Ismaili.NET - Heritage F.I.E.L.D.Copyright Lawsuit: Defenses Glorifying the Aga Khan filed in federal Court - 2010-04-29
In a surprisingly rapid twist of events, both Mr Tajdin and Mr Jiwa have filed their respective statements of Defense this 29th of April 2010. They affirm to being devoted followers who will unconditionally abide by the wishes of the Aga Khan, whom they glorify in their defense.
Mr Tajdin declares that:
He has not been served yet but the ethics imposed upon him by his faith demands that he should not keep in ignorance the public by being silent on the issue and should clarify all of the facts, pertaining to this lawsuit, of which he is aware.
He reaffirms his allegiance to the Aga Khan, is willing to submit to any of his wishes, and is ready to surrender himself and all his possessions to the Imam.
He has been printing Farman books since 1992 with approval and instructions from the Imam received on August 15, 1992 in Montreal.
He has not received any communication from the Imam from 1992 to 2009 instructing him to stop publication.
He cannot stop publication without instruction from the Imam as this would be a breach of his oath of allegiance to the Imam.
All Farman publications were financial deficit projects done as a volunteer service and large numbers of books were distributed free of charge.
Farman sharing is a historic Ismaili tradition which still continues today.
The current Ismaili Constitution does not restrict the right to publish Farmans
Mr Tajdin concludes that:
He has no choice but to await further direct instructions from the Imam.
He reaffirms his allegiance to the Aga Khan, is willing to submit to any of His wishes, and is ready to surrender himself and all his possessions to the Imam.
Mr Jiwa states that:
"This action does not appear to have been authorized personally by the Aga Khan .."
"In distributing Farman books obtained from Tajdin to other Ismailis, he has not violated either the Ismaili Constitution or any Farmans"
He has not violated the copyright act as "Tajdin was given express authority by the Imam" and regardless of the fact that "the limitations period provided for by the Copyright Act also bars this action as the books containing the Farmans were commenced publication in the year 1992", he will still do whatever the Imam tells him to do.
Mr Jiwa clarifies finances:
He "obtains these books for C$50.00 and sells them for C$50.00 or gives them free, without any profit.
"All monies received by him from the sale of (other) books after 2005 were delivered to the Jamatkhanas"
Mr Jiwa further states that:
"If the Imam edited the Farman before releasing to the Jamats, in effect he is superceding the Farman he made orally previously."
He "unconditionally reconfirms his oath of allegiance to his Imam" and "if the Imam does not desire his Farman books to be distributed to the Jamats (...) this defendant will submit to the instructions of His Imam without reservation whatsoever"
Replies From the Plaintiff are due within 10 days, and Affidavits of Documents are due 30 days later.
[Update from May 6: Ogilvy Renault, the law firm which launched the case has asked for an extension of 15 days to reply to the Defense. They claim delays due to breakdown of email servers, blackberry communication, travel of senior lawyer, time difference with Paris etc...The more delays in this file, the more damage it creates to the reputation of the Ismaili community, the Imam and the defendants. It is to the advantage of all parties that this case be withdrawn from the courts.]
[Update from June 22: Defendants have filed a Motion for summary Judgement to have the case dismissed.]
[Update from September 5:
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
News on cross-examinations:
Copyright Lawsuit: CROSS_EXAMINATIONS Table of Contents - 2010-09-04
Latest Development
Copyright Lawsuit: Imam Appears for Discovery and Ends the Case - 2010-10-15
As users are asking to read the letters from Nagib and Alnaz on the court docket, the latest have been attached on the following link:
A. Various Court Filings
Revised Factums have been posted Here:
2010-11-29 Summary Judgment : Plaintiffs Revised Combined Factums of Reply and of Motion
2010-11-29 Summary Judgment: Defendants' Revised Factums of Motion and of Reply
There has been proven fraud in the recent past in the Aga Khan's domain by the Aga Khan's agents:
Aga Khan Lawsuit: Fraud at Aga Khan Studs - 2000-02-22
2011-05-25: A Jamati Member who has never met the Defendants volunteered as his brotherly duty to pay the $30,000 that was demanded in the Plaintiff''s submissions and that was accordingly ordered by the judge.
Read the full details of the $30,000 payment directly to H.H. The Aga Khan.
2011-06-16: The Appeal Memorandum of Fact and Law against the Summary Judgment has been filed in court by the defendants on June 16th, 2011.
Read the Full Appeal Memorandum of Fact and Law
Link to Court Docket Case T-514-10
Link to Court Docket Appeal A-60-11
Link to Court Docket Appeal A-59-11
Link to Court Docket Appeal A-156-13
| Attachment | Size |
|---|---|
| Tajdin Defence Apr 29.10.pdf | 491.02 KB |
| Jiwa AK Defence Apr 29.10.pdf | 543.82 KB |
- Printer-friendly version
- Login to post comments
- 1333239 reads
Comments
The Law - Consent ?
Sharing As received " Who Must Show Consent in an Intellectual Property Infringement Case?
Source: www.iposgoode.ca. Author: David Vaver
Professor David Vaver is a member of IP Osgoode, a Professor at Osgoode Hall Law School, an Emeritus Professor at the University of Oxford, an Emeritus Fellow of St. Peter’s College at Oxford and former Director of the Oxford Intellectual Property Research Centre.
The unauthorized publication by two of the Aga Khan’s followers of a compilation of his speeches got a fair amount of publicity last year and produced the first reported Canadian judgment on copyright of 2011, Aga Khan v. Tajdin, 2011 FC 14.
The Federal Court granted the plaintiff summary judgment and the usual remedies for copyright infringement, finding the defendants lacked the consent they said the plaintiff gave them to publish.
The court’s judgment is, however, marred by a (fortunately obiter) statement that it was not for a plaintiff in a copyright infringement suit to prove a lack of consent to the defendants’ publication.
He need not “prove a negative, i.e. that he did not give consent,” said Harrington J. at para. [30] of the judgment: consent “is a matter of defence and so the burden must lie upon the defendants.”
This statement will be the subject of a critical Note in the next issue of the Intellectual Property Journal.
The criticism is briefly this: a plaintiff who wants to show infringement of any intellectual property right must say that
(1) the defendant is doing something only I am entitled to do, and
(2) I have not given him any consent to do that.
The plaintiff cannot get away with just saying
(1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not.
That is neither good sense nor good law.
The Copyright Act does give a plaintiff the benefit of certain presumptions of authorship, copyright and title if the defendant puts those in issue (s. 34).
Lack of consent is not among them.
Intellectual property statutes, including the Copyright Act, are drafted so that lack of consent is a constituent ingredient of infringement.
Doing whatever an IP owner alone is authorized to do is not wrong: only doing so without his consent is.
Avel Pty Ltd. v Multicoin Amusements Pty Ltd. (1990), 171 C.L.R. 88.
So too with criminal copyright infringement: an Ottawa copyshop that was charged with printing student course packs in violation of the Copyright Act was acquitted because, among other things, the Crown did not show that the copyright owners of the material in the course packs had not given the copyshop consent: R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403, 414, aff’d (1995), 63 C.P.R. (3d) 229, 232 (Ont. G.D.).
In patent law too, the plaintiff who does not prove that he has not consented to the defendant’s acts expressly or impliedly will lose his infringement case: Betts v. Willmott (1871), 6 Ch. App. 239; Pfizer Corp. v. Bristol Pharmaceutical Co. Ltd., [1967] R.P.C. 346.
The argument that it is for defendants to prove they have the owner’s consent was specifically rejected in both those cases.
(but yet in this Khoja lawsuit case it unfolded differently)