Here's some chilling news for anyone who's ever tried to bypass a news site's paywall to view an article (most of us, probably): an Ontario court recently decided that circumventing a paywall to view content without a subscription violates Canada's recently overhauled copyright laws, and could lead to a hefty fine.
The case started in 2013 when Dan Pazsowski, CEO of the Canadian Vintner's Association, asked a colleague to send him a copy of an article about his organization that independent news outlet Blacklock's Reporter had written. Pazsowski did not have a subscription to Blacklock's, but his colleague did.
Pazsowski then contacted Blacklock's to discuss the content of the article, which he felt was inaccurate. Pazsowski was asked how he obtained the article if he wasn't a subscriber, and was sent an invoice for two individual subscriptions to the site, amounting to $314 plus taxes. According to Blacklock's terms of service, the company forbids individual subscribers from using the site's articles for anything other than personal use, and maintains that doing otherwise is a violation of copyright law.
When Pazsowski refused to pay, Blacklock's took the case to Ontario Small Claims Court. Two weeks ago, the judge ruled in favour of Blacklock's, and ordered the CVA to pay the outlet a massive $11,470 plus taxes in damages, the amount of a year-long corporate subscription (accounting for the fact that the article in question was apparently shared within CVA).
"A person who has legally purchased a book may lend it to another to read"
The ruling "is extremely unfriendly to users' rights or the right to read in Canada," University of Ottawa law professor Teresa Scassa wrote in a blog post responding to the ruling, and for good reason. Pazsowski attempted to argue that obtaining the article was protected under research provisions for fair use. However, the judge retorted that "nothing came of the research," and shot that defense down. This sets a dangerous precedent for the definition of fair dealing, Scassa wrote, because "as any researcher knows, there may be many false starts or cold trails."
Perhaps even more concerning is the judge's decision that asking a friend who does have a legitimate subscription to pass along an article amounts to bypassing technological protection measures (TPM)—in this case, a paywall.
"Can a defendant rely on the new fair dealing defense for education to excuse the copying if the defendant illegally accessed the work by circumventing a TPM to do so?" wrote e-commerce lawyer Barry Sookman in another blog post on the ruling. "No, the fair dealing defense cannot apply where a work is obtained illegally."
However, Scassa notes that the argument that says asking a colleague to send you an article they obtained legally may not hold water when it comes to the definition of a TPM.
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When I reached out to Blacklock's managing editor Tom korski for comment, Korski responded by email, saying the company would only comment after the appeal period was over on November 17th.
This isn't the first Time Blacklock's has tried to use copyright to prevent people from obtaining their articles from behind a paywall. Last year, the company took Finance Canada to court for internally passing around articles. Finance Canada maintains that the articles never made it to more than five people, and Blacklock's is seeking $17,816 in damages. That case is still before the courts.
"A person who has legally purchased a book may lend it to another to read," Scassa wrote in her post. "Is there room for the law adopt an equivalent approach for content behind paywalls?" Indeed, she adds, it doesn't seem appropriate for a site to publish something about someone and then ask them to purchase a subscription before they can read it.
The ruling is sure to come off as deeply unsettling to copyright watchdogs who have been critical of Canada's recent changes to its copyright laws, but thankfully for them, the CVA may still appeal.