Date: 20010717
Docket: T-119-98
Neutral citation: 2001 FCT 799
BETWEEN:
GREGORY H GUILLOT AND
GREGORY H GUILLOT, CHARTERED
Plaintiffs
- and -
ARVIC SEARCH SERVICES INC.
and
ISTEK CORP.
and
ARVIC SEARCH SERVICES LTD.
and
ARVIC SEARCH SERVICES (CALGARY) LTD.
Defendants
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] This is a motion for summary judgement brought by the plaintiff in which it is sought to have the Court give effect to virtually all the conclusions of the prayer for relief set forth in the statement of claim. Because I have concluded that this is not an appropriate case for the granting of summary judgment and that the issues raised by the action can only be decided after a trial, I shall keep my comments on the evidence to a bare minimum.
[2] The action is based on infringement of copyright. The plaintiff is a trademark lawyer practising in the United States. He has written and published a number of articles on trademark matters. He has also created an Internet "site" which contains a compilation created by him of a number of "links" to other sites containing matters relating to trademarks.
[3] The defendant has also created Internet sites. It is alleged that those sites contained, and to a far lesser extent still contain, material substantially reproduced from the plaintiff's site. Two areas of breach of copyright are alleged in particular: first, it is said that the defendant's site contained an invitation to any person visiting that site to obtain unauthorised access to and copies of two articles written by the plaintiff; second, it is said that the defendant's sites reproduce substantial parts of the plaintiff's compilation of links to other sites. [A further claim to the effect that the individual links themselves were works in which the plaintiff had copyright which had been infringed by the defendant was abandoned at the hearing of the motion.]
[4] I have concluded, not without some regret, that I cannot safely decide either question on the present state of this record. There has been some admitted copying and the amounts at issue are relatively small so that the cost involved in pushing the matter through to trial and judgment would almost certainly leave both parties in a losing position; if the matter could be disposed of on a motion like this that would clearly be to their advantage. However, the affidavit evidence is such that I cannot be satisfied that it would be fair or proper for me to give a final judgment based thereon.
[5] First, with regard to the alleged copying of the plaintiff's compilation of links, there is an indication on the material produced by the plaintiff himself that he consented and agreed to the amendments which were made to the defendant's sites in February 1997, immediately following on an informal complaint made by the plaintiff. There is thus at least a possible contradiction in the plaintiff's evidence. If, after hearing both parties and assessing their respective credibility, the Court concluded that there had been such consent given, that fact would clearly have a considerable impact on the type of remedy to be given and even quite possibly on whether there should be any remedy at all.
[6] Subsidiarily, while there is admittedly some identity, (and even some copying,) of parts of the link compilations, I find it impossible on the present evidence to assess whether such parts are qualitatively substantial. Any compilation of publicly available materials is bound to include a high degree of identity with any other compilation of the same materials. There is no expert evidence to show me that the defendant's compilations are necessarily or even likely based on the plaintiff's work or in what respect the latter is in its conception, presentation or arrangement original and that such originality has been copied by the defendant.
[7] Turning next to the plaintiff's articles, it is, of course, clear that the defendant must at least have copied or reproduced them to the extent necessary to convert them from their original digital form in which he received them into an English text capable of being read by humans. Counsel for plaintiff concedes, however, that for any document published digitally on the Internet there is an implied license to reproduce or copy to the extent necessary to take communication and make personal use of the document. But there is no convincing evidence that the defendant ever did anything more than what he was impliedly authorised to do and his evidence is that he did not. While the plaintiff may at trial be able to prove that the defendant has reproduced his work or offered to do so without first seeking authorisation as the defendant swears he intended to do, the contradictory evidence on this point does not persuade me.
[8] At the hearing, I commented to both counsel on the entire absence of expert evidence in this file. The technology involved in Internet publication is not a matter of judicial notice or knowledge. Many of the words used to describe what appears to be happening on the screen in front of one are quite obviously metaphors and the Court cannot assume that they accurately describe what is actually taking place. Since copyright is itself a statutory (and highly technical) right, it is only appropriate that where technical and non-traditional forms of creation, production, copying or reproduction are in issue, the Court should receive proper technical guidance. Both parties have failed in this regard and the result is very unsatisfactory.
[9] I conclude that the motion for summary judgment should be dismissed. In the circumstances, I would order that the costs of the motion be in the cause. As already stated, this is, in my view, a case in which there will be no winner and I would strongly urge the parties and their counsel to make a serious effort to reach an out-of-Court solution to their differences which, at bottom, are not insurmountable.
ORDER
The motion for summary judgment is dismissed, costs in the cause.
Judge
Ottawa, Ontario
July 17, 2001
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