Federal Court to decide if password-sharing violates copyright law

Blacklock’s Reporter sued Parks Canada for buying a one-person subscription and then sharing a password so multiple government employees could access the site’s news stories

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OTTAWA — A case in the Federal Court of Canada could determine whether the sharing of online passwords violates the Copyright Act and has the potential to put Canadian password-sharers at risk of a lawsuit.

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“The simple sharing of a password that doesn’t involve any (decryption) or descrambling, or any effort whatsoever, could result in enormous damages, even if there’s no copying or reproduction involved,” said retired copyright lawyer Howard Knopf.

The case began when Blacklock’s Reporter, an Ottawa-based news website, sued Parks Canada for buying a one-person subscription and then sharing a password so multiple government employees could access the site’s news stories, which were secured behind a subscriber paywall.

Blacklock’s lost a similar case in 2016, but it has put forward 10 other cases against different government departments. In one case in 2016, the judge determined that inter-departmental sharing within Finance Canada of two articles was fair dealing, meaning it didn’t infringe copyright law.

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Blacklock’s then amended its arguments in the cases “to introduce a new basis of liability, namely that a (technological protection measure) had been breached with the sharing of a password by public servants at Parks Canada,” the attorney general outlined in court documents.

The Copyright Act prohibits circumventing a technological protection measure (TPM) — defined as to descramble, decrypt, “or to otherwise avoid, bypass, remove, deactivate or impair” the TPM. It defines a TPM as a technology that controls access to a work.

In court documents, Blacklock’s argued a paywall is a TPM. “The very nature of a paywall is to prevent access without an authorized username and a password,” he said.

The Federal Court heard those arguments last week, seven-and-a-half years after the Parks Canada case was launched in 2015. Blacklock’s actually decided to drop the case in 2020, filing a notice of discontinuance, but the attorney general, representing the federal government, asked the court to rule on the case in a summary judgment.

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The government is asking the court to declare that Parks Canada wasn’t in the wrong to internally share articles Blacklock’s wrote about the department, and that such password-sharing isn’t circumventing a TPM. It said the results of the case “promise to be determinative of all outstanding Blacklock’s actions” against the government currently in court.

Knopf said the Parks Canada case could have an “extremely adverse impact on fair dealing rights, such as research and private study and education, and may put a big chill on the internet, because simple password-sharing is probably a very commonplace and necessary phenomenon .”

The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic intervened in the case to argue the judge should determine that entering a valid password isn’t circumventing a TPM, and that the TPM provisions don’t trump the fair-dealing exception in the Copyright act. That fair-dealing exception covers research, private study, education, parody, satire, news reporting and criticism and review.

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“Permitting copyright owners to effectively negate fair dealing by employing TPMs defeats the Act’s careful balance between owner and user rights,” argued CIPPIC.

“Absent irresistibly clear language, the Court should reject an interpretation allowing copyright owners to unilaterally and self-servingly eviscerate the Act’s cornerstone user right, one the Supreme Court characterizes as ‘integral’ to its function and deserving of a large and liberal reading.”

CIPPIC pointed out copyright owners can still use contracts, which aren’t subject to a fair dealing defense, to “discourage” circumventing technological protection measures.

Password-sharing has been in the spotlight recently as Netflix has cracked down on the practice among its users. Whatever the outcome of the Blacklock’s case, it won’t affect the ability of companies to forbid password-sharing in their terms and conditions, or to crack down on the practice as Netflix is ​​doing.

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Blacklock’s argued in its documents that Parliament didn’t intend for fair dealing to apply in cases where a TPM is circumvented. “Parliament could not have intended to ever allow the use of a work to be fair if the use was a result of a violation of a legislative prohibition,” it said in court documents.

“If Parliament intended to allot flexibility to a prohibition, it would have been expressly stated…. If a user circumvents a TPM, fair dealing is off the table.”

Both Blacklock’s publisher Holly Doan and the lawyer representing the outlet declined to comment.

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