A recent Federal Court ruling that allows federal managers to share passwords for Blacklock’s Reporter without payment or permission is "riddled with mistakes," according to Barry Sookman, a prominent internet law expert. Blacklock’s Reporter says Sookman, senior counsel with McCarthy Tétrault LLP in Toronto, criticized the decision, warning that it leaves online publishers questioning their legal protection against government overreach."It is clear the recent Blacklock’s Reporter case is riddled with mistakes and many of its findings are open to significant doubt," Sookman wrote in a detailed 15-page commentary. "This is a case that cries out for appellate review."The ruling, which upheld the sharing of a single paid password among multiple Parks Canada employees, has raised concerns about the future of online subscription services. "The Blacklock’s Reporter court decision could leave online news services scratching their corporate heads asking whether after this decision they have any legal protection against subscribers, and especially Government of Canada subscribers, disavowing online subscription terms," Sookman added in his Critical Commentary Of The Blacklock’s Reporter-Parks Canada Decision.Sookman, an experienced authority on property rights and author of an eight-volume work on internet law, has frequently testified at Commons committee hearings. His commentary challenges the court's May 31 judgment that ruled in favor of Parks Canada after the agency was found to have shared a single $148 Blacklock’s password with multiple employees, despite "plainly visible" terms and conditions prohibiting such actions.The Federal Court acknowledged that Parks Canada manager Genevieve Patenaude "made a mistake" by emailing the password to at least nine colleagues but justified the agency's actions, citing a "legitimate business reason" for accessing Blacklock’s content without paying the same fees as other large licensees, who are charged up to $11,470 annually."In essence, the decision found that for the payment of $148 the entire agency received a licence to copy and distribute Blacklock’s Reporter articles within the agency to any interested individuals and to other interested departments," Sookman wrote. He argued that any "application of sound commercial principles would strongly suggest that for a mere $148 the agency did not have a ‘bulk license’ or ‘institutional license’ to copy and distribute Blacklock’s articles."Sookman described the ruling as "flawed," "inconsistent," and "difficult to follow and untangle," highlighting numerous legal weaknesses, including a "nonsensical and unreasonable" interpretation of the terms and conditions. He concluded that the court "misconstrued Blacklock’s terms and conditions" and, although it recognized them as binding, ultimately decided the case as if they were not.The deadline for Blacklock’s Reporter to file an appeal is approaching, and Sookman warns that if the ruling stands unchallenged, it could "create precedents which undermine news services."
