Credibility idol, Overestimating The Scope of Sex
96 minutes of unauthorized recordings of a vocal performance accomplished through intrusion upon the author's seclusion for the purpose of mixing sex samples into a commercial song.
According to Canadian Courts, the author's sexuality is a valid defense to copyright infringement, based on evidence of intimate emails between the parties. Stoyanova c. Les Disques Mile End, 2018 QCCA 1788
How the defense of a gratuitous, implicit license survived summary judgment in 2013. Stoyanova c. Les Disques Mile End, 2013 QCCS 5631
(A) Does the implicit licence defense to a commercial infringement claim, absent any contract, and based on the author's sexuality, constitute sexual harassment in the course of proceedings?
(B) Does a party who defends a co-defendant's infringement in judicial proceedings thereby authorize co-defendant's infringement?
(C) Is the introduction of rape myths into an IP case a valid criteria in the evaluation of infringement and privacy invasion damages?
March 19, 2019, There are many ways to be the wrong side of history:
One way is to stick to the out-dated view that only a “work” merits legislative protection while the various components of a work don't, and to make things even more interesting, cite CCH v. LSUC (which deals with fair use through a library photocopier!!!), in order to contend that private information accessed and subjected to reproductive processes should not be construed as property.
Each and every fragment of data may not be a “work” per se (and we shouldn't really care if it is), but when it is accessed and used through copyright relevant processes, such as extraction and reproduction, then information is being normalized and copyright-protected use takes place.
Having just read the amended directive adopted by the European Parliament, I’m glad to note that section 8(a) rejoins the current trend in the air of why privacy data should be treated like copyrighted material. This is not even the controversial part of the directive.
However, s.8(a) deals with “lawful" access and reproduction. Logically, in matters of unlawful access to privacy data, followed by unlawful reproduction, aggravated and punitive damages should be imposed on wrongdoers, so as to deter such high-handed bullshit.
This one goes out to whoever decided to rewrite my grounds for appeal last October 24, and ask the intelligent question of whether a specific privileged sound, unlawfully accessed and unlawfully subjected to reproductive processes, is a “work”... I couldn’t have come up with such a question, even if I tried really, really hard, but here is your answer: it doesn’t have to be.
Lawful means expressly consented to by owner. A data owner is literally each and every person. Data, as we speak is way more valuable than most "works" out there. Therefore, consent can no longer be the elastic gender-biased notion that Quebec courts are pushing it to be. Usually, what courts refuse to fix ends up as legislative proposals in Parliament (of Canada). One way or another, we'll arrive in the 21st century.
Le 24 octobre 2018, la Cour d'appel a mis fin à la controverse quant à l'identité du producteur des enregistrements sonores du 10 juin 2010 et du 14 juillet 2010 qui ont servi à la confection des 10 remixes non autorisés de l'oeuvre musicale Bonboni. La Cour d'appel a confirmé que Les Disques Mile End (présentement exploitée sous le nom Griffintown Records par le syndic à la faillite Litwin Boyadjian Inc ) est le producteur et non pas une licenciée exclusive sur le droit de reproduction dans ces enregistrements, comme l'avait conclu la Cour supérieure au paragraphe 58 du jugement de première instance (Stoyanova c. Les Disques Mile End, 2018 QCCA 1788 ).
Malgré son adhésion à l'Entente collective du phonogramme, le producteur a réalisé les séances d'enregistrement sans contrat et sans cachet à la résidence privée d'un musicien indépendant dans une "ambiance sex, drugs, and rock and roll" avec prise subreptice de photos intimes de l'artiste-interprète, ce pour quoi le musicien a été rémunéré, mais pas l'interprète.
Validé par les tribunaux québécois, ce modèle économique compromet tout espoir d'équité salariale dans l'industrie du divertissement et expose la différence de traitement des justiciables sur la base du sexe.
(A) Est-ce que la défense de la licence implicite à la commercialisation d’une chanson, sans contrat et sur la seule base de la sexualisation de l’auteur interprète, constitue de l’harcèlement sexuel en cours d’instance et un abus de procédure?
(B) En ayant défendu cœur et âme la contrefaçon des Disques Mile End à l’instruction, l’intimé Nicolas Maranda a-t-il autorisé cette contrefaçon de manière illicite et intentionnelle? Si oui, est-il solidairement responsable des conséquences pécuniaires de la contrefaçon?
(C) Est-ce que l’introduction des «mythes du viol » dans un dossier de propriété intellectuelle et les perceptions rétrogrades sur la sexualité féminine ont eu pour effet de supprimer les conséquences non pécuniaires de la commercialisation de l’œuvre et le caractère intentionnel de l'atteinte à la vie privée de l’auteur interprète?
Commercial Interest Argument by on Scribd
Other than providing the best defense ever for tech giants’ privacy data commercial deals (since it is easier to "overestimate" the scope of a written contract consented to by a user, than is the scope of silence), this is the first IP case to have successfully imported rape myths as a defense to infringement damages.
There was the famous Cinar case from 2009, in which a male plaintiff alleged having felt like a “raped woman” as a result of copyright infringement and got awarded $400,000 in non-pecuniary damages + half a million in punitive. There was not a shred of evidence the male plaintiff experienced any of the classic non-pecuniary consequences of rape: trauma, humiliation, stigma, oppressive silence, fear of not being believed… not a word on these. At the same time, no raped woman in Quebec has ever been awarded more than a 100,000$ in non-pecuniary damages. In sum, sex references generally boost male credibility and impeach female credibility.
I use the terms "woman" and "female" to include all non-hetero + gender-nonconforming victims, who are subjected to these inequalities in our justice system.
As for the tort of privacy invasion, in BC and ON, it is codified as a statutory offence, where no proof of damage is required, and intent is understood in narrow terms, as wanting to bring about the violation of privacy.
In QC, strange as it may seem, privacy invasion is dealt with in negligence terms (it’s so super weird, I know). Maybe it is because there is only one section that deals with civil liability, where they threw in the reasonable person, but there is no clear distinction between intentional torts and negligence. It is total chaos. Nobody seems to know what intent is, because systematically intent is assimilated to malice (absent any allegations of malice). Bottom line is, proof of damage is required, in order to prove intrusion upon seclusion.
In my case, it went even further, damages were slashed because one defendant felt “defamed” by the proceedings and went on to “denounce” the defamation on social media in order to instigate a defamation lawsuit (Court of Appeal final at para. 28)!
Not very original because in QC everybody feels defamed, especially if they’re being sued. This is the most hyper-sensitive to speech state in the world. The first thing I learned by heart before going to law school is all the defenses to a defamation claim. What’s bizarre is when a defendant’s self-esteem issues become a valid defense to IP infringement and invasion of privacy damages.
Even absent any allegations of rape, sex based stereotypes are accepted as valid defenses to IP infringement and invasion of privacy. The implicit bias that non-chaste women are liars runs so deep that it frequently manifests as medieval forms of “victim blaming”.
How do rape myths translate into intellectual property (or selling data, if you want) :
(1) The « real rape » stereotype : not filing a complaint immediately is ground for impeachment
Translated into IP: you have to send a “lettre de mise en demeure” in the 30 days of discovery of infringement. Otherwise it is a bar to non-pecuniary damages. If something weird of sexual nature involving you and your work has been brought to your attention, remaining calm while trying to figure out how to deal with it is ground for impeachment. Unless you make a scene right away, get the whole thing on film, and immediately send "mise en demeure", you will be impeached.
In Quebec, the 3 year statute of limitations doesn’t seem to apply to women considered “unchaste”. In comparison, there is no statute of limitations for sexual misconduct, battery or assault in intimate relationships in Ontario Civpro.
(1.2) Silence = joy and consent
Translated into IP damages: you lose all right to compensation if you don’t send mise en demeure in the 30 days of damaging event
(2) Sexualizing survivors, focus on history and character of complainant as part of concerted attempt to discredit her
Translated into IP: if you ever had sex in your life, it means you are immune to pain and suffering. Forget non-pecuniary damages.
(3) Smiling = implicit consent to sex; not smiling = not feminine = hysteric Translated into IP and privacy: A woman who smiles, automatically approves non-consensual recordings that will be brought to her knowledge years later. A woman who doesn’t smile is a “crisse de folle”.
(4) Women make false allegations about rape Translated into IP and privacy: la femme qui dit NON a une « propension de déformer la réalité »
(5) Women who sue in civil suits are “greedy”. If you bring a case, you’re a shameless woman, whence the slut-shaming.
Female performers and authors are expected to work for free. Rape myths trump collective agreements. Mile End Records' case is the living proof of that. Not one judgment acknowledges that the label signed a collective agreement, expressly promising the union to pay artists and to ask for their written consent, not their forgettable ex-boyfriends' consent, but the artist's.
The first thing the Union des artistes did in 2012 when I needed an injunction is to simply throw me out of the union. I still have their ultimatum letter: "you either go back to work, or you're out of the union". I was like, dude I'm in 600 stores around the world and I'm not being paid. You want me to keep working for nothing. To them it wasn't work because their producer didn't sign a recording contract. And since they have no jurisdiction over international commerce and invasion of privacy, they barred me from ever working again in the province of Quebec.
(6) A man can consent for a woman, the burden of proof is on her to show absence of consent to every 3rd party who alleges her consent.
IP: self-explanatory and in total contradiction with s. 13, CRA The less she knows, the more she consents, the less harm she suffers. Forget about balance of probabilities in civil proceedings. Burden of proof is different for women.
Because of pervasive rape myths in civil proceedings, you will always be judged on an inflated burden of proof.
In conclusion, I may be wrong, but after 6 years of litigation (which should’ve been over in 6 months, weren't it for myths), I am under the impression that in QC there seems to be a deficit in understanding of traditional property rules, in particular conveyances of land and future interests, which are the foundation for all IP legislation. Unless you work in tech or entertainment, or carry historical land trouble in your blood, you may never appreciate the true power of IP. It is like trying to paint abstract art, before you learn how to paint a recognizable horse. A mediocre mess.
Historique des procédures en deuxième instance:
Tableau de plaido, 24 octob... by on Scribd
Pursuant to the Canadian Copyright Act, the maker of a sound recording is the person who undertakes the arrangements necessary for the first fixation of the sounds. The trial judge alluded that the corporation Mile End Records is the maker of the sound recordings, but held at the same time that the same corporation was a licensee in the reproduction rights of these recordings, having overestimated the scope of the license on the basis of the artist’s sexual conduct.
On appeal, it was confirmed that the corporation is the maker of the non-consensual recordings regardless of who undertook the arrangements for their first fixation. Since there is a direct connection between the recordings and the maker, there’s also a direct connection between the maker and performer’s performance in these recordings.
A licence given by a 3rd party to the maker to publish, reproduce, rent out these same recordings, and authorize any such acts, would directly contradict the defendant corporation’s ownership in the recordings and its status as their maker.
As the owner of the sole right to copy the recordings pursuant to s. 18, CRA, the maker is the only person who can give authorizations to publish, reproduce, rent out the recordings, and authorize any such acts. Therefore, it is no longer necessary to determine who authorized copies of the recordings on the basis of sexual conduct of artists. All liability for sexual misconduct goes to the corporation.
Since January 2016, the maker’s assets, several hundred sound recordings with significant commercial potential, are being controlled and exploited by the trustee in the bankruptcy, Litwin Boyadjian Inc.
Cahier de sources, Cour d... by on Scribd
"mix et remix sont partis en bâteau, mix tombe à l'eau, qui reste?"