mass copyright infringement suit by lawyers given go-ahead

The Lawyers Weekly reports that a class action lawsuit accusing Thomson Reuters of “mass copyright infringement” was given the green light to proceed last week. There’s a good summary of the facts in the article, but here is my 30 second summary of the summary:

  • lawyers write pleadings, motions, affidavits and other legal documents which are filed with the courts
  • because they are filed with the courts, they are (for the most part) in the public record – anyone who pays a fee can get a copy, but typically only in (somewhat inconvenient) hardcopy
  • Thomson developed an electronic database where it did all the heavy lifting – it went to the courts, paid the fees, collected the hardcopies, scanned and digitized them, and made them available in a convenient and searchable form to subscribers – for a fee

The plaintiffs’ bone of contention is that, while Thomson did do a fair bit of work and paid the relevant court fees as would any individual requesting the same documents, it did not license their use from the authors of those documents, nor pay them for such license. Therefore, Thomson should be found liable for copyright infringement.

There was a good post and interesting discussion on this case on Slaw back in 2010 when the class proceeding was first started, with a number of comments arguing for and against. I was amongst the commentators and my initial reaction, primarily from the perspective of “black-letter” copyright law, was that the plaintiffs seemed to have a reasonably good case, while comparatively, the defendants seem to have a rather weak defence.

Since then, and after giving the matter a bit more thought, I’ve become a bit more ambivalent. There are some competing policy objectives (each of which has its merits) that will need to be considered by the court. One of the distinctions that seem to be made in this case is the fact that Thomson has, apparently, profited quite handsomely from this service, whereas (presumably) individuals who request a single copy do not. Perhaps this is a straw man of my own construction, but I would have thought that many individuals who request copies of pleadings are lawyers, who use such documents in order to do their work, and thereby generate fees. Would it therefore be appropriate to distinguish between the two? Should fair use encompass use through one medium (hardcopy), but not another (digitized and searchable)? Should Thomson’s efforts in taking the time to obtain copies and digitize, index and sort them entitle it to earn a profit from its efforts without an obligation to compensate the original authors? After all, what subscribers are really paying for is not access to the documents themselves, but rather, I would think, how the documents are accessed – it is more cost-effective for them to pay a fee to access pleadings and the like in easily searchable and downloadable form from the convenience of their desk than to schlep around to courts to manually find and retrieve the same documents.

Of course there are other considerations as well – public access to the courts and to the public record, and a number of others. Certainly raises a number of thorny questions. If of interest, I’d encourage you to visit the Slaw article I mentioned above for somewhat more learned debate than my cursory ramblings.

Also, apparently the court chose to certify some (but not all issues). From the article:

The judge certified two common issues relating to Thomson’s alleged conduct. Did the company through its Litigator service: (1) “reproduce, publish, telecommunicate to the public, sell, rent, or hold itself out as the author or owner of court documents?” or  (2)  “authorize subscribers to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold themselves out as the author or owner of court documents?”

The judge also certified common issues raised by Thomson’s defences: “Does Thomson have a public policy defence to copyright infringement or to the violation of moral rights based on (a) fair dealing, (b) the open court principle, (c) freedom of expression, (d) the necessity of using the idea of the court document as it is expressed, or (e) a business or professional custom or public policy reason that would justify reproducing, publishing, telecommunicating to the public, selling, renting, translating, or holding itself out as the author or owner of court documents?”

Moreover, “did Thomson have the copyright owner’s implicit consent to reproduce, publish, telecommunicate to the public, sell, rent, translate, or hold itself out as the author or owner of court documents?”

Certified as common issues as well: “are class members entitled to injunctive relief” under s. 34(1) of the Copyright Act; and “does Thomson’s conduct justify an award of aggravated, exemplary, or punitive damages?’

Wikiality

Interesting post on the Wellington Financial Blog about “Wikiality” – the practice of taking stuff in Wikipedia as the truth, or, to quote: ““a reality where, if enough people agree with a notion, it becomes the truth.”

JN notes that Wikipedia has been cited by the courts, and this is reason for concern. A snippet:

The practice poses two problems:

  1. The references may be inaccurate; and
  2. Even if accurate, the references are subject to change at any point in the future, making it difficult for any future decisions to refer back to the original or understand the context in which it was made.

Given recent reports of Microsoft offering to pay individuals to make changes to certain Wikipedia articles in which they have a vested interest, the credibility of the site as a definitive reference source again comes into question.

A few of my colleagues at the firm also expressed bemusement when a recent case in Ontario (don’t have the citation, sorry) also cited Wikipedia.

I am quite a big fan of Wikipedia. It is, I think a rather useful and handy tool to refer to from time to time. Do I take it as the gospel? No. Would I use it if I were trying to concoct an antidote for a poison that was about to kill me? Probably not. Would I cite it in a legal research paper? Possibly. In fact, quite likely.

Although Wikipedia is by no means without its weaknesses, it also has its strengths. Sure, there is a possibility of inaccuracy. But then again, isn’t something less likely to have inaccuracies if it is reviewed (and edited) by more eyes (and more minds)? Isn’t it more likely that if there is a dispute about what is and isn’t correct, it will come to light, just like the Microsoft incident?

And what source, can it be said, is free of inaccuracies? Certainly not The New York Times. Although the Gray Lady is quick to point out that it was “deceived” by an errant reporter, it is less quick to reflect on the fact that it published fabricated stories. That of course is the clearest example, but history is rife with examples of inaccurate or misleading stories in the press. Less clear, of course, is media bias. And one only needs to refer to Manufacturing Consent. I don’t necessarily agree with all that book has to offer, but it certainly provides some food for thought.

What about scientific publications? Hmmm. Well. Again, truth is quite often relative. The clearest examples, are, of course, outright fabrication. Nonetheless, Dr. Hwang Woo-suk’s paper on producting the first cloned stem cell line was considered the truth for several years, until he was discredited. And more generally speaking, is it not true that, in the world of science, what is considered to be the truth is what most scientists believe to be true? Is that not the system of peer review? A great read on this topic is The Structure of Scientific Revolutions (as an aside, its also the book that introduced the phrase “paradigm shift” into popular parlance). I won’t bore you with details, but suffice it to say that, at the end of the day, science, at least in concept, may not be that far from wikiality.

My point isn’t necessarily to skewer existing sources of “truth” but rather to point out that such sources aren’t necessarily more reliable or accurate, or less fallible, than something like Wikipedia.

And as for things changing? Make a copy.


about

This site was created and is maintained by me, David Ma. For the technical details of the site, please see the colophon. For the details on me, peek at my LinkedIn profile. The short story is that I’m a corporate/commercial lawyer in Toronto, Ontario (Canada), specializing in technology-related transactions and companies.

Why this site? Primarily as an outlet to make personal and informal observations on developments in the technology industry as I see them. And to let me poke around with a little bit of technology.

Views expressed here are solely my own. Don’t rely on anything on this site as if it were legal advice (or for that matter “legal information”), because it’s not. Questions? Feedback? Feel free to e-mail me or contact me through LinkedIn, or if you like, by carrier pigeon.

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