Bitran 1 comment »

This is a guest blog post by Donald Houston and Jonathan Bitran of McCarthy Tétrault LLP.**

While much has been written about the impending CASL private rights of action, less has been said about the new private right of action CASL will tack on to the Competition Act for misrepresentations in electronic messages. ‎

Website operator jailed for distributing copyright infringing copies of musical works: R v Evans

March 13th, 2017 by Barry Sookman No comments »

Is operating a website that provides links to torrent websites which facilitates unauthorized downloading of musical works a criminal offence? If so, can the operator of such sites expect jail time as punishment for this crime? In a recent decision of the English and Wales Court of Appeal in Evans, R. v [2017] EWCA Crim 139 (14 February 201), the accused, Mr Evans, was convicted of two offences of distributing infringing copies of musical works and was sentenced to 12 months in prison for these crimes.

Computer, Internet and Electronic Terms Definitions Published

March 1st, 2017 by Barry Sookman No comments »

For those of you that need to find the meaning of computer or internet related terms as defined in legislation or judicially construed by the courts, you will be interested in the latest edition of my book. Sookman Computer, Internet and Electronic Terms: Judicial, Legislative, and Technical Definitions (2016). It is available from Thomson Reuters as are my other books including seven-volume treatise, Sookman: Computer, Internet and E-Commerce Law (Carswell, 1999-2016); Copyright: Cases and Commentary on the Canadian and International Law, co-authored with Steven Mason and Prof. Carys Craig (2nd. Ed. Carswell, 2013), and Intellectual Property Law in Canada: Cases and Commentary, co-authored with Steven Mason and Dan Glover (2nd. Ed. Carswell 2013).

SAP wins major lawsuit based on indirect use and named user license terms: SAP v Diageo

February 20th, 2017 by Barry Sookman No comments »

If you use software licensed by SAP you better read your license. If you have not yet acquired SAP software, you should make sure you use an experienced IT licensing lawyer before contracting. If you agreed to SAP’s standard license terms and use the software in a way not expressly permitted by the license it could cost you tens of millions of dollars in completely unexpected incremental license and maintenance fees. That is what happened to a UK company in a questionable decision released a few days ago in a case called SAP UK Ltd v Diageo Great Britain Ltd [2017] EWHC 189 (TCC) (16 February 2017) .

Microsoft Azure IP Advantage: cloud computing without patent risk?

February 17th, 2017 by Barry Sookman No comments »

Microsoft’s President and Chief Legal Officer, Brad Smith recently announced a new program called the Microsoft Azure IP Advantage program. It is touted as  “the industry’s most comprehensive protection against intellectual property (IP) risks”. It will be available for users of Azure cloud offerings. The  protection is intended to “help foster a community that values and protects innovation and investments in the cloud” “without worrying about lawsuits”, especially from non-practicing entities (NPEs, aka patent trolls) and the frivolous patent lawsuits they are infamous for.

PIPEDA’s global extra-territorial jurisdiction and right to be forgotten: A.T. v. Globe24h.com

February 1st, 2017 by Barry Sookman No comments »

The Federal Court of Canada released a landmark decision finding that the court has the jurisdiction to make an extra-territorial order with world-wide effects against a foreign resident requiring the foreign person to remove documents containing personal information about a Canadian citizen that violates the person’s rights under Canada’s privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA). In A.T. v. Globe24h.com, 2017 FC 114 the Honourable  Mr Justice Mosely ordered the individual operator of the website Globe24h.com to remove all Canadian tribunal and court decisions  posted on the site that contain personal information and to take all necessary steps to remove the decisions from search engines caches.

Fix the value gap – a reply to Michael Geist

January 9th, 2017 by Barry Sookman 1 comment »

Here is an Op-ed of mine that ran earlier today in the Hill Times. The post below includes endnotes not in that article.

In his Hill Times Op-ed (Canadian copyright reform requires a fix on the fair dealing gap, Dec. 5, 2016) Michael Geist takes issue with the need to address the “value gap” that is hurting Canadian artists, writers, and other members of the creative class. He argues instead that Canada faces a need to address a “fair dealing gap” in our copyright laws. There is no such need and his arguments don’t withstand scrutiny.

Browsewraps, fair dealing and Blacklock’s Reporter v Canada: a critical commentary

January 2nd, 2017 by Barry Sookman 1 comment »

Blacklock’s Reporter is a small Canadian online news agency. Like many publishers it has challenges in enforcing its copyrights against unauthorized digital copying. To protect its rights it uses a subscription model to license content. It attempts to keep materials from unauthorized access and distribution by using a paywall. Recently the Federal Court in 1395804 Ontario Ltd. (Blacklock’s Reporter) v. Canada (Attorney General), 2016 FC 1255  concluded that the copyright in Blacklock’s news articles was not infringed when copies of articles lawfully obtained under a subscription by one subscriber were emailed to the Department of Finance and were then forwarded to others within the department. The court found the copying was a fair dealing, an exception from infringement under the Copyright Act.

Limitations of liability in IT contracts: Atos v Sapient

December 8th, 2016 by Barry Sookman No comments »

For tech lawyers like me and many readers of this blog, it’s a rare treat when a Canadian court construes an IT contract and opines on clauses we see in agreements all the time. The case IT lawyers will want to read is Atos v Sapient, 2016 ONSC 6852

This case involved a contract dispute between the prime contractor Sapient and its subcontractor Siemens (now Atos). Here are some legal nuggets you might want to think about in your next IT contracts.

Google v Equustek at the Supreme Court

December 6th, 2016 by Barry Sookman No comments »

The argument in the Google v Equustek Supreme Court case is about to start. An issue in the case is whether a court has a right to grant a de-listing order against a search engine to assist in enforcing a prior injunction granted by the court. The decisions of the courts appealed from are summarized here.

All of the factums  can be retrieved from the Supreme Court website. The webcast can be viewed here.

I did a presentation on the case several months ago highlighting what is in issue in the case. My slides are set out below.