BACKGROUND:

 

SPEECH –

An example of “public speech”, in this context, would be an open and notorious change to one’s LinkedIn profile, such as adding a project, an interest, or a competency and skill; and then positively choosing to publicize these profile changes to one’s network.

 

WHISPER –

An example of a “public whisper”, in this context, would be changing one’s skills or communication preferences to show openness to career opportunities, thereby letting recruiters know that one might be interested in opportunities; willingly sharing one’s LinkedIn profile with potential recruiters; or making a public speech as above, but then “specifically” choosing to not announce this profile change to one’s network or to members of the general public.

 

LINKEDIN

LinkedIn    (“LinkedIn”) is a very widely-used networking site that allows users to choose between making such public speech and public whispers, in their settings preferences.

 

hiQ

hiQ Labs, Inc. (“hiQ”), is a data analytics entity that has developed and deployed automated “bots” that can access public speech and that last definitional element of a public whisper[1] (hushed or stealthy profile changes) on LinkedIn in a Skill Mapper, allegedly not always in accordance with LinkedIn user-selected visibility preferences,[2] and then further share, publicize or sell the results whether in the raw or aggregated formats to its own customer base of interested employers and parties and persons attempting to contact such job-seeking, job-interested, and passively job interested LinkedIn users.

 

“Companies like LinkedIn, Twitter and Facebook view scraping of the data generated by their users not just as theft – they sometimes charge to license data (to higher level business users) – but a violation of their users’ privacy, because some information can be limited so not all users can view it”[3] [additional words in parentheses].

 

Understandably, LinkedIn, “which charges recruiters, salespeople and job hunters for higher levels of access to profile data”,[4] issued a 3-page cease-and-desist letter to hiQ on May 23, 2017,[5] advising the recipient that it was in violation of the LinkedIn user agreement with those behaviours, notifying  the recipient that additional security precautions had been implemented to prevent any recurrence, demanding that the recipient delete and destroy all such “improperly obtained material” in its possession or custody or control, and putting the recipient on notice that any further such behaviour would be in violation of applicable state and federal laws, with citation to a leading 2015 case in that jurisdiction of the United States federal District Court for the Northern District of California (USDC, NDCA), in which the court had barred similar “website data scraping” conduct.[6]

 

hiQ promptly filed for a Temporary Restraining Order (TRO) in California federal court (USDC, NDCA),[7] to bar any actual application of that cease-and-desist language pending ultimate determination of the underlying matters in a court of competent jurisdiction.  And so it was, that on Monday, August 14, 2017, the court granted hiQ its TRO.[8]

 

 

ANALYSIS:

 

CRAIGSLIST

In the case that LinkedIn cited within its cease-and-desist letter to hiQ, Craigslist, Inc., had filed a Complaint against the defendant, but the defendant had not timely answered.  As a result, Craigslist then applied for and was granted, a Default Judgement.[9]  According to the ruling, a certain Brian Niessen, a Craigslist user, had answered a Craigslist advertisement posted by another Craigslist user, for a “Skilled Hacker at Scraping Web Content”.[10]  Niessen had described himself as a hacker, and professed that he was already scraping several thousand websites, including “[c]raigslist, Twitter, Groupon, Zagat, and others.”[11]  3taps then entered into a business relationship with Niessen to continue his scraping, for them, which Craigslist stated was in violation of its terms of use (TOU) and constituted a breach of contract because Niessen, as a registered Craigslist user, had agreed to the TOU on several occasions.[12]

 

“The TOU prohibit, among other things, “[a]ny copying, aggregation, display, distribution, performance or derivative use of craigslist or any content posted on craigslist whether done directly or through intermediaries, […]”[13]

 

Craigslist did secure injunctions against the Niessen co-defendants, including Lovely, PadMapper, and 3taps.[14]  However, Niessen – named along with those co-defendants in the Amended Complaint with its 17 Claims for Relief,[15] was somewhat more elusive; as he was first difficult to effectively serve with the Complaint, and then after being served, he failed to provide an answer within the specified time.[16]  As a result, the Clerk of Court first entered a Notice of Default against Niessen, and then Craigslist made Motion for a Default Judgement against Niessen, which the court granted.[17]

 

 

LINKEDIN –

LinkedIn had sought a response by May 31, 2017 to its cease-and-desist letter of May 23, 2017.[18]  However, hiQ filed its Complaint for Declaratory and Injunctive relief against LinkedIn on June 7, 2017.[19]  In summary, with the first paragraph of the Introduction for same, hiQ writes:

 

“This is an action for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202, and for injunctive relief under California law.  hiQ seeks a declaration from the Court that hiQ has not violated and will not violate federal or state law by accessing and copying wholly public information from LinkedIn’s website.  hiQ further seeks injunctive relief preventing LinkedIn from misusing the law to destroy hiQ’s business, and give itself a competitive advantage through unlawful and unfair business practices and suppression of California Constitutional free speech fair guarantees.  hiQ also seeks damages to the extent applicable.”[20]

 

hiQ did promptly and appropriately seek and retain counsel to engage in discussions with LinkedIn upon receipt of the cease-and-desist letter, in order to better understand LinkedIn’s position and seek an accommodative solution to their serious differences.[21]  LinkedIn argued through counsel that it was protecting the interests of its users and seeking to remedy violations of state and federal laws; and hiQ argued through counsel that not only did LinkedIn lack any proprietary interests in the posted data, which was still owned by its users, but that LinkedIn was therefore attempting to “pervert the purpose of the laws at issue by using them to destroy putative competitors, engage in unlawful and unfair business practices and suppress the free speech rights of California citizens and businesses.”[22]

 

On May 30, 2017, hiQ then sent its own letter to LinkedIn seeking the ongoing interim website access that would allow it to persist as a going concern – because “complying with LinkedIn’s demands would essentially destroy hiQ’s business”,[23] while continuing discussions towards “a mutually amicable resolution” of their impasse.  However, on receiving no response, hiQ filed its Complaint for declaratory and injunctive relief.[24]

 

 

HIQ –

The parties entered into a standstill agreement that preserved hiQ’s access to the public LinkedIn data, and agreed to convert hiQ’s original motion into one for a preliminary injunction, after the court had heard the initial party arguments on the hiQ complaint on July 27, 2017.[25]  In California federal District Court, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.[26]  Within the United States Court of Appeals for the Ninth Circuit, which lays-down controlling precedent for United States Federal District Courts in California and several other states and territories,[27] there is a sliding scale for the standard of proof on these elements; which means “a stronger showing of one element may offset a weaker showing of another.”[28]

 

The court also grappled, inter alia, with the language of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030,[29] which prohibits and sanctions unauthorized (whether lacking authorization ab initio or with authorization later revoked), or improperly elevated or improperly applied access to a computer or computer system, because although the LinkedIn profiles were public, they rested on one or more private servers, which were computers.[30]  However, as the court finally opined, “[…] hiQ has, at the very least, raised serious questions as to applicability of the CFAA to its conduct.[31]

 

“The CFAA must be interpreted in its historical context, mindful of Congress’ purpose. The CFAA was not intended to police traffic to publicly available websites on the Internet – the Internet did not exist in 1984. The CFAA was intended instead to deal with “hacking” or “trespass” onto private, often password-protected mainframe computers.”[32]

 

With regard to hiQ‘s claims that the LinkedIn conduct had violated applicable California free speech laws, the court was more circumspect.  hiQ had cited to Robins v. Pruneyard Shopping Ctr.,[33] a case involving attempts to curtail political speech in a privately-owned shopping mall, to analogize that the LinkedIn site was a public forum akin to a shopping mall with guaranteed free access, free speech, and free association, because “[…] the state’s guarantee of free expression may take precedence over the rights of private property owners to exclude people from their property.”[34]

 

The court was very loathe to start traveling down this most slippery of slopes, stating that: no court had, as yet, extended Pruneyard to the internet in so complete a manner; unlike a shopping mall, the Internet had no single controlling authority; there may result significant repercussions on the capacity of social media hosts to curate posted materials in such a public forum; and there was a lingering question as to whether the same rules would apply to the websites of small, medium, and large entities, alike.[35]  The court therefore concluded, that “[i]n light of the potentially sweeping implications discussed above and the lack of any more direct authority, the Court cannot conclude that hiQ has at this juncture raised “serious questions” that LinkedIn’s conduct violates its constitutional rights under the California Constitution.[36]

 

On the balance, the court agreed that hiQ had raised enough of a question as to whether LinkedIn’s actions against it had violated the provisions of California’s Unfair Competition Law (UCL)[37] by “leveraging its power in the professional networking market for an anticompetitive purpose”;[38] disagreed that hiQ had either claimed to be a third-party beneficiary of LinkedIn’s promise to its users that they could control the publicity of their profiles, or shown that a third-party could assert such a claim of promissory estoppel in the first instance;[39] and agreed that the public interest favoured a granting of hiQ’s injunction, because “[i]t is likely that those who opt for the public view setting expect their public profile will be subject to searches, date (sic) mining, aggregation, and analysis.”[40]

 

 

CONCLUSION:

 

Of note, regarding all of its claims and especially the estoppel claim, hiQ had also argued that LinkedIn had long acquiesced to its usage of the website and publicly available user data in this way; including attending hiQ conferences where the host thoroughly explained its methodology and business model, and even gave at least one LinkedIn employee an award.[41]  Indeed, some industry commentators have opined that LinkedIn has merely had a change in policy subsequent to its acquisition by Facebook which the courts should not enjoin, and they foresee several other negative repercussions from the outcome of this case if hiQ prevails, and they expect LinkedIn to appeal the District Court ruling.[42]  However, there are also several strong voices supporting hiQ that see negative repercussions if LinkedIn prevails.[43]

 

Suffice it so say that for now, LinkedIn has been Ordered to withdraw its cease and desist letters to hiQ, and stop blocking hiQ, both with immediate effect from the August 14, 2017 date of the Order of Edward M. Chen, United States District Judge.[44]

 

We await LinkedIn’s appeal,[45] if any, but in the interim …… all who so do, are advised to publicly shout, and to publicly whisper, with caution, because they never know who might be cataloguing their words – and where those words that they own might land; (or more specifically, land the originator of those very words) in this Gig e-conomy[46] that exemplifies the gentle admonition that “sharing is daring!

 

 

*********************************************************************

 

Author:

Ekundayo George is a lawyer and sociologist.  He is a keen student of organizational and micro-organizational behavior and has gained significant experience in regulatory compliance, litigation, and business law and counseling.  He has been licensed to practise law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services and Public Finance, Public Procurement, Healthcare and Public Pensions, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors.

 

Of note, Mr. George has now worked at the municipal government, provincial government, and federal government levels in Canada, as well as at the municipal government, state government, and federal government levels in the United States.  He is also a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and enjoys complex systems analysis in legal, technological, and societal milieux.

 

Trained in Legal Project Management (and having organized and managed several complex projects before practising law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: healthcare; education and training; law and regulation; policy and plans; statistics, economics, and evaluations including feasibility studies and business cases; infrastructure; and information technology/information systems (IT/IS) – also sometimes termed information communications technologies (ICT).  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

 

[1] See Infra note 7 at Introduction, ¶2.  hiQ does specifically state in its Complaint, that: “hiQ does not analyze the private sections of LinkedIn, such as profile information that is only visible when you are signed-in as a member, or member private data that is visible only when you are “connected” to a member. Rather, the information that is at issue here is wholly public information visible to anyone with an internet connection.”  But See HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 6.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

“LinkedIn maintains that […] while the information that hiQ seeks to collect is publicly viewable, the posting of changes to a profile may raise the risk that a current employee may be rated as having a higher risk of flight under Keeper even though the employee chose the Do Not Broadcast setting. hiQ could also make data from users available even after those users have removed it from their profiles or deleted their profiles altogether. LinkedIn argues that both it and its users therefore face substantial harm absent an injunction; if hiQ is able to continue its data collection unabated, LinkedIn members’ privacy may be compromised, and the company will suffer a corresponding loss of consumer trust and confidence” [emphasis added].

[2] Id. at Introduction, ¶5.  On this point, hiQ writes to specify LinkedIn’s 5 levels of profile visibility preference, and emphasize its own limited access to and use of same:

“LinkedIn members can choose to (1) keep their profile information private; (2) share only with their direct connections; (3) share with connections within three degrees of separation; (4) allow access only to other signed-in LinkedIn members, or (5) allow access to everyone, even members of the general public who may have no LinkedIn account and who can access the information without signing in or using any password. It is only this fifth category of information – wholly public profiles – that is at issue here: hiQ only accesses the profiles that LinkedIn members have made available to the general public.”

[3] Thomas Lee.  LinkedIn, HiQ Spat Presents Big Questions for Freedom, Innovation.  Published July 8, 2017 on sfchronicle.com.  Web: <http://www.sfchronicle.com/business/article/LinkedIn-HiQ-spat-presents-big-questions-for-11274133.php#comments>

[4] Ibid.

[5] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[6] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[7] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017).  COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[8] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[9] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA).  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[10] Id. at 2.

[11] Ibid.

[12] Id. at 3.

[13] Id. at 2.

[14] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. October 9, 2015).  ORDER Granting Application for Default Judgment, issued by Charles R. Breyer, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <http://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv03816/257395/280/>

[15] Craigslist, Inc v. 3Taps, Inc et al, 12-cv-03816-CRB (N.D. Cal. November 20, 2012).  First Amended Complaint.

Web: <http://www.3taps.com/images/pics/430_Amended Compalint .pdf>

[16] Supra note 14 at 3.

[17] Ibid.

[18] LinkedIn Corporation.  RE: Demand to Immediately Cease and Desist Unauthorized Data Scraping and other Violations of LinkedIn’s User Agreement.  Letter dated May 23, 2017.  Web: <https://static.reuters.com/resources/media/editorial/20170620/hiqvlinkedin–ceaseanddesist.pdf>

[19] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF.  Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA).  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[20] Id. at Introduction, ¶1.

[21] Id. at ¶¶27-8.

[22] Id. at ¶28.

[23] Id. at ¶¶34, 38, 46.

[24] Id. at ¶29.

[25] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 3.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>…

[26] Id. at 4.

[27] The United States Court of Appeals for the Ninth Circuit covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington state.  See generally Geographical Boundaries of United States Courts of Appeals and United States District Courts.  Online: <https://www.supremecourt.gov/about/Circuit Map.pdf>

[28] Supra note 25 at 4.

[29] Congress of the United States, United States Code18 USC 1030: Fraud and related activity in connection with computers.  Title 18: Crimes and Criminal Procedure; Part I: Crimes; Chapter 47: Fraud and False Statements. Web: <uscode.house.gov/browse/prelim@title18/part1/chapter47&edition=prelim>

[30] Supra note 25 at 10.

[31] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 16.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[32] Id. at 10.

[33] See Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 905 (1979).

[34] Supra note 31 at 18

[35] Id. at 19.

[36] Id. at 20-21.

[37] See Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §17200 et seq.

[38] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[39] Id. at 23.

[40] Id. at 24.

[41] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-LB (N.D. Cal. June 7, 2017). COMPLAINT FOR DECLARATORY JUDGMENT UNDER 22 U.S.C. § 2201 THAT PLAINTIFF HAS NOT VIOLATED: (1) THE COMPUTER FRAUD AND ABUSE ACT (18 U.S.C. § 1030); (2) THE DIGITAL MILLENNIUM COPYRIGHT ACT (17 U.S.C. §1201);(3) COMMON LAW TRESPASS TO CHATTELS; OR (4) CAL. PENAL CODE § 502(c); INJUNCTIVE RELIEF TO ENJOIN: (1) INTENTIONAL INTERFERENCE WITH CONTRACT AND PROSPECTIVE ECONOMIC ADVANTAGE; (2) UNFAIR COMPETITION (CAL. BUS. & PROF. CODE § 17200); (3) PROMISSORY ESTOPPEL; AND (4) VIOLATION OF CALIFORNIA FREE SPEECH LAW; AND RELATED MONETARY RELIEF. Filed 2017, in the United States District Court for the Northern District of California (USDC, NDCA), at ¶7.  Web: <https://www.unitedstatescourts.org/federal/cand/312704/1-0.html>

[42] See generally Tristan Greene.  The future of your data could rest in the outcome of LinkedIn vs HiQ case.  Posted August 24, 2017 on thenextweb.com.  Web: <https://thenextweb.com/insider/2017/08/24/hiq-is-the-david-to-linkedins-goliath-in-legal-battle-over-user-data/#.tnw_Q1Tn05Hv>…

[43] Id.

[44] HiQ Labs, Inc. v. LinkedIn Corporation, 17-cv-03301-EMC (N.D. Cal. August 14, 2017).  Order Granting Plaintiff’s Motion for Preliminary Injunction, issued by Edward M. Chen, United States District Judge, United States District Court for the Northern District of California (USDC, NDCA), at 21.  Web: <https://assets.documentcloud.org/documents/3932131/2017-0814-Hiq-Order.pdf>

[45]  – Reserved

[46] For a general overview of the Gig e-conomy and its monopoly potential, see e.g. Ekundayo George.  Monopolies and Market Dominance in the “GIG” e-conomy: What Might These Look Like / Are We There Yet?  Published July 16, 2017 on ogalaws.wordpress.com.  Web: <https://ogalaws.wordpress.com/2017/07/16/monopolies-and-market-dominance-in-the-gig-e-conomy-what-might-this-look-like-are-we-there-yet/>

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SCC_2015

WHAT IS MAINSTREAM RELIGION?

There are many faiths in this world of ours. These range from about 36 (“thirty-six”) mainstream ones;[1] through a handful of known or colonially-inspired and often derided, or not so widely accepted or even historically acceptable ones;[2] to the very many thousands of traditional beliefs, and “new-age” faiths.[3]

Just as there exists this multiplicity, there is also a wide variety of state systems within which they operate. These range from sole state religions, as in the case of Saudi Arabia; tolerant Islamic states (including Iraq under Hussein, Libya under Ghaddafi, and Syria under both Assad Senior and Assad Junior), all of which allowed or still try to protect, the existence and exercise of myriad Islamic branches, Christianity, and Judaism; preferred state religions – witness the preference for Chinese Buddhism over Tibetan Buddhism; and systems where a dominant mainstream religion co-exists with others as with India’s many Christians, Moslems, and members of other faiths, or in the tolerance of Japanese mainstream Shinto for several other faiths. The predominant peace under tolerant mainstream systems compares quite starkly with rising religious strife in many parts of the world, including Africa, Europe, or other jurisdictions where relatively stable systems, despite their real or alleged imperfections, were dramatically and lastingly upset of recent.

WHY THE FUSS?

Into this milieu, steps the Supreme Court of Canada, with a recent ruling based on freedom of conscience and religion,[4] but it works to promote freedom from conscientious religion in a multicultural and pantheistic democracy. This slippery slope raises the stakes as the decision promoted Atheism, which, being a non-religion (by self-definition), is free to be raised above mainstream, new age, and traditional faiths. Over time, as one or more mainstream faiths quaver under this rising pressure, will the other mainstream faiths stand together to defend their uncommon ground,[5] or will they join the fray and squeeze one another until all are equally diluted, or banned outright in their public exercise as offensive to Atheism – because the state cannot be seen (or be alleged) to have favoured one or some, over the others whether within the province of Quebec,[6] or within the entire Canadian Federation?[7]

Also, looking more closely at the globally-pervasive United States currency, our neighbor to the south (which reads “In God we trust”), and listening to elected and electioneering politicians all over the world who consistently ask God to bless both their electorates and nations, one starts to see how widespread religion truly is, and what it would mean if all this were to suddenly be declared unconstitutional, and/or ordered to cease. This goes far beyond the case at bar, and begs the further question: can government entities in Canada (and government-licensed or government-regulated entities, such as municipalities and the banks) one day be barred from trading, holding, or aiding Canadians in using, U.S. currency?

This may all seem like absurd scaremongering at this time. However, the shadow cast by the decision has potentially far-reaching consequences, as I will show with the following analysis and conclusions.

EARLIER RULINGS:

In the Canadian City of Saguenay, Quebec, the mayor would commonly commence and end City Council meetings with a prayer.[8] There were also religious symbols in some City Council chambers. Alain Simoneau, a resident of Saguenay who regularly attended these meetings of the City Council, found this all to be religious and therefore offensive to his own Atheist status, and so Simoneau had initially asked the Mayor to stop the practice.

The Commission.

When the Mayor refused, Simoneau sought relief at the Quebec Commission des droits de la personne et des droits de la jeunesse (hereinafter the “Commission”) for violation of his rights under sections 3 and 10 of the Quebec Charter of Human Right and Freedoms.[9] The Commission focused on whether the prayer was discriminatory (choosing not to consider the religious symbols, and so stating) and found so in the affirmative; however, it left Simoneau to pursue his claims further on his own, at the Human Rights Tribunal (hereinafter “Tribunal”).[10]

The Tribunal.

As this was happening, the Saguenay City Council passed a Bylaw changing the prayer’s wording and providing for a break between the prayer’s recitation, and the actual start of its meetings.[11] In addition, Simoneau was joined in his complaint to the Tribunal by the Mouvement laïque québécois (hereinafter “MLQ”), with a joint and amended application that now also sought a declaration that the Bylaw was ineffective and of no force or affect as against S.[12] The Tribunal found an actual and detrimental breach of the state’s duty of religious neutrality and granted the declaration,[13] awarding S $30,000 in compensatory and punitive damages (of the $50,000 originally sought), and ordering that the City and mayor cease and desist in the prayer within council chambers and remove all religious symbols (including a Sacred Heart statue and a crucifix) from rooms where council meetings were held.[14] The City Council and mayor appealed, and the Quebec Court of Appeal reversed the Tribunal’s decision.[15]

The Quebec Court of Appeal.

The Quebec Court of Appeal made sure to first note the implicit duality of modern religious freedom, at paragraph 59 of its decision:

Freedom of religion exists in two distinct forms. The first, characterized in case law and commentary as the positive aspect doctrine […] is essentially the recognition that every person has the right to hold religious beliefs and to profess them openly. The second is expressed in a negative form in that it is forbidden to impose coercion or constraint upon the choice to act in accordance with one’s conscience or to impose a religious choice.[16] [Emphasis added].

Citing to the evidence of the expert witnesses before the Tribunal, Gagnon, J.A. wrote at paragraph 88, that: “I take from the opinions of these experts that the values expressed by the prayer at issue are universal and cannot be identified with any particular religion. According to these experts, this prayer is consistent with modern theistic doctrine, open to some reasonable non-invasive and religious particularities.”[17] [Emphasis added]. Further bolstering this conclusion, Gagnon, J.A. also noted the ongoing recitation of prayer in the House of Commons (albeit with the doors closed to the public),[18] the affirmation of God’s supremacy in the preamble to the Canadian Charter of Rights and Freedoms (Charter),[19] and adoption of a resolution by the Quebec National Assembly in May, 2008, to preserve the cross in its blue room and on the Quebec Coat of Arms,[20] to conclude that: “[i] am convinced by these examples that the principle of the religious neutrality of the State is intended to promote tolerance and openness in regard to diversity and not to exclude from the reality of a society any references to its history, albeit religious.” […] “I conclude, on the basis of the foregoing, that the content of the prayer included in Bylaw VS-R-2008-40 cannot constitute an infringement to the neutrality of the City.”[21] In reversing the Tribunal decision, Gagnon, J.A., ruled that any constraint on the stated rights of Simoneau by the infringement, was therefore “trivial or insubstantial”.[22] In addition, the religious symbols were “for a significant portion of the population, deprived of their religious connotation (…).”[23] In the final analysis, he wrote: “(…) I add that it has not been shown that Simoneau was the subject of a distinction in violation of the principles of substantive equality. In any event, the demonstration of harm is non-existent here.”[24]

Far from being one-sided, however, he did rebuke the mayor of Saguenay for being so cavalier in freely expressing his personal religious beliefs – by crossing himself so brazenly while in public office, and openly bragging of his love for and support of Christ.

These are words and behaviour that reflect a basic lack of reserve from one who holds an elected position and participates in the governance of the City on a daily basis. It seems quite inappropriate that a prestigious office could be used to promote one’s own personal religious beliefs. Moreover, nobody has argued before this Court that the voters of the City of Saguenay chose their representatives for their avowed belief in any divinity.[25]

Concurring in the overall result but disputing the choice of Gagnon, J.A., to deal with the issue of religious symbolism (which the Tribunal had exceeded its authority in addressing), Hinton J.A., wrote that: “[t]he issue of religious symbols is both delicate and difficult. In the context of this appeal, there are certainly distinctions to be made between the legality of a 20-second, non-denominational prayer recited in public before the opening of the Council meetings of the City Saguenay when it is still possible to leave the room and the permanent presence of religious symbols in two of the City’s three meeting rooms, on the other.[26] But, as Hinton J.A. rightly and perhaps clairvoyantly stated, the matter would likely still arise at a time and place in which it could be more timely and more fully addressed.

In light of this, it is certainly possible that the issue of the legality of crucifixes in courtrooms where trial judges always sit (many of whom are not Catholic or of any denomination) will be debated some day. Ultimately, courthouse courtrooms serve the entire population of Quebec, including its interconfessional and non-denominational components.[27]

AT THE SUPREME COURT:

The Supreme Court of Canada diverged completely from the prevailing conclusion of the Quebec Court of Appeal that “[w]hile Simoneau does invoke several irritants that he elevates to the level of injury, his arguments do not withstand scrutiny.”[28] The Court therefore reversed the Quebec Court of Appeal, modified the prevailing standard of review, and re-affirmed the original decision of the Tribunal.[29]

Preceded and followed by the Councilors making the sign of the cross and the mayor stating: “[i]n the name of the Father, the Son and the Holy Spirit”,[30] the text of the offending prayer as used between 2002 and November of 2008, read:

[TRANSLATION] “O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity.

We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.

Amen.[31]

As reproduced by the Court, the Bylaw, VS-R-2008-40, adopted by council on November 3, 2008, read in pertinent part as follows:

“[TRANSLATION] WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings [are preceded by] the recitation of a prayer, the text of which is reproduced below;

WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors;

WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion;

WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation;

WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety;

NOW THEREFORE, it is enacted as follows:

SECTION 2 — Bylaw VS-2002-39 is amended to add section 16.1, which provides the following:

SECTION 16.1 — Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below.

Almighty God, we thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.

Amen.

To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room, the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer.”[32]

In the Quebec Court of Appeal, Gagnon, J.A. had ajudged the Tribunal to be a specialized body considering a matter of public importance, but one over which it lacked exclusive jurisdiction; and therefore he had chosen to apply the “correctness” standard of review to the overall decision.[33] However, regarding evidence admitted by the Tribunal from an improperly qualified expert, Gagnon, J.A. ruled that, “(…) this Court has the duty to intervene, when warranted by circumstance, if it is established that there has been a palpable and overriding error on this issue.”[34] Writing for the supermajority of the Supreme Court, Gascon J, put an end to this bifurcation of standards on appeal.

First, Gagnon J.A. applied both administrative law principles related to judicial review (the correctness standard) and tests applicable to appeals (palpable and overriding error). With respect, the result is a confusing conceptual hybrid. Given the current state of the Court of Appeal’s case law on this point, it seems to be hard for litigants to understand the rules. Clarification is needed to ensure greater consistency and some predictability. Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.[35] [Emphasis added].

Further, citing the line of reasoning developed in the 2002 Supreme Court case of Housen v. Nikolaisen,[36] Gascon J, wrote that “[w]here an appeal concerns a question of law, intervention is required if the decision is incorrect. Where an appeal concerns a question of fact or a question of mixed fact and law, intervention is warranted if there is a palpable and overriding error.”[37] Weighing one (albeit obiter) line of reasoning in the Quebec Court of Appeal that permitted review of a decision based on expanded criteria not considered below or as otherwise limited by traditional judicial review,[38] against a competing line of reasoning in that same court that frowned on such practices,[39] Gascon J, ruled that with regard to the state’s duty of neutrality on the question of religion itself, “I am of the opinion that, in this case, the Court of Appeal properly applied the correctness standard on this question.”[40] Subsequently, with regard to the remaining questions and indeed the entirety of the case, he then used a different line of Supreme Court cases and reasoning,[41] to conclude as follows:

“However, it was not open to the Court of Appeal to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise. The same is true of the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted. The Tribunal is entitled to deference on such matters. The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.[42] (Citations omitted). (Emphasis added).

Gascon J, also and unequivocally agreed that the Court of Appeal had properly concluded that it lacked jurisdiction to consider the religious symbols at issue,[43] because “where a complainant has a right to submit his or her own application to the Tribunal, the scope of the remedy is limited by the work done beforehand by the Commission. The Tribunal’s jurisdiction is circumscribed by that work. In a discrimination case, the application to the Tribunal is intended to be an extension of the investigation conducted by the Commission in response to a complaint.”[44] In essence, matters not considered, were unavailable for a later ruling by a court of review, because there was, essentially, nothing to review.

On the question of the prayer itself, and its discriminatory nature, Gascon J, stated the rule that, “[i]n a case such as this, the practice of reciting the prayer and the By-law that regulates it result in the exclusion of Mr. Simoneau on the basis of a listed ground, namely religion. That exclusion impairs his right to full and equal exercise of his freedom of conscience and religion.”[45] From there, he further stated that, “[f]or the purposes of the protections afforded by the charters, the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.[46]

Defining the scope and impact of the state’s duty of neutrality per se, which promotes “diversity and multiculturalism[47] and remains “based on a democratic imperative[48], Gascon J, iterated that:

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (…).[49]

He further took issue with the conclusion at the Court of Appeal that perfect neutrality must bow to “benevolent neutrality”,[50] due to certain historical and cultural precedents, wherein he stated that,

If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction, exclusion or preference that has the effect of nullifying or impairing the right to full and equal recognition and exercise of freedom of conscience and religion, there is discrimination.[51]

Gascon J, also found that the Oakes balancing test applied to any analysis of section 9.1 of the Quebec Charter of Human Rights and Freedoms,[52] – as equivalent to section 1 of the Canadian Charter of Rights and Freedoms,[53] when the offending Saguenay prayer and Bylaw were considered against that section 9.1. Even then, though, neither prayer nor Bylaw could be saved from invalidity under such analysis,[54] and the Quebec Court of Appeal had also erred in finding the Tribunal’s qualification of Simoneau’s expert improper.[55]

On a final note, Gascon J, distinguished the instant case from Allen v. Renfrew County,[56] an Ontario case wherein a similar prayer recitation by council was deemed not to be an infringement of the rights of others.[57] He further distinguished between abstaining from religion (which he deems true neutrality), and taking a stance for atheism and/or agnosticism (which he deems unbelief); writing at paragraph 133:

A practice according to which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.”[58]

Then, however, Gascon J, hurriedly dismissed both the strong Allen precedent and the Freitag obiter from the Court of Appeal for Ontario as inapplicable, on the ground that the latter decision “does not close the door on the application of the justificatory provision”, which provision the Tribunal in the instant case had deemed of no recourse.[59] Also declining to consider the prayer practices of the House of Commons – citing a lack of evidence before it on the purpose of the prayer and speculating that it might, nevertheless, be protected by Parliamentary privilege, Gascon J, concluded in addition that “it would be inappropriate for the Court to discuss its content or to use it to support a finding that the City’s prayer is valid.[60] Further, regarding the Charter preamble which reads: “[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:[61], that is a mere articulated ““political theory”” underlying those Charter protections.[62]

“Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that is expressly provided for in the charters.”[63]

From that point onwards, the Court’s conclusions stand out as worthy of note. For example, the Tribunal’s ultra vires declaration of invalidity (“inoperative and invalid”) with regard to the offending bylaw, was also amended, retroactively, and read-down, to be a simple declaration of inoperability.[64] Then, the Tribunal’s compensatory damages award, although based on admittedly improper grounds, was also left to stand.[65] In addition, although conceding with regard to the Tribunal’s punitive damages, “that in civil law such damages are an exceptional remedy”,[66] the Tribunal’s award of same was left to stand without any consideration of the Supreme Court’s own longstanding test for such awards that was annunciated in Whiten.[67] Instead, the Court chose to follow (and affirm) the Tribunal’s reliance for its punitive damages award on de Montigny v. Brossard (Succession), 2010 SCC 51 (CanLII), [2010] 3 SCR 64 – which distinguished Whiten at its own paragraph 54,[68] and Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211 – which preceded Whiten in time by a full 6 (“six”) years but gave the test for “punitive damages” – being in the court’s discretion as opposed to mandatory, in cases alleging violation of the Quebec Charter.[69]

An onlooker may be excused for feeling that the offending conduct was stretched to fall within the test. To whit, the law states: “[i]n case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”[70]

Whereas, the cited case provided – and I think it useful to recite the entire paragraph, that:

Consequently, there will be unlawful and intentional interference within the meaning of the second paragraph of s.49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test.”[71] [Emphasis added].

Efforts by the mayor and council to comply with the law by amending the prayer and procedures around it to more closely follow apparently good caselaw, can hardly be seen as “unlawful and intentional interference”. The mayor’s boasts alone, showing his state of mind and intent to exercise his own rights to religious freedom, although admittedly “wild and foolhardy” for someone in his position, can hardly be elevated to any desire or intent to cause harm to Simoneau.

SHADOW IMPLICATIONS:

This decision clearly puts an end to overtly religious prayer, in public, before or during council meetings across Canada. However, like-minded councilors may still pray together on their own before entering the council chambers, and it is arguable that non-denominational prayers may still be acceptable – for now. Moments of silence appear to be fine, providing that there are no religious outbursts or cries of “Amen”, that would put such silence practices into disfavor, disrepute, or suspected lack of neutrality.

Does the Saguenay case explicitly overrule Allen (prayer, even if Christian, can be allowed in certain cases)? I would say yes! Does the Saguenay case invalidate Freitag’s obiter (non-denominational prayers might still be allowed, in certain cases and with proper safeguards)? I would say almost! The Supreme Court will likely wait until another case puts that practice squarely within its pleas for relief.

It would seem that freedom OF religion has now become freedom FROM religion under Canadian caselaw and Human Rights Codes. However, this wholesale move towards total religious neutrality puts Canada on a very slippery slope in the overly broad shadow now cast across all faiths by the decision. I will illustrate the potential reach of this “total religious neutrality” shadow in a series of hypothetical questions, backed by selected, additional quotations from the Supreme Court’s decision.

Generally:

  1. Will there come a time when no public official can mention, be seen to publicly celebrate or endorse, or even wish Canadians a “blessed”, or simply a “happy” Christmas Day, Boxing Day, Good Friday, or Easter Monday (Christianity), as it would interfere with the state’s duty of religious neutrality? This quagmire may also extend to other major faiths, banning or hindering participation in all prayers at or regarding, and all support (conceivably one day including financial support of cultural groups that may be used for religious activities, or cultural events with a religious context), including but not limited to Yom Kippur and Hannukah (Judaism), Diwali and the Hindi, Bengali, and Tamil New Years (Hinduism), Eid-al Fitr and Eid-al-Adha (Islam), and the Chinese New Year (Buddhism)? Will all Canadians be relegated to celebrating only the non-denominational Kwanza in December, or will that, too, be lost?

“This being said, it must be recognized that the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature. Although it is clear that not all of these cultural expressions are in breach of the state’s duty of neutrality, there is also no doubt that the state may not consciously make a profession of faith or act so as to adopt or favour one religious view at the expense of all others.”[72] [Emphasis added].

  1. Will any adherent of any specific theistic faith be discouraged from participating in the rites and rituals of his or her own faith, just because they hold public office? It is, after all, the duty of politicians to “relate to” and otherwise “participate in” the daily lives and cultures of their constituents, to the extent able. Is engaging in a political campaign an “official duty” or “official function” of a political incumbent or aspirant?

“Where state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others, the first two criteria for discrimination mentioned above, namely that there be an exclusion, distinction or preference and that it be based on religion, are met.”[73] [Emphasis added].

  1. Will this religious neutrality discourage the holders of sincere religious beliefs, from competing for or accepting public office, due to the restrictions that this would pose on their personal beliefs? The multiplicity of faiths in Canada means that not all can be accommodated during political and election season. Hence, some will be omitted and thus appear to be disfavoured, and those included might therefore appear to be favoured.

“The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.”[74] [Emphasis added].

  1. Will we witness a banning or blue-penciling (re-writing to conform to law) of the oaths and affirmations of the myriad professional bodies that refer to God or gods, simply because these licensing bodies take their self-regulatory powers from the state, and must therefore also be religiously neutral?
  1. How soon, until the very books of faith, are banned outright from public spaces, or simply excluded as the “hitherto devoid of religion” basis for taking any firm oath or making any binding affirmation in Canada’s courts and tribunals, and during the swearing-in ceremonies for public officials and lawyers?
  1. How many intentional practices, incidental government services, or implicitly personal actions will be curtailed due to the fact that they may, somehow, promote or favour one of the many possible faiths?

Europe:

  1. Will Canada move further along this spectrum to follow the European examples (Belgium, France, Germany, and Spain) of banning religious symbols, clothing, and practices in schools and public places? What, if any, will be the difference in treatment between a headscarf, a turban, a skull cap, prayer beads, a rosary, a kirpan,[75] and a crucifix; and who will have the final say?[76]
  1. What will be the effects on internationally guaranteed religious and cultural freedoms to which a multicultural Canada has acceded by its membership in global institutions, and its ratification of global treaties and accords that touch and concern human and cultural rights?[77]
  1. How – with the highest court in the land now having passed its judgement and short of taking a case outside Canada, can any Canadian Citizen or resident of sincere faith seek recourse and recompense for national and provincial violations of international law, with respect to their freedoms of religion, conscience, cultural enjoyment, and speech or expression in an “officially” multicultural Canada?
  1. With the rise of new faiths (such as Kopimism),[78] can atheism somehow or someday be deemed and construed as a religion, and therefore brought under that same rubric of laws constraining the others?[79]
  1. Is Canada, wittingly or unwittingly, setting itself up for intermittent and/or interminable religious conflict(s)?  Thoughts and prayers are often invoked in the case of any disaster around the world.  Will this phrase, also, soon be a relic?

CONCLUSION:

These are all hard questions to answer, today. However, as time progresses, we may see some or all of them answered in Canada’s Human Rights Tribunals, and courts of first and later review. This downhill snowball is now rolling, and gaining both speed and mass. If care is not taken, we’ll all face the choice to live (or leave) with its end-results – whether devastating, or neutral, or devastating in their neutrality.

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies have included program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

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[1] Reading in alphabetical order, these roughly 3 (“three”) dozen mainstream faiths would include the Ahmadiyya, Amish, Anglican, Ayyavazhi, Baha’i, Baptist, Buddhist, Catholic, Confucian, Coptic, Druze, Hindu, Eastern Orthodox (itself comprising some 18 independent denominations), Ethiopian Orthodox, Evangelical, Ismaili, Jain, Jewish, Lutheran, Mennonite, Methodist, Pentecostal, Rastafarian, Seventh Day Adventist, Shia, Shinto, Sikh, Sufi, Sunni, Tao, Rastafarian, Yazidi, Zaydi, and Zoroastrian.

See Wikipedia. Eastern Orthodox Church. Online: <http://en.wikipedia.org/wiki/Eastern_Orthodox_Church>

[2] These include Aum Shinkriyo, Cargo Cults, Falun Gong, Hare Krishna, Satanism, Vodun, Wicca, and even Kopimism which I wrote about in an earlier post. See e.g. Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: < https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[3] Traditional beliefs range from ancestor worship, through the veneration of spirits and natural phenomena (popular amongst the First Americans, the Peoples of all parts of Africa and Europe, and the Peoples of Asia and the Pacific) that still prevail to this day despite significant inroads made by those above mainstream religions. Countless examples abound that include Asatru, Candomble, Druidism, Ifa, Lukumi, Macumba, Mugyo, Santeria, Shamanism, Shenism, and Famadihana (which is the ritual exhumation and reburial of the dead). Additional, “new age” faiths would include the Nation of Islam, Rajneesh Movement, Scientology, Unificationism (Moonism), and certain forms of Yoga and Transcendental Meditation.

[4] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> This was a supermajority decision of 8 (“eight”) Justices of the Supreme Court of Canada, with the ninth and last Justice concurring.

[5] Indeed, to recognize Atheism as a functioning, fellow faith flower takes away this kind of power that it has to detour around and devour others. Perhaps this is a path worthy of pursuit.

[6] Government of Quebec. Charter of Human Rights and Freedoms. R.S.Q., chapter C-12.

Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html> Relevant provisions follow.

PART I: HUMAN RIGHTS AND FREEDOMS

CHAPTER I: FUNDAMENTAL FREEDOMS AND RIGHTS.

Fundamental freedoms

  1. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

1975, c. 6, s. 3.

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.  1982, c. 61, s. 2.

CHAPTER I.1: RIGHT TO EQUAL RECOGNITION AND EXERCISE OF RIGHTS AND FREEDOMS

  1. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.  1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3.

10.1. No one may harass a person on the basis of any ground mentioned in section 10.  1982, c. 61, s. 4.

  1. No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. 1975, c. 6, s. 11.
  1. No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 1975, c. 6, s. 15.

CHAPTER IV: ECONOMIC AND SOCIAL RIGHTS

  1. Every person has a right to information to the extent provided by law. 1975, c. 6, s. 44.

CHAPTER V: SPECIAL AND INTERPRETATIVE PROVISIONS

Recourse of victim for unlawful interference.

  1. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Punitive damages.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.  1975, c. 6, s. 49; 1999, c. 40, s. 46.

PART II: COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE

CHAPTER III: COMPLAINTS

  1. The commission may also apply to a tribunal for any appropriate measure against any person who attempts to take or takes reprisals against a person, group or organization having an interest in the handling of a case of discrimination or exploitation or having participated therein either as the victim, the complainant, a witness or otherwise.

The commission may, in particular, request the tribunal to order that, on such date as it deems fair and expedient under the circumstances, the injured person be instated in the position or dwelling he would have occupied had it not been for the contravention.  1975, c. 6, s. 82; 1989, c. 51, s. 5.

[7] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

  1. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[8] Supra note 4.

[9] Supra note 5.

[10] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> at para. 9-10. Simoneau had also been joined in his complaint to the Commission by the MLQ. See Infra, note 12 herein and accompanying text.

[11] Id. The Bylaw was règlement vs-r-2008-40, city of Saguenay, November 3, 2008.

[12] Id.

[13] See Simoneau c. Tremblay, 2011 QCTDP 1, [2011] R.J.Q. 507, [2011] AZ-50722559, [2011] Q.H.R.T.J. No. 1 (QL), 2011 CarswellQue 7400 (WL Can.) Decision issued February 9, 2011. Online: <http://www.soquij.qc.ca/decisions/fr/50722559_an-1.doc> [Emphasis added]. *Original and quoted versions differ due to translation.

“[250] […] Given the findings resulting from the analysis of the religious nature of the prayer and the symbols, the Tribunal is of the view that the use of public power in order to display or convey a particular faith has the effect of imposing values and religious beliefs and practices on people who do not share them. In so doing, the City and the Mayor are favouring one religion over another, whereas under its duty of neutrality, the State should refrain from intervening such that a preference is exercised.”

“[251]     The reciting of a prayer and the exhibiting of religious symbols in the state-controlled space constituted by the meetings of the municipal council, where representatives of the people discuss questions of public interest, also have a non-trivial exclusionary effect that substantially stigmatizes people who do not share those values. As expert Baril indicated in his report and testimony, the fact that people are exposed against their will to symbols and symbolic representations, through an identity ritual such as the reciting of the prayer, makes that religious practice coercive, since the only way around it is to be physically or symbolically excluded.”

[252]      The religious content of the bylaw thus sends religious minorities and atheists the message that, in the public sphere, there is still a gap between them and the dominant religious culture conveyed by the political authorities. In Freitag, the Court of Appeal for Ontario concluded that the fact that a person must comply with the beliefs of the majority is a subtle and constant reminder of his or her difference from the majority: […]

[14] Id. [Emphasis added]. *Original and quoted versions differ due to translation.

“[210]     Moreover, as the Tribunal pointed out in Laval, it has been well established in the jurisprudence that [TRANSLATION] “the basic freedom that constitutes the freedom of religion and conscience compels the state to be neutral”. Owing to that obligation, the state authority cannot, because of its collective nature, make use of the power it exercises in order to promote the personal religious beliefs of the individuals who perform political functions, without interfering in a manner that is more than trivial or insubstantial in the right to the free exercise of religious belief or conscience.”

“[225]     For the following reasons, the Tribunal concludes that the reciting of the prayer at public Ville de Saguenay meetings and the presence of religious symbols in the rooms where the meetings are held impair Mr. Simoneau’s right to full and equal recognition of his freedom of conscience and religion without discrimination based on religion, namely, his right not to be subjected to, or forced to hold, a conviction or engage in a religious practice he does not believe in during public meetings led by people representing the political authority in the exercise of their duties.”

“[301] Due to the very nature of the freedom that the right to equality is combined with here, no accommodation would be able to actually guarantee the religious equality of the citizens. When the right to equality is combined with the State’s duty of religious neutrality, the duty to provide reasonable accommodation arises as a negative requirement that is unique in its ability to ensure, in such a context, the equality of all in the exercise of freedom of conscience and religion. Therefore, to ensure the religious equality of all citizens, regardless of their beliefs in this area, State officials gathered together for a political meeting held in a public space cannot fulfill their legal obligations other than by completely abstaining from praying and displaying religious symbols.”

[15] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), [2013] R.J.Q. 897, 363 D.L.R. (4th) 62, 76 C.H.R.R. D/430, [2013] AZ-50969282, [2013] Q.J. No. 5220 (QL), 2013 CarswellQue 7596 (WL Can.) Court of Appeal Case No.: No.: 200-09-007328-112 (150-53-000016-081). Decision issued May 27, 2013. Online: <http://www.canlii.org/en/qc/qcca/doc/2013/2013qcca936/2013qcca936.pdf>

[16] Id. at 59.

[17] Id. at 88.

[18] Id. at 94.

[19] Id. at 100.

[20] Id. at 102.

[21] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 106, 108.

[22] Id. at 115.

[23] Id. at 125.

[24] Id. at 130. See also para. 131.

[25] Id. at 152. See also Infra, note 29, 2015 SCC 16 at 116-17.

[26] Id. at 164.

[27] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 170.

[28] Id. at 132.

[29] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16.

[30] Id. at 6.

[31] Id. at 7.

[32] Id. at 12.

[33] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 35, 37.

[37] “The issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction. Given the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal. It is thus according to the standard of review of correctness that this appeal must be must be decided.” (sic) [Emphasis added].

[34] Id. at 49.

[35] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 29.

[36] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[37] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 33.

[38] Coutu v. Tribunal des droits de la personne, [1993] R.J.Q. 2793 (C.A.).

[39] Commission scolaire Marguerite-Bourgeoys v. Gallardo, 2012 QCCA 908, [2012] R.J.Q. 1001, at paras. 47-51.

[40] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 49.

[41] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47, 54-55, 60; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 23); and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at paras. 14-15.

[42] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 50.

[43] Id. at 53, 61.

[44] Id. at 57.

[45] Id. at 64.

[46] Id. at 70.

[47] Id. at 75.

[48] Ibid.

[49] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 74.

[50] Id. at 77.

[51] Id. at 78.

[52] See Supra, note 6.

[53] See Supra, note 7.

[54] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 89-90. Indeed, the Supreme Court found at paragraph 100, that neither the old prayer alone, nor the new prayer with the Bylaw, could pass as non-religious, or religious but being of minimal interference with the rights of S, as they were far too religious and far too public. Indeed, at paragraph 101, the Supreme Court further found the Bylaw’s addition of two minutes that allowed those not in favour of staying for the prayer to exit the chamber “highlights the exclusive effect of the practice.”

[101] “(…) although the wording was modified somewhat by the By-law as of 2008, the new wording changed neither the nature nor the substance of the prayer. Both wordings constituted an invocation to God, attributing benefits enjoyed by the City and its citizens to him, and asking him to guide the council’s deliberations. (…) These recitals from the preamble show that the prayer was intended as support by the City for the religion professed by individual councillors.” 2015 SCC 16, at 100.

[55] Id. at 109.

[56] Allen v. Renfrew County, 2004 CanLII 13978 (ON SC), at 27, 69 O.R. (3d) 742, [2004] O.J. No. 1231. Online: <http://www.canlii.org/en/on/onsc/doc/2004/2004canlii13978/2004canlii13978.html>

[27] “The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in a Christian or other denominational form of worship. The mere mention of God in the prayer in question is not in this court’s opinion, sufficient in its effect on the applicant to interfere in any material way with his religious beliefs.” 2004 CanLII 13978, at 27.

Allen v Renfrew had itself, been preceded by a ruling striking-down council prayer by the Court of Appeal for Ontario, which stated that a “non-denominational” prayer (similar, perhaps, to the one recited in the House of Commons) might have passed the section 1 balancing test of the Charter. See e.g. Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ON CA), at 51-52, 47 OR (3d) 301; 179 DLR (4th) 150; [1999] OJ No 3524 (QL). Online: <http://www.canlii.org/en/on/onca/doc/1999/1999canlii3786/1999canlii3786.html>

[57] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 127.

[58] Id. at 133, 134.

[59] Id. at 140.

[60] Id. at 144, 143.

[61] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Preamble.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

[62] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 147.

[63] Id. at 148.

[64] Id. at 151-154.

[65] Id. at 160.

[66] Id. at 161.

[67] Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html?autocompleteStr=whiten%20v.%20&autocompletePos=1>

[68] de Montigny v. Brossard (Succession), [2010] 3 SCR 64, 2010 SCC 51 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2010/2010scc51/2010scc51.html?autocompleteStr=2010%20scc%2051&autocompletePos=1>

[69] Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211. Online: <http://www.canlii.org/en/ca/scc/doc/1996/1996canlii172/1996canlii172.html>

[70] Supra note 6. Quebec Charter of Human Rights and Freedoms, at section 49. R.S.Q., chapter C-12. Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html>

[71] Supra note 69. Quebec (Public Curator) v. Syndicat national, 1996 CanLII 172 (SCC), [1996] 3 SCR 211, at para. 121.

[72] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 87.

[73] Id. at 84.

[74] Id. at 119.

[75] But see contra, Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, 2006 SCC 6 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.html>

In that now dated case, the Supreme Court of Canada ruled that the ban by a Quebec school authority on the carrying of kirpans by non-violent adherents of the Sikh faith, would violate section 2(a) – freedom of conscience and religion, of the Canadian Charter of Rights and Freedoms. It is now questionable whether this decision will be left to stand.

[76] See generally Human Rights Watch. Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. Posted December 22, 2010, on hrw.org. Online: <http://www.hrw.org/news/2010/12/21/questions-and-answers-restrictions-religious-dress-and-symbols-europe>

[77] Ibid. Fuller treatment of potentially impacted international rights and freedoms is beyond this limited blog post.

[78] Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: <https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[79] See generally supra note 5, and accompanying text.

Aereo has had quite an exciting ride since its advent on the business scene and unbridled challenge to incumbents in the media and broadcast space,[1] to its defense of several and serial legal and regulatory challenges that went as far as the United States Supreme Court,[2] its maneuvering to find some safe harbor that would permit continued operations,[3] and its eventual succumbing in filing for bankruptcy,[4] after losing the fight against a temporary injunction[5] that sounded the death knell of its business model.

 

Of course, if you subscribe to the “circle of life, death, and rebirth”, then an end may also be a beginning, as shown by regulatory hints or suggestions[6] that the copyright and broadcast rules may be changed or even go so far as to favour entities such as Aereo in the future.[7] However, we will only know and believe it when we can see, sell, order, download, and display it (and out of), prime time.

 

Whether the company was a little guy (with big funding), that was just too far ahead of its time,[8] or an upstart that flaunted the law and appropriately got slammed for it,[9] varies by audience. On that much, we can all continue to disagree. However, until such time as another Aereo rises, or the rules change to invite same, Aereo is a part of business and media history,[10] and rather unlikely to make a comeback.

 

In all corners of the media and infotainment space – both new and old, lessons have been taught, and hopefully learned.

_____________________________________________________

Author:

Ekundayo George is a lawyer and a sociologist.  He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling, diverse litigation, and regulatory compliance practice.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications through work in the Satellite Policy Branch, International Bureau, at the Federal Communications Commission, eCommerce, Outsourcing, and Cloud contracts); Financial Services, Healthcare, Entertainment, Real Estate and Zoning; International/cross-border trade and other service industry sub-sectors; and Environmental Law & Policy.  A published author on the National Security aspects of Environmental Law, he has also represented clients in courts and before regulatory bodies in both the United States and Canada, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

As a Lead Consultant and founder of a consulting subsidiary, Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on small, medium and large strategic projects with multiple stakeholders and multidisciplinary teams.  Our selected consulting competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education and Training; Law and Regulation; Policy and Plans; Statistics, Economics, and Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT) in other parts of the world.  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

********************************************************************

[1] See Ekundayo George. WNET, THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Posted April 28, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/<

[2] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict. Posted June 26, 2014, on ogalaws.wordpress.com. Online: > https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[3] Aereo sought relief and an operating reprieve by way of the statutory licensing of cable transmissions through the below section of the Copyright Act; with itself to be deemed as a cable broadcaster in light of analysis within the United States Supreme Court’s ruling. However, the Copyright Office declined to grant it that status in a letter to Aereo of July 16, 2014, as the Aereo transmissions were not sufficiently “localized”. The Copyright Office did, however, accept the filing provisionally, pending further legislative or regulatory developments.

 

17 U.S. Code §111 – Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable. See Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, United States Copyright Office. Letter to Aereo. Re Section 111 Statement of Account Filings, dated July 16, 2014. Posted on nab.org and visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/071614_Aereo_Copyright_Office_letter.pdf< See also Cornell Legal Information Institute (LII), 17 U.S.C. §111. Online: >http://www.law.cornell.edu/uscode/text/17/111<

 

Aereo also sought relief from the FCC, in having itself deemed a multichannel video program distributor (MVPD) over the internet. Noting a lack of clear legal rules that could assist new entrants in their challenge to incumbents, and their efforts at market expansion in favour of the consumer, Counsel for Aereo wrote in the letter, that:

 

“The Commission could provide such assurance to new market entrants like Aereo by defining or construing “MVPDs” to include systems that transmit linear channels of video programming to consumers via the internet—thereby securing to all MVPDs, in a technology-neutral way, the right to engage in timely, good faith negotiations to license channels by retransmission consent.”

 

After meeting with the FCC Commissioners and senior staffers to present its case and plea for an expedited notice of proposed rulemaking (NPRM) procedure, however, and before the Commission could issue a ruling on the matter, the New York Federal District Court made its adverse preliminary injunction ruling against Aereo.

 

“Finally, Aereo emphasized that timely Commission action is crucial to its ability to bring such a service to market. Issuing the proposed NPRM within the next several weeks, and adopting the proposed rule within several months thereafter, would support Aereo’s re-launch as a viable and sustainable new entrant in competition with incumbent MVPDs.”

 

See Seth Greenstein, Esq., of Constantine Cannon LLP, Counsel to Aereo. Letter to the Federal Communications Commission (FCC), Re: Ex Parte Presentation Notice, Interpretation of the Terms “Multichannel Video

Programming Distributor” and “Channel,” MB Docket No. 12-83, dated October 10, 2014. Published on apps.fcc.gov. Online: >http://apps.fcc.gov/ecfs/document/view?id=60000972464<

[4] On November 20, 2014, Aereo filed for protection from its creditors under Chapter 11 (reorganization) of the United States Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York. The case number is 1:14-bk-13200. See Pacer for a fuller chronology of the petition. Online: >https://www.pacermonitor.com/public/case/5258727/Aereo,_Inc<

[5] See American Broadcast Companies, Inc., v. Aereo, Inc., 12-cv-1540, and WNET et al. v. Aereo, Inc., 12-cv-1543, October 23, 2014 temporary injunction Opinion and Order of The Honourable Alison J. Nathan, United States District Judge, in the United States District Court for the Southern District of New York. Posted on nab.org, visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/102314_Aereo_injunction.pdf<

 

“In light of the Supreme Court’s decision, Plaintiffs are now able to demonstrate a likelihood of success on the merits. The balance of hardships also now tips in their favor and, as previously held, an injunction would not disserve the public interest, Aereo I, 874 F. Supp. 2d at 403-404.”

Opinion and Order at page 16: III Conclusion.

 

The court in its ruling, soundly rejected both the Aereo’s arguments under 17 U.S.C. §111 (community antenna television system/cable broadcaster), and 17 U.S.C. §512(a) (innocent conduit). See also 17 U.S. Code §512 – Limitations on liability relating to material online. Published on Cornell Legal Information Institute (LII). Online: >http://www.law.cornell.edu/uscode/text/17/512<

[6] See T.C. Scottek. FCC considers backdoor rule change that could jumpstart the era of internet television. Posted May 23, 2012, on theverge.com. Online: >http://www.theverge.com/2012/5/23/3038777/fcc-rule-change-internet-tv-cable-mvpd< In 2012, conventional wisdom placed the FCC on the verge of re-interpreting the word “channel” under the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), to be used both ““in a “container” sense, to refer to a range of frequencies used to transmit programming, and in a “content” sense to refer to the programming itself,”” which would have put internet television providers (online video distributors, or “OVDs”) such as Hulu and Netflix into the same category as mainstream cable and satellite companies – such as Comcast and TimeWarner, and forced the incumbent major networks to provide them with content as multichannel video programming distributors (MVPDs). However, the initiative did not hold its ground.

[7] Chairman Tom Wheeler, the United States Federal Communications Commission (FCC). Tech Transitions, Video, and the Future (Official FCC Blog). Posted October 28, 2014, on fcc.gov/blog. Online: >http://www.fcc.gov/blog/tech-transitions-video-and-future<

 

“The mantra “Competition, Competition, Competition” fits perfectly with consumers’ desires for video choices. That’s why I’m asking my fellow Commissioners to update video competition rules so our rules won’t act as a barrier to this kind of innovation. Specifically, I am asking the Commission to start a rulemaking proceeding in which we would modernize our interpretation of the term “multichannel video programming distributor” (MVPD) so that it is technology-neutral. The result of this technical adjustment will be to give MVPDs that use the Internet (or any other method of transmission) the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets.”

 

“A key component of rules that spur competition is assuring the FCC’s rules are technology-neutral. That’s why the definition of an MVPD should turn on the services that a provider offers, not on how those services reach viewers. Twenty-first century consumers shouldn’t be shackled to rules that only recognize 20th century technology.” (Emphasis added).

 

[8] TMP Staff. Aereo bankruptcy: A visionary tech startup killed off by big media and courts? Posted November 22, 2014, on techmediapolitics.com. Online: >http://www.techmediapolitics.com/aereo-bankruptcy-a-visionary-tech-startup-killed-off-by-big-media-and-courts/<

[9] Joan E. Solsman. Aereo’s bankruptcy filing marks a fade to black: After months of “not dead yet” declarations, the streaming-TV startup files for Chapter 11 reorganization, the clearest sign that a Supreme Court ruling set it on a road to nowhere. Published November 21, 2014, on cnet.com. Online: >http://www.cnet.com/news/aereo-files-for-bankruptcy-protection/<

[10] See e.g. Aereo. The Next Chapter. Posted November 21, 2014, on blog.aereo.com. Online: >http://blog.aereo.com/2014/11/next-chapter/<

INTRODUCTION:

President Barack H. Obama’s signature initiative in having passed and signing an Act for the affordable healthcare of all Americans,[1] has suffered under a constant onslaught of challenges. This has ranged from initial and ongoing opposition resistance from the Republican party,[2] through snafus in the setup for and registration under, the Act,[3] to court challenges on several fronts.[4]

 

ISSUE:

As the PPACA (more commonly known as the Affordable Care Act or “ACA”) is a federal law, those court challenges must be brought in the Federal District Courts of the various states. Appeal from the ruling of one of the 94 District Courts lies to a Circuit Court of Appeal, of which there are thirteen – twelve regional, and one for the Federal Circuit.[5] This usually ends a matter, as there is no automatic right to be heard at the next level of appeal, which is the United States Supreme Court (U.S.S.C.). The reason for that, is because the U.S.S.C. is not obligated to grant Certiorari (hear a case), except in special instances. One of those instances is a situation where the Circuit Courts are split on a key point.  This just happened in the case of the PPACA/ACA (the Act), involving the D.C. Circuit, [6] and the Fourth Circuit.[7] Hence, Certiorari from the U.S.S.C. may well be in sight.

 

The question arises with regard to interaction between the Act, and the United States Internal Revenue Code (IRC), at Section 36B of the latter. At Sections 1311(b)(1) and 1321(c)(1) of Act, both the states and the federal government, respectively, are enabled to establish healthcare Exchanges. As a consequence of this apparent dual mandate, the IRC has permitted subsidy reimbursement (as a tax credit) for healthcare coverage obtained through either one of the federal or the state Exchanges, under IRC Section 36B.[8]

 

D.C. Circuit (Halbig):[9] Not all states have established Exchanges, but the District of Columbia has. The case concluded at the Circuit Court that only healthcare coverage purchases made through state healthcare Exchanges were eligible for reimbursement under IRC Section 36B. Hence, it follows that some or all of the subsidies for federal plans, may well be illegal within the District of Columbia.

 

Fourth Circuit (King):[10] This case, however, concluded the Circuit Court that only healthcare coverage purchase made through federal healthcare Exchanges, were eligible for reimbursement under IRC Section 36B. Hence, it follows that some or all of the subsidies for state plans, may well be illegal in states covered by that Circuit.

 

 

SUMMARY:

Once again, we must wait to see which case gets the Act back into the hands of the Supreme Court Justices, and then digest the result. It seems that this Act, promises one or more scenes to come!

 

*********************************************************************

 

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

 

[1] United States Government. The Patient Protection and Affordable Care Act (PPACA), PL. 111-148, effective March 23, 2013.  This Act is sometimes also known as “Obamacare”, “The Affordable Care Act”, or simply, “ACA”.  Published on healthcare.gov. Visited July 31, 2014. Online: >https://www.healthcare.gov/where-can-i-read-the-affordable-care-act/<

[2] Sarah Kliff. Why have Republicans voted 30 times to repeal Obamacare? To increase uncertainty. Published on washingtonpost.com, July 9, 2012. Online: >http://www.washingtonpost.com/blogs/wonkblog/wp/2012/07/09/why-have-republicans-voted-30-times-to-repeal-obamacare-to-increase-uncertainty/<

[3] CBS News/Associated Press. Nearly 500K sign up during messy rollout of ACA, WH says. Published on kmov.com, October 20, 2013. Online: >http://www.kmov.com/news/mobile/Nearly-500K-sign-up-during-messy-rollout-of-ACA-WH-says-228556951.html<

[4] See e.g. National Women’s Law Center (NWLC). Status of the Lawsuits Challenging the Affordable Care Act’s Birth Control Coverage Benefit. Published on nwlc.org. Visited July 31, 2014. Online: >http://www.nwlc.org/status-lawsuits-challenging-affordable-care-acts-birth-control-coverage-benefit<

[5] See generally. United States Courts. Courts of Appeals. Published on uscourts.gov. Visited July 31, 2014. Online: >http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/CourtofAppeals.aspx<

[6] Halbig v. Burwell, 14-5018, opinion of July 22, 2014. >http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254d91f8bac85257d1d004e6176/$file/14-5018-1503850.pdf<

[7] King v. Burwell, 14-1158, opinion of July 22, 2014. >http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf<

[8] 26 U.S. Code § 36B – Refundable credit for coverage under a qualified health plan.

(a) In general

In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.

(b) Premium assistance credit amount

For purposes of this section—

(1) In general

The term “premium assistance credit amount” means, with respect to any taxable year, the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year. (…)

Published on Cornell legal Information Institute (LII). Visited July 31, 2014. Online: >http://www.law.cornell.edu/uscode/text/26/36B<

[9] Supra note 6.

[10] Supra note 7.

 

In April, we presented a brief summary of the Aereo case, its history, and some of the issues, laws, and policies at stake,[1] as the case awaited a final judicial opinion from the United States Supreme Court (U.S.S.C.). Now, the U.S.S.C. has ruled,[2] and the result for Aereo, was bad.

 

WHO (which side or what) WON?

The broadcaster won, as Aereo was found to have infringed their exclusive copyrights in making near-simultaneous “transmissions”[3] of the copyrighted works at issue through its record-and-stream service, to any subscriber “personal computer, tablet, smart phone, Internet-connected television, or other Internet-connected device.”[4]

 

The Judges

Six Judges formed the majority opinion (Holding) – delivered by Breyer, J, and joined by Roberts, C.J., and Kennedy, Ginsburg, Sotomayor, and Kagan, JJ. Three Judges felt and would have ruled otherwise (Dissent), which Scalia, J, delivered, and Thomas and Alito, JJ, joined.

 

WHY?

Each transmission (under the Aereo service “watch” function)[5] was deemed to be a performance (with viewer initiation deemed an insufficient intervening issue to render Aereo akin to a copy shop that could not be held liable for patron copyright infringement),[6] and each such performance was deemed to be a performance to the public (with no weight given to the fact that they received their performances individually).[7] In its Holding, however, the Court noted that it was not issuing any opinion on the copyright status of transmitting the pre-recorded programming that an Aereo customer had recorded for later playback through the service[8] (the “record” function).[9] Neither, for that matter, was it passing issue on any other technologies that had not been brought before it:

We agree with the Solicitor General that “[q]uestions involving cloud computing,[remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.[10]

 

Similarly, the availability of additional action from Congress, was also acknowledged:

And we note that, to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.[11]

 

WHAT NEXT?

 

In the Case

The verdict below (denying the injunction) was reversed, and the case was remanded to the United States Court of Appeals for the Second Circuit for further proceedings accordingly.

For Aereo:

Now, Aereo must shut down under a temporary injunction pending final disposition of the additional issues on remand. It can then:

(a) never re-open;

(b) re-open under a new business model that (it might claim) does not infringe copyright;

(c) re-open after negotiating mutually-acceptable copyright licensing fees with the broadcasters (which will be unlikely, as the rates requested will likely make Aereo subscriber-fees equal to or higher than cable rates in order for good cost-recovery and preservation as a going concern);

(d) re-open, as led by a “rogue element” or in the form of a copycat/knock-off, in a jurisdiction that has a different view of United States and international copyright laws – and perhaps other laws, as seems the norm in the current climate, but with varying results (as with Bitcoin, Mega Upload, proponents of online gambling, and others); or

(e) pursue a fifth, as yet undetermined path.

 

In Congress:

The United States Congress is, as always, free to consider amending or clarifying any law that might jeopardize or impinge negatively, upon existing or proposed business ventures.

 

For Everyone Else:

In the meantime, other cases may be brought (citing this ostensibly limited Aereo precedent), by and between competitors who want to shut each other down. The field (and courts) may become quite crowded as the level and depth of “artful pleading” on the topic progresses.

(…) [T]hen (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loop­holes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.[12]

 

THE DISSENT

The dissenting opinion also deserves some further consideration. Justice Scalia found that Aereo made no performance whatsoever – whether public or private – and he championed the copy shop analogy in his opinion, [13] as earlier stated.

The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come.[14]

 

Further criticising the Courts “guilt by resemblance regime”,[15] Justice Scalia notes that there is a lack of any “volitional conduct” by Aereo:

(i) as contemplated by the language of the Copyright Act and legal authorities on the Copyright Act;[16]

(ii) that has been upheld by every United States Circuit Court that has opined on the issue (an upon which the Supreme Court still had yet to rule);[17] and he further finds –

(iii) that Aereo is essentially neither like a video-on-demand service nor a pure and simple copy shop; “[r]ather, it is akin to a copyshop that provides its patrons with a library card[18] (in the form of those Aereo antennae that customers can use to call-up programming that may either be in the public domain already, or still remain copyright-protected).

 

Ironically, even though Justice Scalia appears to have concurred in the practical result (reversal and remand) but not the process, his dissent is not captioned as so concurring, and he goes to great lengths to critique the legal result (bifurcation into 2 separate tests for primary infringement: the traditional volitional act standard, and the new Aereo lookalike standard).

I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As discussed at the outset, Aereo’s secondary liability for performance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringement.

 

Justice Scalia feels that the Aereo ruling has opened a can of worms, but the majority feels that it has effectively kicked the ball back into the Congressional corner for much needed clarification through amendments that accord to the modern (and fast-changing) technological landscape. Sadly enough, I think that both sides of the Court may be right in their predictions, and the amendment process will be hard-fought with many more related cases in the interim.

 

So, did the public interest win, as I had originally hoped? I would say no, because a broader or more comprehensive ruling would have settled more issues, saved on judicial resources (in future cases re-biting this apple), and clarified the landscape for those related current businesses such as the cloud, proposed or potential future businesses, and of course, Aereo itself. As things now stand, the United States Court of Appeals for the Second Circuit may still be second-guessed by the United States Supreme Court on the matter of Aereo’s secondary liability for performance infringement, primary and secondary liability for reproduction infringement, or related matters; as may other Circuit courts if there are glaring or highly technical splits in their opinions on copyright law and related matters going forwards.[19]

 

Clearly, this issue has not been fully, effectively, or finally settled.[20]

 

*********************************************************************

 

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

[1] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Published on ogalaws.wordpress.com, April 28, 2014. Online: > https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/< The case is actually 2 cases: WNET Thirteen et al. v. Aereo Inc.; and American Broadcasting Companies, Inc., et al v. Aereo, Inc.  The Supreme Court decision uses the latter case caption.

[2] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Opinion, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

[3] See Cornell Legal Information Institute (LII). U.S. Code: Title 17 – Copyrights. Online: >http://www.law.cornell.edu/uscode/text/17<

 

17 U.S.C. §101 – Definitions.

To perform or display a work “publicly” means-

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. (Emphasis added).

[4] Supra note 2.  American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014), Slip Op. (Holding) at 2.

[5] Justice Scalia discussed the “watch” and “record” functions in his dissent.  See Id. Slip Op. (Dissent) at 11.

[6] Id. Slip Op. (Holding) at 10.

In other cases involving different kinds of service or technology providers, a user’s involvement in the operation of the provider’s equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act. But the many similarities between Aereo and cable companies, considered in light of Congress’ basic purposes in amending the Copyright Act, convince us that this difference is not critical here. We conclude that Aereo is not just an equipment supplier and that Aereo “perform[s].”

See also Infra, note 13 and accompanying text.

[7] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Holding) at 15, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

Similarly, an entity that transmits a performance to individuals in their capacities as owners or possessors does not perform to “the public,” whereas an entity like Aereo that transmits to large numbers of pay­ing subscribers who lack any prior relationship to the works does so perform. (…) In other words, “the public” need not be situated together, spatially or temporally. For these reasons, we conclude that Aereo transmits a performance of petitioners’ copyrighted works to the public, within the meaning of the Transmit Clause.

[8] Id. Slip Op. (Holding) at 17.

We cannot now answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us.

[9] Id. Slip Op. (Dissent) at 11. Legality of the “record” function is one of the matters set for resolution on remand.

[10] Id. Slip Op. (Holding) at 17, citing to the Brief for United States as Amicus Curiae 34 (itself quoting Sony, supra, at 431 (alteration in original)).

[11] Id.

[12] See e.g. American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Dissent) at 12, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

[13] Id. Slip Op. (Dissent) at 4.

[T]he customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer’s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy.

[14] Id. Slip Op. (Dissent) at 1.

[15] Id. Slip Op. (Dissent) at 10.

[16] Id. Slip Op. (Dissent) at 2-3.

The Networks’ claim is governed by a simple but profoundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act. See 3 W. Patry, Copyright §9:5.50 (2013). This requirement is firmly grounded in the Act’s text, which defines “perform” in active, affirmative terms: (…).

[17] American Broadcasting Cos., Inc., et al v. Aereo, Inc., 573 U.S. ______ (2014). No. 13–461, Slip Op. (Dissent) at 3, argued April 22, 2014—Decided June 25, 2014, Supreme Court of the United States (U.S.S.C.). Online: >http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf<

Every Court of Appeals to have considered an automated-service provider’s direct liability for copyright infringement has adopted that rule. See Fox Broadcasting Co. v. Dish Network LLC, 747 F. 3d 1060, 1066–1068 (CA9 2014); Cartoon Network, supra, at 130–131 (CA2 2008); CoStar Group, Inc. v. LoopNet, Inc., 373 F. 3d 544, 549–550 (CA4 2004).1 Although we have not opined on the issue, our cases are fully consistent with a volitional-conduct requirement.

[18] Id. Slip Op. (Dissent) at 5, 6.

[19] If, due to this very narrow ruling, additional issues are raised by the Aereo case, the parties may well return to the United States Supreme Court for a second bite at this apple. The Court may well have inadvertently created for itself, a serial visitor.

[20] Please stay tuned!

  1. WHAT IS IT?

Aereo, the service, allows people to watch re-transmitted television programming (live, or recorded by the customer as individualized copies) over the internet on compatible devices, and at their own time-shifted leisure.[1] This is accomplished through technical wizardry that allocates miniature antennae to each subscriber to link with Aereo’s cloud-based data servers, thereby serving every customer separately, but at once.[2]

 

  1. WHY IS THERE A PROBLEM?

The problem starts with the International Law of Copyright, which grants a bundle of exclusive rights[3] to the creators of certain artistic and literary works.[4] These include the rights to reproduction and public performance, and that is why creators of content get royalties, and broadcasters are paid for their signals (out of which they, in turn, also pay royalties). Most simply put, Aereo contends that:

(i) the recording of this formerly licensed content (an exception to Copyright when done for private usage) is the function that it facilitates; and

(ii) the later viewing of that content as recorded or time-shifted, as well as the original viewing of that content if not recorded or time-shifted, is (due to the antenna usage and individualized copies) a private performance for each customer so viewing it, being another exception to Copyright. As a result, they should not need to pay anyone for anything, and neither should their customers.

The broadcast networks as producers, creators, licensors and purveyors of copyrighted content disagreed (and still do) most vehemently with this, and characterized the Aereo business model in much of their verbal arguments and submissions to the courts at various levels, as nothing more than theft.

 

  1. WHERE DID THIS ALL GO?

So far, the broadcasters tried to stop Aereo before it launched in 2012, suing for an injunction in Federal District Court for the Southern District of New York (as copyright is a matter of federal law). The Judge denied their injunction request.

“Because the Court concludes that it cannot accept Plaintiffs’ novel attempt to distinguish Cablevision, Plaintiffs have not shown a likelihood of success on the merits. And although they have demonstrated that they face irreparable harm, they have not demonstrated that the balance of hardships decidedly tips in their favor. As such, the Court DENIES Plaintiffs motion for a preliminary injunction.”[5]

Then, the broadcasters appealed to a panel of three judges at the United States Court of Appeals for the Second Circuit (2d. Cir.). Two of those judges affirmed the ruling below in denying the injunction, but one of them dissented and took the side of the broadcasters.[6] In their opinion that favoured Aereo, the 2nd Circuit majority cited to their decision in Cartoon Network,[7] an earlier case, and focused-in on the “transmission” element of exclusive public performance rights.[8] As the Second Circuit majority wrote in finding there was no infringing public performance, there had been no intervening United States Supreme Court (U.S.S.C.) decision since Cablevision that would warrant ruling against an established and much relied-upon (especially by the Cloud industry) Appellate decision, and the Appellants could not provide sufficient reasons to depart from that Cablevision ruling in the Aereo case.[9]

 

CARTOON NETWORK/CABLEVISION

In Cartoon Network, Cablevision Systems Corporation (CSC) proposed to start providing its customers with a remote storage, digital video recorder (RS-DVR) device, to which the plaintiffs took deep offence. As the plaintiffs complained:

On information and belief, Cablevision will provide the Service as follows: Cablevision will give Service subscribers the opportunity to request that Cablevision make a copy of programming. The request can be made either as the programming is airing or in advance of the airing time. Upon receiving such a request, Cablevision will make an unauthorized digital copy of that programming on one of its own servers, at the time the programming airs. (…) Cablevision will store the unauthorized copy on its servers for an indefinite period of time. On demand from a Service subscriber, Cablevision will transmit this stored programming to the subscriber in the same way as it transmits its On Demand service.”[10]

At this first instance, the federal District Court in the Southern District of New York agreed that the proposed service would cause a direct infringement of plaintiffs’ exclusive reproduction rights (17 U.S.C. §106(1), and the plaintiffs’ exclusive public performance rights (17 U.S.C. §106(4)).[11] Hence, the Federal District Court for the Southern District of New York (S.D.N.Y.) entered summary judgment for the plaintiffs and granted an injunction barring any unlicensed copying or public performance of plaintiffs’ copyrighted materials, and essentially, banning the service.[12] CSC promptly appealed, and the United States Court of Appeals for the Second Circuit (2d Cir.) reversed and remanded, vacating the injunction with a summary judgment, finding that the S.D.N.Y. had erred in reaching that conclusion.[13] However, the window for potential liability was not totally closed, as the Second Circuit wrote:

This holding, we must emphasize, does not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network, or by giving their subscribers the capacity to make their own individual copies. We do not address whether such a network operator would be able to escape any other form of copyright liability, such as liability for unauthorized reproductions or liability for contributory infringement.”[14] (emphasis added).

The plaintiffs appealed to the United States Supreme Court (U.S.S.C.), but the Court denied Certiorari (which meant that it declined to hear the case). The fact that the U.S.S.C. has now decided to hear the Aereo case, which must be decided on a similar matter, shows that something may be changing in its thinking on Copyright, and/or the public interest in light of fast-moving technological developments.

 

  1. WHEN WILL WE KNOW?

The United States Supreme Court is expected to render a decision in or about June, 2014. After that, there is no higher court and nothing can be changed other than by an amendment of law by Congress. It is possible that Congress might act to change something before the Court rules. However, due to high demonstrated partisanship and a desire amongst the parties to see how the Supreme Court Judges think on the issues as they analyze the cases and facts, this is unlikely to happen within the next few months.

 

  1. WHO (as in which side) “SHOULD” WIN?

This is the kicker, because there are other prongs to consider if one performs a fuller horizon scan and “TOP” Analysis,[15] to look at the bigger picture. Let me focus on just three of these other prongs:

First, there is the public interest; second, there is technical pushback; and third, there is related law. I will address these in reverse order.

 

RELATED LAW (net neutrality) –

On this third prong, the United States Federal Communications Commission (FCC) has just announced a pending potential end to the doctrine of “Net Neutrality”. This doctrine, encompassed by 3 principles,[16] is the FCC commitment to “ensuring that every American has access to open and robust high-speed Internet service- or broadband”.[17] Ushering-in a new paradigm, the FCC has recently announced that it will circulate proposed rules to modify those rules. Before anyone had seen the proposed legislation, speculation began to spread that a two-tiered internet would result – one for the haves, and one for the have-nots. The FCC moved swiftly to correct the record, and FCC Chairman Tom Wheeler, stated inter alia, that: “[t]he allegation that it will result in anti-competitive price increases for consumers is also unfounded. That is exactly what the “commercially unreasonable” test will protect against: harm to competition and consumers stemming from abusive market activity.”[18]

If these proposed rules come into force, then marketing of faster internet services and service speeds for a fee, may become the order of the day. Aereo service (if sustainable under the law) could be marketed as a faster or slower alternative, as applicable, or it could still be slowed down and throttled into obscurity in its journey to those consumer Form Factors (phones, tablets, and computers) by ISPs who are weary of running afoul of that still potentially available “contributory infringement” liability left open by the Cablevision court.

 

THE GLOBAL STORM (more related law) –

The above are just some of the many possible results that may still come on the domestic scene. Then, of course, there is also the international dimension. Brazil has recently passed, in the lower house, an internet law the “Marco Civil” championing equal access (net neutrality), multiparty governance (no more U.S. hegemony), and certain other privacy protections for Brazilian citizens.[19] Consider also, that:

(i) On September 12, 2011, China, Russia, Tajikistan, and Uzbekistan proposed an Internet Code of Conduct to the United Nations;[20]

(ii) On February 12, 2014, the European Commission put forth a proposal for democratizing the internet and ostensibly reducing the dominance of certain parties and practices, stating that: “[i]n the wake of large-scale Internet surveillance and reduced trust in the internet, the European Commission today proposes a key reform to the way the Internet is managed and run. The proposal calls for more transparent, accountable and inclusive governance”;[21]

(iii) The United States National Telecommunications and Information Administration (NTIA), a federal government entity, announced on March 14, 2014, that it will withdraw from its leadership role in the Internet Corporation for Assigned Names and Numbers (ICANN), as originally envisaged, but now also (and with certain caveats) “[t]o support and enhance the multistakeholder model of Internet policymaking and governance;”[22] and

(iv) Going back to Brazil, the nation also recently hosted Net Mundial, an April 23-24, 2014 conference on the preferred future of the internet.[23]

Many of us have read or seen various “works of fiction” depicting alternative realities in a future where different jurisdictions and groups of jurisdictions have wildly different laws in the technology field, but all still manage to somehow, “almost” get along with the words “Free”, or “Neutral” in their names. Electronic conduct that is completely illegal in one, may be more permissible or even empowered by law in the other – consider mass surveillance as against mass and effective encryption; copyright infringement as against fair usage; differential download speeds (for a fee) as against one speed for all; and so forth. Any platform provider doing business in multiple such “Zones” may be moved to have, and provide, and support multiple devices for multiple such locations; or may in the alternative, be encouraged or compelled to have a single device with different functionalities either enabled or disabled by insertion of a chip-type device that is specific to each Zone, and the laws and mores of each Zone.

The seed for this is already here in phone “sim” cards. However and at the same time, we have seen how one person’s internet programming and/or oversight mistake can apparently endanger the entire system;[24] how some cybersecurity vulnerabilities may allegedly come pre-installed;[25] and how export restrictions and sanctions can starve persons and places of critical technologies.[26] As a result, once you take technology made by someone else, somewhere else, subject to the will of some other government(s) … you “are” in their debt for updates and support, and you “may also be” in their pocket!

Whatever the case and whichever way you look at it, something is building-up and the world is going somewhere that looks like that general “work of fiction” direction.

Will this be:

DOOR NUMBER ONE – A single internet with a unified governance system;

DOOR NUMBER TWO – Multiple internets with disparate rules and eBusinesses juggling to retain compliance due to their many governments and government groups “seeing RED” in arguing for:

(i) “R”egulatory sovereignty and “R”eal sovereignty (rules and regulations, and the right to react and redact in the face of social media free? speech created by foreign governments,[27] economically enabled from other jurisdictions, or owned by opaque/operated by irresponsible foreign entities,[28] as well as the right and capability to detect, detour-about, defuse, debunk and delete information warfare, manipulated media, and ruinous requisitioned reporting – a.k.a. censorship);

(ii) “E”lectronic sovereignty (payment systems, virtual currencies, financial transparency, and autonomy to engage in cybercrime countermeasures, and to develop and deploy (offensive), and detect and defend against (defensive) electronic warfare operations in, from, or to any one or any place in any way, and at any time); and

(iii) “D”ata sovereignty (data and personal privacy and the way and means in which it may be curtailed or canceled outright, data residence including the extraterritorial treatment of the data of its own Citizens, and assorted solo and coalition national security operations in the data domain); or –

DOOR NUMBER THREE …….??

 

TECHNICAL PUSHBACK (digi-tagging)

On this second prong, content owners are already quite adept at Region Coding[29] on DVDs, to ensure that the content on them can only be accessed in those regions for which they have been specifically pre-programmed to work. It may now be technically possible to have:

(i) sub-codes for timed release (to prevent unfavourable time-shifting);

(ii) sub-codes for specific ISPs and phone telecommunications entities (to prevent cross-portability of content – although this may well defeat the purpose of “broadcast” by turning it into “limi-cast”, or run so afoul of some analogy on free number portability between carriers, or other laws and regulations, that it is unfeasible); or

(iii) some other digi-tag countermeasure.

 

PUBLIC INTEREST (sometimes subjective) –

On this first prong, we have a wildcard that nobody can predict. Is it more in the public interest to have content widely available, than it is to uphold a rigid reading of the law? Is it better to read the law loosely and protect fledgling domestic businesses like Aereo as well as U.S. global Cloud industry giants (based in the United States but under foreign and domestic suspicion after the Snowden revelations[30]), while allowing a perceived weakening of copyright protections? Will any of these three prongs be considered in a determination of whether the proposed merger of Comcast and Time Warner[31] will be in the public interest, or whether that proposed merger has any bearing on the Aereo case? Who can say?

I think that the public interest “should” win, but only the Court can decide what that public interest is, and on which side of the litigation it will finally fall. All of us, including the litigants, can only wait and see what and where that will be ………. and then Congress as a group can say yea or nay, or just let it be.

*********************************************************************

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

******************************************************************

[1] See Aereo. What is Aereo?   Visited April 24, 2014. Online: >http://support.aereo.com/customer/portal/articles/359733-what-is-aereo< For details on further proceedings in this case, see also Ekundayo George.  WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict.  Posted on ogalaws.wordpress.com, June 26, 2014.
Online: >https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[2] See Aereo. About. Visited April 24, 2014. Online: >https://aereo.com/about<

[3] Cornell Legal Information Institute (LII). U.S. Code: Title 17 – Copyrights. Online: >http://www.law.cornell.edu/uscode/text/17<

17 U.S.C. §106 – Exclusive rights in copyrighted works.

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

Government of Canada, Justice Laws Website. Copyright Act. Online: >http://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html<

Copyright Act (R.S.C., 1985, c. C-42) – Canada.

PART I COPYRIGHT AND MORAL RIGHTS IN WORKS

Copyright in works.

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,

(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,

(h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

and to authorize any such acts.

[4] Copyright law is codified in the United States at 17 U.S.C. § 101 et seq. With a few distinctions, such as the definitions of works protected in different countries (e.g. “original works of authorship fixed in any tangible medium of expression” in the United States and “literary, dramatic, musical, and artistic works (…) computer programs” in Canada), the law is quite uniformly applied through a number of treaties and conventions beyond the limited scope of this blog post. See also note 3, supra.

17 U.S.C. §102 – Subject matter of copyright: In general.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

[5] See judgment of July 11, 2012, issued by the Honourable Alison J. Nathan, U.S.D.J., in WNET Thirteen et al. v. Aereo Inc.; American Broadcasting Companies, Inc., et al v. Aereo, Inc.,874 F. Supp. 2d 373 (S.D.N.Y. Jul. 11, 2012), at page 52. Online: >https://www.eff.org/files/filenode/Denial%20of%20PI.pdf< In saying and citing “Cablevision”, the judge was referring to the 2nd Circuit’s 2008 “Cartoon Network” decision, infra at note 7 of this blog post.

[6] See WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc., 12-2786-cv; 12-2807-cv (2d Cir. 2012), decided April 1, 2013. Dissenting opinion of The Honorable Denny Chin, Circuit Judge. Online:  >http://docs.justia.com/cases/federal/appellate-courts/ca2/12-2807/202356377/0.pdf< For substantially the same reasons, Judge Chin was also joined by Judge Richard C. Wesley, Circuit Judge, in dissenting to the denial of an en banc hearing on the appeal (by the entire United States Court of Appeals for the Second Circuit). Online: > http://www.ca2.uscourts.gov/decisions/isysquery/2dcd67b0-2b31-42d4-a190-1f09b735f5d2/2/doc/12-2786_12-2807_enbanc_complete.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2dcd67b0-2b31-42d4-a190-1f09b735f5d2/2/hilite/<

[7] The Cartoon Network LP, LLLP v. CSC Holdings, Inc., 07-1480-cv(L) & 07-1511-cv(CON), 536 F. 3d 121 (2d Cir. 2008), decided August 4, 2008. Online: >https://www.eff.org/files/filenode/studios_v_cablevision/cablevision-decision.pdf<

[8] See Cornell Legal Information Institute (LII), supra note 3.

17 U.S.C. §101 – Definitions.

To perform or display a work “publicly” means-

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

See also supra note 1 and accompanying text. Aereo’s individual antennae (apparently) make the performances and re-performances private, thus technologically avoiding a “public” element needed for copyright infringement.

[9] WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc., 12-2786-cv; 12-2807-cv (2d Cir. 2012), decided April 1, 2013, at note 19 of the ruling and accompanying text. Online: >https://www.eff.org/files/filenode/aereo_opinion.pdf< Cartoon Network and Cablevision are used interchangeably in this blog post.

[10] See ¶20 of original Complaint of The Cartoon Network LP. LLLP and Cable News Network LP, LLLP, filed May 26, 2006, in the United States District Court for the Southern District of New York, as 06-cv-4092. Online: >http://tipp.ucla.edu/documents/case50/Cartoon_Network%27s_Complaint.pdf

[11] See judgment of April 4, 2007, issued by The Honorable Denny Chin, U.S.D.J., in The Cartoon Network LP. LLLP et al v. CSC Holdings, Inc. et al, 06-cv-4092 and 06-cv-3990 (S.D.N.Y. Apr. 4, 2007), at paragraphs 4-5. Online: >http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2006cv04092/285045/62<

[12] Id. at paragraph 6. The full reasoning and opinion behind that S.D.N.Y. judgement, can also be found here: Online: >http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2006cv04092/285045/61<

[13] Supra note 6, Cartoon Network, at 44.

[14] Supra note 6, Cartoon Network, at 43-44.

[15] See Ekundayo George. “TOP” analysis: a timely successor to SWOT analysis? Published on ogalaws.wordpress.com, May 6, 2012. Online: >https://ogalaws.wordpress.com/2012/05/06/top-analysis-a-timely-successor-to-swot-analysis/<

[16] See United States Federal Communications Commission (FCC). Guide: The Open Internet. Online: >http://www.fcc.gov/guides/open-internet<

The FCC and Open Internet Rules.

“There are three basic Open Internet rules:

1. Transparency: Broadband providers must disclose information regarding their network management practices, performance, and the commercial terms of their broadband services;

2. No Blocking: Fixed broadband providers (such as DSL, cable modem or fixed wireless providers) may not block lawful content, applications, services or non-harmful devices. Mobile broadband providers may not block lawful websites, or applications that compete with their voice or video telephony services;

3. No Unreasonable Discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. The no blocking and no unreasonable discrimination rules are subject to limited exceptions for “reasonable network management.””

[17] Id.

[18] Commissioner Tom Wheeler, Chairman of the Federal Communications Commission. Setting the Record Straight on the FCC’s Open Internet Rules. Published on fcc.gov, April 24, 2014. Online: >http://www.fcc.gov/blog/setting-record-straight-fcc-s-open-internet-rules<

[19] See Mike Palmedo. English Translation of the New Version of Brazil’s Marco Civil (courtesy of Carolina Rossini).  Posted on infojustice.org, November 18, 2013. Online: >http://infojustice.org/archives/31272< Please note that this early version shown is not exactly the same as the actual version recently passed.

[20] United Nations Organization (UN). Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General.  Sixty-sixth session Item 93 of the provisional agenda* Developments in the field of information and telecommunications in the context of international security. A/66/359.  Dated September 14, 2011. Online: >http://content.netmundial.br/files/67.pdf<

[21] European Commission. Commission to pursue role as honest broker in future global negotiations on Internet Governance. Press Release published on europa.eu, February 14, 2014. Online: >http://europa.eu/rapid/press-release_IP-14-142_en.htm<

[22] National Telecommunications and Information Administration (NTIA). NTIA Announces Intent to Transition Key Internet Domain Name Functions. Press Release posted on ntia.org, March 14, 2014. Online: >http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions<

[23] RT. Brazil passes ‘internet constitution’ ahead of global conference on web future. Posted on rt.com, April 23, 2014.   Online: >http://rt.com/news/154168-brazil-internet-freedom-law-conference/<  See also >http://netmundial.org/<

[24] Robert Merkel. How the Heartbleed bug reveals a flaw in online security. Posted on theconversation.com, April 11, 2014. Online: >http://theconversation.com/how-the-heartbleed-bug-reveals-a-flaw-in-online-security-25536<

[25] Danielle Walker. Pre-installed security software leaves computers vulnerable to remote hijack, experts reveal.

Posted on scmagazine.com, February 12, 2014. Online: >http://www.scmagazine.com/pre-installed-security-software-leaves-computers-vulnerable-to-remote-hijack-experts-reveal/article/333808/< See also Lily Hay Newman. One More Reason to Stop Using Internet Explorer. Posted on slate.com, April 28, 2014. Online: >http://www.slate.com/blogs/future_tense/2014/04/28/internet_explorer_has_a_vulnerability_that_microsoft_admits_is_being_exploited.html<

[26] Staff Report. Iran sanctions main hurdle in gas pipeline. Published on dailytimes.com.pk, April 28, 2014. Online: >http://www.dailytimes.com.pk/business/11-Apr-2014/iran-sanctions-main-hurdle-in-gas-pipeline<  But see Srinivas Laxman. India overcame US sanctions to develop cryogenic engine. Posted on indiatimes.com, January 6, 2014. Online: >http://timesofindia.indiatimes.com/india/India-overcame-US-sanctions-to-develop-cryogenic-engine/articleshow/28449360.cms<

[27] Desmond Butler, Jack Gillum, and Alberto Arce. US secretly created ‘Cuban Twitter’ to stir unrest. Posted on ap.org, April 4, 2014. Online: >http://bigstory.ap.org/article/us-secretly-created-cuban-twitter-stir-unrest<

[28] Sometimes, the dealings of odd entities, nondescript government agencies, and extremely wealthy families and individuals, can be found to have occurred in well-known, but un-named and highly opaque (if not regulatorily impenetrable) “tax-advantaged” jurisdictions.

[29] Sony Corporation. What are DVD region codes? Available on us.en.kb.sony.com, last Updated: 01/07/2014. Online: >https://us.en.kb.sony.com/app/answers/detail/a_id/38063/~/what-are-the-dvd-region-codes%3F<

[30] Stephen Shankland. Snowden revelations spook Hightail’s cloud-computing customers. Published on cnet.com, December 11, 2013. Online: >http://www.cnet.com/news/snowden-revelations-spook-hightails-cloud-computing-customers/<

[31] Comcast. Time Warner Cable to Merge with Comcast Corporation to Create a World-Class Technology and Media Company. Press Release posted on comcast.com, February 13, 2014. Online: >http://corporate.comcast.com/news-information/news-feed/time-warner-cable-to-merge-with-comcast-corporation<

According to the United States’ National Labor Relations Board (NLRB) – it depends. On April 1, 2014, the NLRB ruled on the appeal of (and made even murkier),[1] an initial decision before a single Administrative Law Judge (ALJ) of February 17, 2012,[2] in which the answer to that question was first and thoroughly muddied.

 

INSTRUCTIONS: Hills and Dales General Hospital of Cass City, Michigan (hereinafter the hospital), had as do most employers, an interest in maintaining the discipline and well-being of its employees; in protecting and improving the goodwill and community reputation of its business; the continuation of its business operations as a going concern; and its full and good faith compliance with applicable law. Hence, it structured and issued a `Good Conduct` policy for its staff that provided, in relevant part:[3]

With regard to Teamwork –

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

With regard to Attitude –

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

Oddly enough, it was to remedy what the hospital itself, had described as a poor work environment riddled with back-biting and back stabbing as far back as 2005, that the company instituted its new Values and Standards of Behaviour Policy (hereinafter the Policy”).[4] The policy, once implemented after several rounds of employee reviews and edits, was: (i) voluntarily signed by some of the hospital`s employees then framed in public posters within the workplace; (ii) included in the hospital`s human resources policy manual, with employee acknowledgements of the receipt of same signed, and placed in their personnel files; and (iii) used as a basis for employee discipline by the hospital on at least one occasion.[5]

 

NUANCES: In failing to give specific definitions or examples of what constituted negative, or positive and professionalconduct,[6] the hospital was charged with a violation of Section 7 of the National Labor Relations Act (NLRA) for knowingly maintaining such a vague and overbroad Policy of employee conduct.

 

RIGHTS OF EMPLOYEES –

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].[7] (emphasis added).

The specific unfair labor practice alleged as in, and impacting interstate commerce, was described under Section 8(a)(1):

 

UNFAIR LABOR PRACTICES –

Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer–

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title];

 

FINDINGS BELOW: ALJ Carter upheld the bulk of the allegations that the statements or conduct of the hospital did indeed have a reasonable tendency to interfere with, restrain or coerce union or protected activities as interpreted by a reasonable employee,[8] in light of relevant tests for the application of Section 7 of the NLRA.[9] As the ALJ ruled: paragraph 11 implicitly includes protected activities because it prohibits negative comments about managers,[10] paragraph 16’s call for employees to represent the hospital in a positive and professional manner is a lawful call for employees to maintain a high standard of professionalism with potential (or actual) customers at every opportunity,[11] and the Hospital’s (paragraph 21) prohibition of ’negativity’ is so patently ambiguous, imprecise and overbroad that a reasonable employee would construe it as prohibiting protected discussions about working conditions and the terms and conditions of employment.[12]

Hence, ALJ Carter decided and Ordered that the hospital act within 14 days to revise or rescind paragraphs 11 and 21 of its Values and Standards of Behaviour Policy (but he dismissed the allegation with regard to paragraph 16 of that same Policy); with a further Order for workplace posting and electronic delivery to hospital employees, of an Appendix undertaking that was structured and worded on the substance of his decision and Order.[13]

That first decision by ALJ Carter was then appealed to the NLRB, with the parties filing exceptions, cross-exceptions and supporting briefs, answering briefs, and reply briefs, and the matter was subsequently heard and recently decided by a panel of three Members of the same National Labor Relations Board.

 

RULING ON APPEAL: The NLRB panel adopted ALJ Carter`s findings and decision with regard to paragraphs 11 and 21 of the Policy, but reversed them with regard to paragraph 16 in a 2:1 ruling – concluding that the language therein did indeed constitute an additional violation of the NLRA, after all.[14]

The requirement that employees “represent [the Respondent] in the community in a positive and professional manner” is just as overbroad and ambiguous as the proscription of “negative comments” and “negativity” in paragraphs 11 and 21. (…) This would, for example, discourage employees from engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment—activity that may not be “positive” towards the Respondent but is clearly protected by Section 7. [15]

Accordingly, the panel issued a revised decision and Order of April 1, 2014, that included an additional requirement (again to be acted upon within 14 days thence), that the hospital also revise or rescind paragraph 16 of its Values and Standards of Behaviour Policy, along with paragraphs 11 and 21 as earlier ordered by ALJ Carter in his 2012 decision and Order.[16]

 

AFTER-EFFECTS: This decision on appeal, shows that any attempt by employers to impose (or suggest or recommend) a certain standard of conduct should be very narrowly-tailored, otherwise it may well run afoul of the National Labor Relations Act, the NLRB policy, and applicable caselaw. Although it would be highly advisable to delineate examples of what would (or might) be considered impermissible conduct under the employer standard, the potential for a catch 22 remains – (a) over-inclusiveness may lead to serious enforceability issues and credible challenges of overbreadth; whilst (b) under-inclusion due to at times glaring omissions, may leave some otherwise objectionable conduct non-sanctionable, for claimed lack of notice that it was a “no-go area” on the part of an aggrieved current or former employee.

In short, employers should tread very carefully, seek legal counsel, and not necessarily assume, as did the hospital, apparently, that a standard of conduct template already in use elsewhere with no apparent issues, is a good one to follow; or that employee input and consultation in the creation of the standard – even if that participation is significant and sustained in the process, will somehow prevent or preclude the standard as finally made, from clearly or potentially infringing upon or prohibiting outright, some protected activity under the NLRA, or being otherwise objectionable in the eyes of an ALJ on the decision below (as with paragraphs 11 and 21 of the Policy), of an NLRB panel on appeal (as with paragraph 16 of the Policy), or perhaps both.

 

*********************************************************************

Author:

Ekundayo George is a sociologist and a lawyer. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing).  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other Services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

[1] Hills and Dales General Hospital and Danielle Corlis, Case 07-CA-053556 (Apr. 1, 2014), 360 NLRB No. 70 (2014), before Mark Gaston Pearce, Chairman, and members Harry I. Johnson, III, and Nancy Schiffer.

[2] Hills and Dales General Hospital and Danielle Corlis, Case 07-CA-053556 (Feb. 17, 2012), before Geofffey Carter, ALJ.

[3] Id. at 2-3.

[4] Id. at 2. “As a result, employee satisfaction was low, employees were looking for other job opportunities (outside of the Hospital), and patients were seeking health care in other hospitals”.

[5] Id. at 3.

[6] Id.

[7] National Labor Relations Board. The National Labor Relations Act of 1935,29 U.S.C. §§ 151-169 [Title 29, Chapter 7, Subchapter II, United States Code]. Online: http://www.nlrb.gov/resources/national-labor-relations-act

[8] Hills and Dales General Hospital and Danielle Corlis, Case 07-CA-053556 (Feb. 17, 2012), before Geofffey Carter, ALJ, at 6. “In the Acting General Counsel’s view, those work rules are overbroad because a reasonable employee would conclude that the rules prohibit protected activity such as employee discussions about the terms and conditions of their employment”.

[9] Id. at 5. “If the rule explicitly restricts Section 7 activity, it is unlawful. If the rule does not explicitly restrict Section 7 activity, it is nonetheless unlawful if (1) employees would reasonably construe the language of the rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. In applying these principles, the Board refrains from reading particular phrases in isolation, and it does not presume improper interference with employee rights”. NLS Group, 352 NLRB 744, 745 (2008) (citing Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004)), adopted in 355 NLRB No. 169 (2010), enfd. 645 F.3d 475 (1st Cir. 2011).

[10] Id. at 6.

[11] Id. at 7-8.

[12] Id. at 9, emphasis added.

[13] Id. at 10.

[14] Hills and Dales General Hospital and Danielle Corlis, Case 07-CA-053556 (Apr. 1, 2014), 360 NLRB No. 70, slip op. at 1 (2014), before Mark Gaston Pearce, Chairman, and members Harry I. Johnson, III, and Nancy Schiffer.

[15] Id. slip op at 2.

[16] Id. slip op at 3; see also footnote 6 of this decision and Order.

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