June 27th, 2016

Courtrooms are peculiar places, filled with argumentation, deliberation, and full theatre throughout. 

Our big hearing on Feb 23 was at 180 Queen Street, in Toronto, and it was an early morning show.

On first argument was Kevin Sartorio, lawyer for the Canadian Standards Association (CSA).  This is usual, the party that brought the claim is invited to argue their position first. 

So Sartorio went first, but we got the impression that he rarely gets to court.  He was very nervous.

The courtroom is arranged with plaintiff (CSA) at a small table on the left side of the room and the defendant’s table on the right side.  Legal counsel for both parties sit at these front tables with the actual parties themselves, such as myself, sitting immediately behind their respective tables.  A common table is in the middle between the plaintiff and the defendant.  Upon this common table is a speaking lectern.  There was a small audience behind the tables, and amid this sat Sarah Eisen, the proxy for CSA’s General Counsel, R.J. Falconi.

Sartorio’s presentation was impressively unimpressive.  It was a rather good delivery of a rather thin argument, but it wasn’t nearly to the standard one would expect of a top tier lawyer from a top tier firm charging top tier prices. 

His gown was heavily wrinkled, noticeable from some distance away.  It resembled those plastic rain ponchos, tightly folded into square packing and stored for seemingly ages and, when finally unfurled, the little rectangular creases are plainly visible in its use.  It seems that Sartorio doesn’t get to court much.  His client prefers to bully their betters into submission without ever nearing a courtroom.

The reality of having a difficult client is that no matter how strenuously their lawyer may counsel them against a course of action, if the client should stubbornly pursue it anyway its the lawyer that will get the blame for the legal corners these clients walk themselves into.  Sartorio likely knew that if he blew this hearing he’d be blamed first by CSA and then by his own firm for risking the business of a well-heeled (taxpayer funded) client.  Hence the nerves.  And one can’t fault him for being nervous, I’ll be presenting soon enough and I’ll be nervous.  The difference is that your correspondent has never made a court presentation before, whereas Mr. Sartorio is apparently an expensive expert at it.  Then the expert got thirsty. 

Just to the right of the lecturn, on the common table, was a plastic cup of drinking water.  Sartorio reached for the cup.  Your correspondent watched him closely.  His hand was actually shaking. 

The CSA argument to court was almost entirely confined to the text of the Copyright Act.  There really wasn’t any consideration of applicability to, say, the public nature of law.  Sartorio tried to offset this weakness by repeatedly arguing that the Act is an exhaustive defence, that other considerations, or ramifications, weren’t relevant to the issue.  But the issue was whether public law exists in Canada and that, surely, is a powerful consideration indeed. 

Sartorio again reached for his plastic cup.  His hand shaking, he drained it, then paused his presentation to walk over to the plaintiff’s table, reached for a decanter and refilled his cup.  We were less than a half hour into the hearing. 

Then he made some unforced errors.  We can’t commentate the full hearing for legal reasons, but we can offer glimpses of proceedings, somewhat entertaining in nature.  Sartorio accidentally admitted the significance of the RestoreCSA website and then complimented it.  He called our website “exhaustive,” then said “it’s actually amazing.”  Thank you Kevin, we see you here regularly, you’re an avid reader.  We surely appreciate the affirming words of CSA about this website, as delivered by their legal representative.

Sartorio again reached for his plastic cup, again his hand visibly trembling.  Moments later he reached again, drained his plastic cup, and paused his presentation to walk to the decanter and refill his cup.  Sartorio was indeed nervous.  He had dry mouth.

What was it that made Sartorio so nervous?  Was it a precarious position with his client and his firm, or was it something else, something that he’d noticed late in preparation for hearing, something that changed everything?

In the discovery phase of trial preparation it was revealed that Peter Knight, founder of P.S. Knight Co., had been heavily active in developing the modern Electrical Code, this Code being the subject of CSA’s litigation against P.S. Knight.  For fifty years Peter Knight had been contributing to the Code, and P.S. Knight Co. owns the copyright assignments for Peter Knight’s contributions.  Yet the core of CSA’s case is that they own the Code themselves because they own copyright assignments covering approximately five percent of Code text.  So Sartorio knew that if the court ruled in favour of private ownership of the law based upon copyright assignment, then P.S. Knight would win control of its own portion of the Code.  You see, Sartorio had figured out that no matter which way the ruling went, P.S. Knight would win.

Granted, he saw that the one win is better than the other, that our first argument was a lot less messy than our fallback.  But the knowledge that he was arguing in court for a ruling that would favour his opponent could hardly be comforting.  The knowledge that he had walked his client into that corner was even worse.

As regular readers know, in early March the court did rule in favour of private ownership of legislation.  While we argued strongly against this result, we are obligated to respect the rulings of the court and to comply with them.  In this, we sent letters to the various provincial, territorial, and Federal governments in Canada advising as follows;

“In accordance with the above noted Court Ruling, and through lawful possession of copyright assignments covering Federal, provincial and territorial electrical laws, P.S. Knight Co. Ltd. is the legal owner of significant portions of electrical law in Canada.”

Then the warning;

“We note that [your government] has passed the CEC into law and that [you] are enforcing this law.  In the context of the above noted Ruling, you are currently using, quoting from, and enforcing our laws without our authorization.  We will permit you to continue to use, quote from, and enforce our laws without charge, penalty, or restriction through the end of March, 2016.”

We invited government representatives to enter negotiations for long term royalty and use contracts for “our” laws.

Subsequently, in private discussion with governments, we pointed out how absurd and how entirely unnecessary all of this was.  We diplomatically noted that each of these governments were advised four years ago, and many times subsequently, of the potential fallout from this litigation and yet none of them took any action.  The Federal Government in particular, to whom CSA reports as a government Agency, actually declared in Parliament that legislation in Canada can be privately owned by whomever lobbied for it.  Does that sound daft?  That line in Parliament, stated by then Minister of Industry James Moore, featured prominently in the Judge’s Reasons for Decision in his Ruling.  Governments had every chance to prevent this outcome and they refused to do so, and we fought hard against it and we lost, so unless we win on appeal, we’re all under private law together, all in consequence affronted and taxed pointlessly to the heavens.

This month marks sixty days since the issuing of our first invoices to governments for their use of “our” laws, the payments on these invoices are now due.  We have received letters of response from several governments, capping conversations with some of them.  Mostly, these governments have advised that they do not recognize the Federal Court Ruling and will not comply with it.  This is what’s called asymmetrical justice, that the law is applied to only one party to the convenience of the government.  And it won’t stand.

Right now we’re all stuck with the absurdity of private law.  RestoreCSA is working hard to demonstrate that absurdity to governments and, hopefully, and in time, we can replace these absurdities with respectable sensibilities, and that for all our benefit.