Simply because content is online does not mean it is necessarily free to use or “in the public domain”. In a current action finding its way through the British Columbia Supreme Court, the Plaintiff—an educational software developer—is alleging, amongst other things, that the publishing of several unlisted YouTube links on Twitter amounts to copyright infringement. After commencing the action, the Plaintiff obtained an interim injunction against the Defendant prohibiting the downloading or sharing of information from the Plaintiff’s software platform. In response, the Defendant brought an application under the British Columbia Protection of Public Participation Act, S.B.C. 2019, c 3 (the “PPPA”) British Columbia’s anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation. An anti-SLAPP application acts as a specialized form of summary judgment, where the applicant seeks an early dismissal of an action by showing a claim has no substantial merit and that the public interest in the expression outweighs the respondent’s alleged harm from the expression. In Proctorio, Incorporated v. Linkletter, 2022 BCSC 400 (”Proctorio”), the Court dismissed the Defendant’s application in part, finding that the Plaintiff’s claim for copyright infringement should be allowed to proceed. Notably, the decision is not a final adjudication on the merits, but an assessment of the likelihood of a successful claim.
In the underlying action, the Plaintiff claims the Defendant’s actions amount to infringement of copyright, circumvention of technological protection measures, and breach of confidence. The Defendant alleged that the Plaintiff was not really advancing a bona fide claim, but rather that the action amounted to “strategic litigation against public participation” or a “SLAPP” suit, the real purpose of which was to stifle criticism of the Plaintiff and its software. On that basis, the Defendant sought to have the action dismissed under s. 4 of the PPPA.
The test under s. 4 of the PPPA requires an applicant to first demonstrate on a balance of probabilities that the action arose from an expression made by them that relates to a matter of public interest. If the applicant satisfies the first part of the test, the court must dismiss the action unless the respondent can satisfy the court that there are grounds to believe that (a) the proceeding has substantial merit and (b) the applicant has no valid defence in the proceeding. The respondent must also establish that the harm it is likely to have suffered, or will suffer in the future, as a result of the applicant’s expression, is serious enough to outweigh the public interest in protecting the expression.
On the first branch of test, the Court was satisfied that the Defendant’s tweets could be fairly characterized as expression on a matter of public interest. In determining the merits of the Plaintiff’s allegation of copyright infringement, the Defendant alleged that sharing a link to content published elsewhere on the Internet cannot be an infringement of copyright because a link merely communicates that something exists and does not actually convey the copyrighted content. The Court disagreed, finding that the wrongdoing lies in the very act of sharing access to a work without the owner’s authorization. The Court also noted that the Plaintiff did not display the links to the videos on its website in a manner that made them generally available to the public. Rather, they were displayed in a “Help Centre” accessible only to users who had logged in as an accredited instructor or administrator, having previously acknowledged and agreed to abide by the Plaintiff’s Terms of Service. Moreover, nothing in YouTube’s Terms of Service permitted the Defendant to share unlisted links that were only accessible through the Plaintiff’s platform. The Court also found the Defendant’s fair dealing defence showed no real prospect of success after analyzing the various “fairness” factors. The Court concluded the Plaintiff had met its burden under s. 4 of the PPPA to show grounds to believe that its claim alleging infringement of copyright by sharing the links has substantial merit and that there are no valid defences to the claim.
The Court then proceeded to determine whether the Plaintiff’s interest in proceeding with the action outweighed its deleterious effects on expression and public participation. The Court found that the corresponding harm to the Plaintiff would be limited and that the evidence suggested that the particular risks were unlikely to materialize. Nonetheless, the Court found that the focus of the action was narrow. It was not targeting critical expression of the Plaintiff or its software, but rather was focused on enjoining the public sharing of confidential information from its platform intended exclusively for instructors and administrators. The Court also found that it was not necessary for the Defendant to breach a duty of confidence or infringe copyright to convey the opinions he wished to convey. Consequently, the Court found the Plaintiff had met its burden and that the application under s. 4 of the PPPA should be refused.
The Proctorio decision demonstrates two key principles. First, Internet and social media users should ensure that they only distribute content that they have the right to share. Simply because content is available online does not grant a license or permission to use or share that content. Second, users should read the fine print of any governing terms and conditions to understand what they have a right to use and share.