On the last day of the Blacklock's v AGC trial in the middle of plaintiff's counsel Yavar Hameed's closing arguments, Judge Barnes intervened: "When I read the terms and conditions I was confused."

Justice then pointed out that Blacklock's Reporter's web page on copyright states that a subscriber can use the copy for "personal or non-commercial use."  He then posed the question why Sandra Marsden, President of the Canadian Sugar Institute, shouldn't have had the right under its terms and conditions to share a couple of Blacklock's articles pertaining to Finance Canada with Patrick Halley, an employee at the department, as it could fall under "non-commercial use", thus waiving Blacklock's claim to copyright.  If Judge Barnes comes to this conclusion in his ruling it would void the claim that the copy Halley distributed was infringed.

Hameed rebutted that it wasn't for a non-commercial use and Patrick Halley didn't just read it, but also distributed to several other employees within the department.  He stressed that Blacklock's wasn't misusing its copyright and that their "material has a value [and] it has been shared."

Hameed focused primarily on the use of Halley, and argued that "distribution as part of the use" was an unfair dealing with the news site's material.

Plaintiff's counsel questioned the validity that it was "research" purposes that all of the defendants were using the articles for.  He also claimed that the onus to prove that all of the dealings were fair lies on the defendant to prove.

At the end of his closing argument Hameed discussed that the plaintiff was seeking the cost of a bulk subscription to Blacklock's for all of Finance at $17,816.71.

At one point during Hameed's arguing of costs, Judge Barnes suggested that the amount may be "inflated" and "large".  Judge Barnes suggested the cost may be much lower, since it wasn't department-wide distribution, meaning it was only worth six single subscriptions in the evaluation of several hundred dollars.

Judge Barnes briefly touched on paywalls and how Blacklock's strict paywall cuts off all outside access to it's content and the right to read.  "The paywall is a de facto barrier.  If someone wants to get the article there isn't anywhere else to go.  If you really want to get it you have to pay.  It is a real barrier in that sense."

Hameed also referenced former cases to argue that Finance's use of Blacklock's content was unfair because the defendants did nothing to limit the circulation of the articles.

"Each user was doing research.  That is an onus for the defendant to show.  Maybe it did go downstream," said Hameed.

"So every time you are sent an article you have to find out if it is copyright protected?" said Judge Barnes.  "Millions of times a day copyright material is probably shared in this country."

Judge Barnes also suggested that "some discreet distribution" could be considered fair dealing and posed the question — should a news service that misquoted the state have the right to protect the material in question?

Hameed continually returned to the question of Finance not taking precautions to limit distribution of the two articles: "Was their leakage?  Was it nailed down?"

Throughout Hameed's closing Judge Barnes was adamant on how he was going to determine his ruling: "I'm going to be the one that makes the decision on whether this was fair dealing.  That's where the rubber hits the road, isn't it?"

At the end of Hameed's closing argument Judge Barnes commented on the media attention the case has received: "I don't think this case is as profound as you and others made it out to be."

Alex Kaufman's close was much shorter.  He tried to display how Blacklock's misused copyright and tried to induce the government into circulating its content.

"It's not to deter infringement.  Their actions are to distribute and then punish afterwards," Kaufman said.  "They are expecting it and encouraging it."

Judge Barnes explained that it would be difficult to determine the defendant's claim of "copyright troll" without looking at the nine other cases filed by Blacklock's against other departments.

But Judge Barnes did admit he saw Kaufman's argument.  "There is a pattern of this behaviour.  Deliberate mistakes to provoke someone into wanting to see it."

Judge Barnes also said that the relatively small amount sought by Blacklock's runs counter to the claim that they are trying to make a profit.

Kaufman explained he had spent a lot of time "scratching his head" on it himself, and figured out that if Blacklock's wins it's one case and the other departments settle the news site could be awarded $600,000.

Kaufman then continued painting the narrative of Blacklock's setting up the government for litigation.

Kaufman pointed out that all of the access to information requests to departments that had Blacklock's accounts happened roughly nine months after registration with the news.

Judge Barnes agreed that "it's a very aggressive business model."

Kaufman also continued to hammer on the journalistic integrity of Tom Korski, editor of Blacklock's with 35 years' experience.  "He waits nine months because he knows that something will turn up," Kaufman asserted.

"Spin is one thing, but falsity is entirely another."

Kaufman finished his close by referencing a precedent-setting Supreme Court decision that ruled that fair dealing should outweigh one's copyright.  He then passed it off to his colleague to argue that "The amount of damages should be none at all."  The defendants are also asking that plaintiffs' cover costs.

Judge Barnes then closed the hearing and stated that it was an interesting case.  He also told both counsels that he wouldn't promise a time for when he would come to his ruling, but that he would try to speed things along.  The ruling might take several months.

Written by Graeme C. Gordon