IT.CAN Newsletter/Bulletin
May 26, 2016/26 mai 2016

Collection of Programs Show Accused to be Sophisticated Computer User

Deletion of a file not evidence of lack of intention to possess

The Ontario Court of Justice concluded from the nature of programs on an accused’s computer in a child pornography case that he was a sophisticated computer user, and therefore that inferences about his control and knowledge of material could be drawn in R. v. Thompson. In addition the court rejected a “deletion” defence with regard to possession of child pornography.

Police became aware of the accused when an officer investigating internet child exploitation on several occasions was able to obtain child pornography, through a file-sharing program, from an IP address which was later determined to belong to the accused. As a result a search warrant was executed at his residence and various electronic devices were seized, resulting in the discovery of further child pornography videos and images. As a result he was charged with various related offences: accessing child pornography, making child pornography available, and possession of child pornography.

Often in child pornography cases a defence which is raised is that the child pornography somehow came to be on the computer without the knowledge of the accused: the forensic evidence in this case made that argument untenable.

First, the evidence showed the accused to be a sophisticated computer user who appeared to have configured his computer to conceal the existence of the contraband files. He had installed a program which allowed him to create separate virtual operating systems on his computer, and in fact had created five such systems. The possibility of doing this, the trial judge noted, was unknown to most computer users, and was a technique which “can be used to obscure or hide the contents of the computer” (para 20). Beyond that, the computer contained a program which could be used to wipe clean the unallocated space on a hard drive, which is a location where remnants of deleted files are sometimes found. In addition, the computer contained programs which could be used to change the users IP address, or to conceal that IP address from the rest of the world. Further, the computer had installed and was running uTorrent, a common file-sharing application), and a number of videos and images were recovered which met the definition of child pornography. Some of those images matched the files which the police had downloaded through the file-sharing program from the accused’s IP address.

The only logical inference from the nature of the programs on the accused’s computer, the trial judge held, was that the accused had knowingly searched for and downloaded the material on his computer, and therefore that he was guilty of accessing child pornography. By the same token, the evidence of that collection of programs led also to the conclusion that he was guilty of making child pornography available.

On the possession charge, the accused pointed to the fact that the vast majority of the video files had been recovered from unallocated space, which meant that they had been deleted at some point. He argued that this should lead to the conclusion that this should lead to the conclusion that, although he accessed the material, the Crown had not proven that he intended to possess it. The trial judge rejected this position as well, however, holding that “He sought them out, downloaded them and at least temporarily saved them” (para 40). This was sufficient to prove possession as well, and so the accused was found guilty of that charge in addition.

Facebook as Evidence

Public lives can contradict private claims

The use of information on Facebook as evidence against claims made in court continues to arise in many courts. In Blatherwick v. Blatherwick, for example, an application for contempt was brought by Mrs. Blatherwick after Mr. Blatherwick failed to pay a judgment ordered against him. The trial judge noted that Mr. Blatherwick “continues to do and say whatever he believes is in his best interests, regardless of whether it is true or not, even when under oath” (para 13). As one particular piece of evidence, the judge noted:

On June 1, 2015 Mr. Blatherwick confirmed in a letter to Mrs. Blatherwick's counsel that "I have no cash now at all"…Yet, just like at trial, Mr. Blatherwick continued to send money and gifts to his fiancée, previous fiancée and girlfriends in the Philippines:

Desiree Domingo - a new Iphone6 (approximately $1,200). After Ms. Domingo put a photograph of the gift on her Facebook, on June 10, 2015, Mr. Blatherwick asked her to remove it because "the lawyer is still after me for money" and he “did not want the judge or the lawyer (Mr. Cox) to see that he had given her a gift";

Similarly in Chechui v. Nieman, a property division for a common law couple, the trial judge took notice of information posted on Facebook in assessing the lack of credibility of the respondent:

[8] In contrast, Ian refused in cross-examination to admit to anything he perceived might hurt his case. As just one example of this, Ian refused to acknowledge he and Victoria were a couple and living together in the summer of 2010 in Victoria's house in Toronto. He preferred to take the position that he was merely renting a room from her, overlooking his Facebook status which indicated he was in a relationship with Victoria and all of the other evidence which indicated they were cohabiting.

On much the same issue, the United States District Court of Western New York refused a spoliation motion with regard to a Facebook account in Thurmond v. Bowman. The plaintiff had tried to rent an apartment from the defendant and had eventually been refused, leading to litigation. In that litigation the defendant sought to show that the plaintiff had deleted posts from her Facebook account which had been made during the relevant period and which would have rebutted her claims about her situation in the immediate aftermath of failing to rent the apartment. The application judge concluded that the spoliation claim was not established.

The defendant’s counsel had looked at the plaintiff’s Facebook account at an early stage and had noted a number of posts which they thought were relevant. At that point they asked plaintiff’s counsel to advise the plaintiff about the notion of spoilage and not to delete anything from her account. Six months later an actual court order to that effect was put in place, but the defendant complained that a large number of relevant posts had already been deleted.

The application judge was not persuaded that the plaintiff had deliberately removed anything from her Facebook account. She had, through a separate service, provided printouts of her Facebook account to the defendant, and the trial judge noted that the only specific posts that defendant’s counsel had identified as missing from the Facebook page were included in that material. It was true that the plaintiff’s Facebook account no longer showed those posts, but that, the trial judge accepted, was because the plaintiff had in the interim changed her privacy settings so that only her friends could see the majority of her posts: defendant’s counsel were not among her friends. This was somewhat ambiguous since the plaintiff thought that her privacy settings had always only allowed her friends to see her posts, but she had adjusted them at one point, and the judge concluded that this must have changed the settings.

Otherwise the evidence from the plaintiff amounted to little more than the general claim that there used to be a lot more posts than were in the material provided, but the judge found that too vague to act on. There were three identifiable posts – pictures of children – that were not in the disclosed material – but the judge concluded that these posts had been deleted accidentally: they were similar to many other pictures which had been included, they were of no relevance and, the judge concluded “I can fathom no reason why Thurmond would intentionally delete those three posts while retaining and producing other similar posts.”

Also interesting was the trial judge’s basis for rejecting a relevance claim with regard to those posts. The defendant argued that, as the plaintiff was advancing a claim for emotional distress, her entire Facebook account was relevant. Citing many previous authorities to the same effect, the application judge dismissed that as too sweeping a claim.

Internet-based real estate brokerages get a big break from the Competition Tribunal

Toronto Real Estate Board ordered to provide virtual brokers with access to market data // Copyright arguments found to be without merit

The Competition Tribunal, in The Commissioner of Competition v The Toronto Real Estate Board [PDF], has determined that the Toronto Real Estate Board violated the Competition Act by limiting what access online services can have to multiple listing services (MLS) data and limiting what information can be provided to consumers over the internet. While the 175 page decision which canvasses a range of competition law issues, the Tribunal most notably determined that TREB’s actions hindered innovation in online real estate services. The Tribunal also determined that the real estate board does not hold copyright in the MLS data that it has jealously guarded.

The multiple listing service (MLS), with which many consumers are familiar and may have accessed via www.mls.ca or more recently, www.realtor.ca, is a complicated system with many moving parts. Brokers in Toronto gain access to the data through TREB and such access is governed by strict rules and license terms. Brokers also have an obligation to input listing information into the system, including information about pending sales and actual sales. TREB imposed specific rules on operators of Virtual Office Websites (VOWs), which are “a password-protected area of a brokerage’s website where consumers can access and search a database containing MLS information.” Under the legacy models, consumers would not have direct access to this information but would have to engage a broker to provide them with it. VOWs permit customers of particular brokers to provide a subset of the MLS data directly to consumers. However, brokers were prohibited from providing certain MLS data in this manner. The relevant rules are quoted at paragraph 95 of the decision:

  1. A member of the public may only access MLS information on a Member’s VOW if: (1) the Member has first established a broker-consumer relationship; (2) the Member obtains the name and a valid email for a consumer; (3) the consumer has agreed to prescribed “terms of use”; and (4) the consumer creates a user name and password for the Member's VOW (Rules 800 and 805); 

  2. [...]
  3. A Member, whether through their VOW or by any other means, may not make available for search by, or display to, consumers the following MLS data intended exclusively for other Members and their brokers and salespersons, subject to applicable laws, regulations and the RECO rules: 

    1. Expired, withdrawn, suspended or terminated listings, and pending solds or leases, including listings where sellers and buyers have entered into an agreement that has not yet closed; 

    2. The compensation offered to other Members; 

    3. The seller’s name and contact information, unless otherwise directed by the seller to do so; 

    4. Instructions or remarks intended for cooperating brokers only, such as those regarding showings or security of listed property; and 

    5. Sold data, unless the method of use of actual sales price of completed transactions is in compliance with RECO rules and applicable privacy laws (Rule 823).

The information in paragraph 3 is generally referred to as the “Disputed Data” in the decision. The Tribunal determined that this is discriminatory, as innovative brokers seeking to deliver services online are at a disadvantage compared to traditional brokers.

TREB asserted, as part of its case, that its practices were justified under s. 79(5) of the Competition Act, which deems the exercise of certain intellectual property rights to not be anti-competitive:

[717] TREB claims that it owns copyright in the TREB MLS Database and therefore holds valid intellectual property rights over the overall arrangement of the information in that database. Relying on subsection 79(5) of the Act, TREB submits that its VOW Policy and Rules are a mere exercise of that copyright, such that this is a complete defence to an application by the Commissioner alleging an abuse of dominance, even if the impugned practice is or is assumed to be exclusionary in effect. In other words, TREB contends that its VOW Restrictions do not constitute a practice of anti-competitive acts under section 79 because those restrictions are merely the exercise of its copyright in its MLS system, as contemplated by subsection 79(5). In any event, TREB maintains that the Tribunal does not have jurisdiction to order TREB to grant a compulsory licence of its intellectual property in this proceeding.

The Tribunal summarily dismissed the notion that TREB holds copyright in any portion of the MLS database:

[736] The Tribunal agrees with the Commissioner that, like the YellowPages in Tele-Direct ABI, TREB's MLS Database is little more than information (the vast majority of which is not subject to copyright) arranged according to accepted, commonplace standards of selection in the real estate industry. Copyright cannot exist in these circumstances, neither in the manner in which TREB has compiled the MLS Database nor in the manner of presenting or organizing the data on its website or on VOWs. The Tribunal is not persuaded that identifying certain mandatory fields or deciding what confidential information may be displayed on a VOW is sufficient to constitute the required degree of exercise of skill and judgment.

Though it determined that s. 79(5) was inapplicable, it continued its full analysis:

[754] The Tribunal agrees with the Commissioner. Subsection 79(5) attempts to balance the extraordinary statutory monopoly rights conferred by intellectual property with the public interest in competition. To strike the right balance, the Tribunal and Federal Court of Appeal have interpreted that provision narrowly. In Tele-Direct at page 32, the Tribunal distinguished a refusal to licence. However, where a respondent attaches anti-competitive conditions to the use of its intellectual property, subsection 79(5) will not immunize it from scrutiny. In this case, the two prohibitions mentioned at the end of the immediately preceding paragraph above constitute anti-competitive conditions that TREB has attached to the use of intellectual property.

[755] TREB's VOW Restrictions do not simply restrict its Members' access to the Disputed Data. They instead control how TREB’s Members display certain information sourced from the MLS Database, and how they use that information to deliver services to their customers. At the same time, TREB effectively permits or condones the dissemination of this information through more traditional means. [emphasis added]

Following the release of the written decision, the Tribunal invited submissions on the remedy, which will be issued later.

Author did not infringe copyright by writing a fictionalized book based on holocaust documentary

Federal court finds

The Federal Court of Canada, in Maltz v. Witterick, has dismissed a copyright claim made by a documentary producer against an author who released a fictionalized holocaust book which was based largely on the original documentary.

The respondent was inspired to write a children’s book about the holocaust after seeing a documentary made by the applicants. The documentary was an account of a Polish woman who harboured several Jewish families and a German deserter during the Second World War. The author saw the documentary at a screening.

The Court held that the documentary itself is protected by copyright, but that the facts on which it is based are not protected as “there can be no copyright in facts”, according to the Supreme Court of Canada case CCH Canadian v Law Society of Upper Canada. The applicant attempted to draw a distinction between “large facts” and “small facts”, where the former relate to well-known events (Germany invaded Poland) and the latter are less well-known.

[31] The Applicants’ arguments based on differences between “small” and “large” facts, with the former deserving of protection in this case and the latter not so deserving, are without merit. Copyright law recognizes no such difference or distinction. Facts are facts; and no one owns copyright in them no matter what their relative size or significance. Any alleged distinction between small and large facts is an artificial division, one which obscures what is protected by the Applicants’ copyright in the Documentary. The particular means, method, and manner the Applicants used to tell Mrs. Halamajowa’s story is protected. Their particular phrasing of the words which tell her story is also protected, such that instances of verbatim copying – i.e. transcription of the Documentary – may well constitute copyright infringement.

[32] However, using an actual fact from the Documentary is not infringement no matter how large or small, significant or insignificant, such a fact may be. There can be no copyright, for example, in the fact that during the Second World War Mrs. Halamajowa afforded refuge to three Jewish families and a German soldier, or that there was a massacre at the brickyard in Sokal during the war. As noted above, there can be no copyright in facts or ideas, but only in their expression through an exercise of skill and judgment.

On the question of whether the respondent infringed the existing copyright in the documentary, the Court considered whether there was a “substantial taking” from the documentary. The Court noted:

[37] [Cinar Corporation v Robinson, 2013 SCC 73, [2013] 3 SCR 1168] further teaches (at para 39) that a substantiality analysis should focus on whether the copied elements are a substantial part of the Documentary, not whether they are a substantial part of the Book. This being so, the entire romantic subplot of the Book between Helena and Casmir, which the Respondents say differentiates the two works, is not of substantial importance. However, as the Supreme Court cautioned in Cinar:

[40] This is not to say that differences are irrelevant to the substantiality analysis. If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement. As the Court of Appeal put it, “the differences may have no impact if the borrowing remains substantial. Conversely, the result may also be a novel and original work simply inspired by the first. Everything is therefore a matter of nuance, degree, and context” (para. 66).

[38] In determining whether a substantial part of the Applicants’ work has been taken, the quality and quantity of material taken should be considered along with the importance and originality of that material. The extent to which the infringement has adversely affected the Applicants’ activities and diminished the value of their copyright should also be considered. Whether the material taken is properly the subject of copyright, whether the Respondents intentionally took the material to save time and effort, and whether the material was used in the same or similar fashion as it was in the copyrighted work, are also questions to address in a substantiality analysis.

The applicants cited and relied on Anne of Green Gables Licensing Authority Inc. et al. v Avonlea Traditions Inc., [2000] OJ No 740, but the Court did not find this case to be applicable or helpful. The characters from the documentary who found their way into the book were real, historical people not fictional characters. To the extent that there was any verbatim copying in the book from the documentary, the Court found this to be de minimus in nature. The Court concluded:

[46] Considering the significant differences in expression, content, form, feel, and experience from the Documentary, it is apparent, on a qualitative and holistic view, that the Book is not a mere imitation of or substantial taking from the Documentary. On the contrary, the Book in its own right constitutes a new and original work of fiction emanating from historical facts; as a whole, it does not infringe the Applicants’ copyright. The Documentary is a non-fiction film; it is set in the present but reflects on the past to tell a story through a visual and auditory medium; near the end of the Documentary, there is a stirring statement that the Jewish families rescued by Mrs. Halamajowa “altogether, they have more than 100 descendants alive today.” In contrast, the Book is a fictional novel originating from historical facts; it is targeted specifically to young people, told in the first person from the perspectives of four characters, and employs a fictional character not based on any real person from the Documentary.

The Court also dismissed the applicant’s claim for infringement of moral rights.