I had the pleasure of speaking to the Council of Ontario Universities last week on the topic of Canada’s anti-spam law (CASL). July 1, 2017 is a milestone date with the private right of action (PRA) slated to come into force and the transitional period for the existing and non-existing business relationship implied consent provision coming to an end. Both these events are causing significant anxiety across the country and in countries with organizations doing business with Canadians, in all sectors. (My e-mail in-box and phone have been “ringing” off the hook.)
ISP are often ordered to disclose subscriber information to copyright holders seeking to vindicate their rights. Prior to the Copyright Modernization Act, ISPs were entitled to be paid reasonable compensation for compiling and disclosing the information. In an important ruling yesterday in Voltage Pictures, LLC v Joe Doe #1 2017 FCA 97, the Federal Court of Appeal ruled that the notice and notice regime established under the CMA changed the law. According to the Court, ISPs are now expected to retain and verify subscriber information without payment of any fees. They may only charge their costs for disclosing this information, costs that the Court stated were likely to be negligible.
You’re a bank and receive instructions by e-mail to wire transfer funds from someone purporting to be your customer. But, the customer’s account was hacked and the e-mail was sent by a fraudster. You, the bank, have no reason to suspect any fraud and act in accordance with your account terms which require you to accept electronic instructions and pursuant to which the customer agreed to secure his account against hackers. Who bears the loss, the bank or the customer? An Ontario court recently examined this question in Du v Jameson Bank, 2017 ONSC 2422 and ruled in favor of the bank on common law and contract grounds.
Fordham Law School has the best annual intellectual property conferences. I had the privilege of speaking at its 25th Annual IP Conference yesterday on the Equustek v Google case. In this case the Supreme Court of Canada is being asked to decide if Canadian courts have the jurisdiction to make global de-indexing orders against search engines like Google, and if so, the factors to be considered in making such orders. My slides from the talk are shown below.
Kodi boxes pre-configured to enable buyers to stream and download movie and TV content are proving to be a challenge to producers and distributors of this content in Canada and around the world. Recently the Federal Court granted an injunction prohibiting the sale of certain pre-configured boxes. The decision was recently affirmed by the Federal Court of Appeal.
I was interviewed earlier this week about the these decisions and the legality of the sales and uses of these boxes. My interview can be viewed here and below.
If you’ve ever shopped for a used car, you likely know the two popular services, autotrader.ca and CarGurus. In a decision released earlier this week in Trader v CarGurus, 2017 ONSC 1841, Trader (the owner and operator of autotrader.ca) was awarded statutory damages of $305,604 against CarCurus for infringements of its copyrights in photographs of vehicles. The decision written by Justice Conway of the Ontario Superior Court contains some important interpretations of the Copyright Act including in relation to the scope of the new making available right, the copyright defenses for information location tools and fair dealing, and the calculation of statutory damages.
In a decision that should not surprise anyone, the distributors of set top boxes that were specifically adapted to enable purchasers to stream and download infringing copies of programs made available by Bell, Bell Expressvu, Rogers, and Videotron lost their appeal of an injunction granted this summer by Justice Tremblay-Lamer in Bell Canada v ITVBOX.NET 2016 FC 612. (summarized here).
The appellants didn’t appeal the findings of the court that there was a strong case of infringement. Rather, they challenged the court’s findings that broadcast distribution undertakings would suffer irreparable harm if the injunction was not granted. The court in Wesley dba MTLFREETV.com v Bell Canada et al 2017 FCA 55 easily rejected this attempt to re-argue the evidence stating:
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.
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  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.
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).