Brennan v Foster Blake

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Federal Circuit and Family Court of Australia

(DIVISION 2)

Brennan v Foster Blake [2021] FedCFamC2G 261

File number(s): MLG 1877 of 2019
Judgment of: JUDGE BAIRD
Date of judgment: 3 December 2021
Catchwords: INTELLECTUAL PROPERTY – COPYRIGHT – Infringement – separate questions – where applicant alleges respondent copied applicant’s copyright material (Applicant’s Work) in her Published Work – whether respondent emailed first draft of her manuscript (Manuscript) to publisher and to agent before alleged date of access to Applicant’s Work – whether respondent has proved email sent on 2 April 2013 attached Manuscript – if so, whether Manuscript contained the text applicant identifies in the Published Work as copied from Applicant’s Work, or text substantially resembling that text – whether respondent could have had access to Applicant’s Manuscript prior to 2 April 2013 – expert forensic evidence – applicant challenges data integrity – challenge fails - first separate question answered ‘yes’ – second separate questions answered ‘yes, save for 13 extracts’ – third separate questions answered ‘no’
Legislation:

Copyright Act 1968 (Cth) ss 31, 38

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 18.03

Federal Circuit Court Rules 2001 (Cth) r 17B.03
Cases cited: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4; (2012) 95 IPR 64
Division: Division 2 General Federal Law
Number of paragraphs: 187
Date of last submission/s: 13 December 2019
Date of hearing: 3 and December 2019
Place: Melbourne
Solicitor for the Applicant: Ms Brennan was self-represented
Solicitor for the Respondent: K&L Gates
Counsel for the Respondent: Ms C Cunliffe

ORDERS

MLG 1877 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KARI JADE BRENNAN

Applicant
AND:

ZOE FOSTER BLAKE

Respondent

order made by:

JUDGE BAIRD

DATE OF ORDER:

3 December 2021

THE COURT:

Separate Questions

1.ORDERS THAT the first separate question ordered by the Court on 27 August 2019:

whether on 2 April 2013 the respondent sent the first draft of her manuscript for “The Wrong Girl” (Manuscript) by email to her then editor, Kirsten Abbott at Penguin Random House Australia New Zealand and to her literary agent, Tara Wynne of Curtis Brown Australia

is answered: Yes.

2.ORDERS THAT the second separate question ordered by the Court on 27 August 2019:

whether the respondent has proved that the Manuscript, as at 2 April 2013, contained the passages of text which the applicant alleges is copied from her novel “Playlist” as set out in Exhibit E and Exhibit F of the affidavit affirmed by the applicant on 11 June 2019, or text closely resembling those passages of text

is answered: Yes, save for 13 extracts.

3.ORDERS THAT the third separate question ordered by the Court on 27 August 2019:

whether the respondent could have had access to chapter one of “Playlist” from Bethanie Blanchard in drafting the Manuscript before 2 April 2013, given the applicant’s allegation in paragraph 6 of the statement of claim…

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Details
Case
[2021] FedCFamC2G 261
Decision Date

CaseChat Overview and Summary

The case of Brennan v Foster Blake involved a dispute between Ms Brennan and Ms Foster concerning allegations of copyright infringement in relation to the manuscript of a novel. The matter was heard in the Federal Court of Australia, where the central issue was whether Ms Foster had access to Ms Brennan's manuscript before submitting her own work to her publisher. Both parties presented expert evidence to support their respective positions, focusing on the analysis of forensic containers, word counts, and the examination of digital documents.

The primary legal issue before the court was whether Ms Foster had improperly accessed and used Ms Brennan's manuscript when creating her own novel. The court had to determine the authenticity and reliability of the digital evidence presented, particularly the forensic containers, which were crucial in substantiating the timeline and integrity of the emails and documents in question. The court also considered the differing expert opinions on the reliability of the word counts and the significance of the MD5 hash values in verifying the integrity of the forensic containers.

The court found that Ms Foster did not improperly access Ms Brennan's manuscript. The evidence of the forensic containers, collected and preserved by Mr Geri and analysed by Ms Dalton, demonstrated that Ms Foster sent her manuscript to her editor before Ms Brennan's manuscript was sent. The court was satisfied with the thoroughness and reliability of the forensic analysis and the experts' evidence, rejecting the speculative nature of Ms Wise's testimony. The court concluded that the timeline established by the forensic evidence supported Ms Foster's claim that she created her manuscript independently.

The court issued an order dismissing Ms Brennan's claims against Ms Foster and Ms Blanchard, with each party to bear their own costs of the proceeding. The court's decision was based on the robust forensic evidence and expert analysis, which effectively demonstrated the integrity and independence of Ms Foster's manuscript creation process.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

I requested the aide‑memoire as a guide to the word count demonstration given in Court on 3 December 2019. At the conclusion of the hearing I granted Ms Foster leave to file and serve the Aide‑memoire, and stated that if it was proposed to be tendered, I would receive the USB containing the Foster Manuscript as an exhibit. It is appropriate that I now formally record that I receive the USB as an exhibit as the document used in the demonstration commencing at transcript page 101 line 19, on 3 December 2019. As I said in the December hearing, I treat the aide memoire as a document to assist in my consideration of the transcript, and to explain what I saw.The statement of agreed facts The statement of agreed facts is received as formally recording the agreed facts that Ms Brennan agreed with as I stated on the transcript at 4pm on 5 December 2019 in the December hearing. The agreed facts are:Ms Brennan’s document1.At the hearing on 3 December 2019, Olivia Coburn of K&L Gates in Court using a laptop computer and projector undertook the methods described in steps 2 to 8 of the Respondent’s Aide-mémoire using a Microsoft Word document for the Applicant’s manuscript “Playlist” with the file name containing the phrase “Playlist_Final Form_PDF” (or substantially the same name) which was provided by the Applicant on a USB to Ms Coburn (Applicant’s Document). 2.Using the external method described in steps 2 to 5 of the Respondent’s Aide‑mémoire, a word count of 65,121 words was displayed for the Applicant’s Document. 3.Using the in‑document methods described in paragraphs 6 to 8 of the Respondent’s Aide‑mémoire, a word count of 75,164 words was displayed for the Applicant’s Document. 4.Two different counts were obtained for the Applicant’s Document even though the document tested was the same document; that is, the words [sic] counts are irregular. The last phrase in paragraph 3 above was included at the specific request of Ms Brennan: “that is, the words counts are irregular”. In an email sent to Chambers on 11 December 2019, Ms Brennan states that “the word counts are irregular is in the context [of] the presentation is unrealiable (sic). … The point is that I don’t agree with the presentation results because they are unreliable, which needs to be specified …”. Ms Brennan expanded on this submission in her closing submissions. The matter was agreed, and recorded by the Court. There is no warrant to reconsider it. This is because the demonstration referred to in the statement of agreed facts which Ms Brennan asked to be done appeared to be sought to allay Ms Brennan’s concerns about how and why different word count results were obtained in relation to the one word document that different word counts were also obtained for Ms Brennan’s manuscript (as well as for the Foster Manuscript), using different calculation tools in relation to the same document. It is not relevant to my determination of the separate questions. Relevance of the Summary Table

Evidence

Evidence Before The Court

Written outlines of submission were provided by both parties, to which I have had regard:from Ms Brennan(a)an outline of submissions dated 19 November 2019, subsequently filed on 22 November 2019;(b)closing submissions dated 13 December 2019, and final submissions on costs also dated 13 December 2019, both emailed to Chambers and to Ms Foster’s legal representatives, but not filed;on behalf of Ms Foster(c)an outline of submissions dated 19 November 2019, to which was attached a copy of the Summary Table; and(d)closing submissions dated and filed 13 December 2019.(2) The parties’ lay evidenceMs Zoe Foster I turn first to the parties’ lay evidence. Ms Foster’s affidavit evidence is that she commenced writing the manuscript for The Wrong Girl on 30 April 2012. She created it as a word document on her personal computer, and stored it on the computer’s hard drive. She affirms that she did not make the manuscript available in the “Cloud” or through Google documents. Ms Foster affirms that she created a new clean and tidy version of the manuscript before sending it by email to Ms Abbott. Ms Foster affirms that she sent the first draft of her manuscript (that is, the Foster Manuscript) on 2 April 2013 to Ms Abbott, her then editor at the Publisher, and she copied the email to Ms Wynne, her literary agent at Curtis Brown. She said (emphasis added): “Now produced and shown to me and marked Annexure ZFB‑3 is a copy of my email together with the first draft manuscript for “The Wrong Girl”. The email annexed is the email I refer to as the Sent Email. I set out the text of the Sent Email below at [127]. As I have said above at [8] the manuscript included in that Annexure is the document I refer to in these reasons as the Foster Manuscript. Ms Foster affirms that she created a clean and tidy version of the draft manuscript before sending it on 2 April 2013. She affirms that she annexes at Annexure ZFB‑5 (emphasis added), “the properties page for the word document that was attached to my email 2 April 2013”. Annexure ZFB‑5 discloses that it was opened as a read‑only document, Ms Foster is the author of the document, that it was last modified on 2 April 2013, at 3:54pm, and that the title of the document is “TheWrongGirl_ZoeFoster_First_draft”. It states the document is 884KB in size, with a word count of 99,921 words, and total editing time of 620 minutes. The Foster word count is the word count evidenced in Annexure ZFB‑5. Under cross‑examination, Ms Foster stated that she did not copy work from Ms Brennan’s manuscript. Ms Brennan pressed Ms Foster on her relationship with Ms Blanchard. Ms Foster’s evidence was that she met Ms Blanchard at an event at a writers’ festival on 24 August 2012, “and that is the summation of my entire relationship with her”. Ms Foster communicated with Ms Blanchard on Twitter, her evidence was that she wrote back to Ms Blanchard once. Ms Foster explained that they are not friends, and met only once.

Decision

Reasons for decision

I have already explained the context in which Ms Brennan approached Ms Wise, and that Ms Brennan did not proceed with any application for Ms Wise to be an expert on her behalf. As Ms Brennan said to the Court, all Ms Wise can talk of is general terms on IT and how metadata works. At the conclusion of her evidence Ms Wise stated that she had not seen enough to form an opinion as to whether the emails, and/or the manuscript were legitimate. Conclusion on expertise I accept that each of Mr Geri and Ms Dalton are well qualified by their expertise and experience, and by their inspection and analysis of the Forensic Containers to assist the Court in this matter. They each gave their evidence clearly and objectively, and endeavoured to answer questions in such a way as to ensure that the Court and the parties could understand, further explaining or clarifying their answers as required. Both experts were independent in their analysis, and their evidence. This strengthens my view that their evidence is reliable and based upon their specialised knowledge and expertise in this area. I place significant weight on the evidence of Mr Geri and Ms Dalton. Whether or not Ms Wise could qualify as a relevant expert, I consider that her evidence to the Court was of such generality and speculation, and given in the absence of any considered review or analysis of the Forensic Containers, so as to be of no assistance to the Court. It follows that in the present case I do not accept Ms Wise is a relevant expert. I have had regard to the evidence of Ms Dalton, and Mr Geri, in preference to any opinion proffered by Ms Wise. The Forensic Containers (collection, preservation, and provision) It is convenient here to state my conclusion from my consideration of their evidence which follows on the Forensic Containers:(1)that I am satisfied that Mr Geri caused to be taken (a) a forensic image from Ms Foster’s email account on her computer of the Sent Email, and (b) a forensic image from Ms Wynne’s email account on her computer of the Received Email, and that each of these collections was preserved in a separate Forensic Container;(2)I am satisfied that each of the Forensic Containers was secure, a unique MD5 hash value relating to the Forensic Container relevant to the Sent Email – that collected from Ms Foster which is “F998199ABA988ACC75B55D1E0B1EE0F”, and a unique MD5 hash value relating to the Forensic Container relevant to the Received Email – that collected from Ms Wynne which is “F848F3ED8546387BF3AC7D2A351E8426”(3)I am satisfied that Mr Geri received and analysed the two Forensic Containers, and that the results of his analysis as relevant to the questions he was asked to answer are reflected in his opinions, and explanations in the Geri Report, Geri 2, and his Supplementary Report. I accept the explanation in Geri 2 of the omission of the MD5 hash value of the Forensic Container relevant to the Received Email, whilst observing that that oversight, and the manner of presentation of the MD5 hash value in the Geri Report has caused confusion; and (4)I am further satisfied that the two Forensic Containers Mr Geri received and analysed are the two Forensic Containers he provided to Ms Dalton on the USB stick she brought to Court, which she inspected and analysed. Ms Dalton’s oral evidence

Ratio Decidendi

Legal Principle Established

Dispute concerning the Forensic Containers has involved concerns Ms Brennan raises with the MD5 hash values relating to the Forensic Containers. An MD 5 hash value is a uniquely derived alphanumeric number based on the entire data collected in the Forensic Container, and can be likened to the digital equivalent of a human finger print. It is used to provide continuity of evidential integrity. It has 32 digits. In Court demonstrations Both at the December hearing, and subsequently in her closing submissions, Ms Brennan contended that she was not provided with the Forensic Containers obtained by Mr Geri, and contended that she did not have an opportunity to have an expert witness to support her case. This is not correct; the timetabling orders gave Ms Brennan that opportunity: see [12] and [30] above. Rather, as I have said, Ms Brennan did not obtain and file a report from Ms Dalton. In October 2019, however, after the time for the filing of evidence according to the timetable ordered had passed, Ms Brennan contacted Ms Emma‑Jane Wise, a lawyer with certain expertise in cyber law, and provided her with a questionnaire. At the December hearing Ms Brennan informed the Court the questionnaire was to enable Ms Brennan to complete her questions to Mr Geri, and she did not need to put the questionnaire in evidence. As I have said (above at [18]), Ms Brennan did not make any application to vary the Court’s orders to nominate Ms Wise as a further IT expert, and inspect the Forensic Containers. Ms Brennan subpoenaed documents from Ms Wise, but did not tender any of the subpoenaed documents at the December hearing. Ms Brennan subpoenaed Ms Wise to give oral evidence at the December hearing. I allowed Ms Wise to give evidence at the hearing, and she did so. I invited Ms Wise to observe Ms Dalton’s demonstration (see following paragraph), and she did so, sitting next to her. In the December hearing, using laptops and a projector of the laptop screen, in the course of their oral evidence in Court:(a)Word count demonstration: Mr Geri demonstrated, with the assistance of Ms Coburn (solicitor of K&L Gates) operating the laptop and projector, how different word counts of the same word document – a copy of the Foster Manuscript - can be obtained electronically when performed externally to the document using Windows Explorer, and when performed internally from within the document using Microsoft Word properties tools. Ms Brennan then presented Mr Geri with a USB containing a copy of her manuscript, and the same two counts were performed using her manuscript. Different word counts of the same document were obtained when using the different methods;(b)Forensic Containers inspection and analysis demonstration: Ms Dalton brought the USB stick she had received from Mr Geri’s office, and her own laptop to Court, and using them demonstrated how she identified the two Forensic Containers on the USB, that the Sent Email was in one Forensic Container, and the Received Email in the other Forensic Container, what she did in performing the inspection and analysis she was requested to do, and the conclusions she reached. In the course of giving her evidence she performed MD5 hash verification, and performed internal and external word counts of the Foster Manuscript attached to the Received Email.