Some advice for the beleaguered and backward states of Illinois, Massachusetts, et al.: If police are not obliged to ask our permission before recording their public encounters with us, then we should not be obliged to ask their permission before recording our public encounters with them. That states generally dominated by so-called progressives should be so insistent upon asymmetric police powers and special privileges for government’s armed agents is surprising only to those who do not understand the basic but seldom-spoken truth about progressivism: The welfare state is the police state.
Why Illinois Republicans are on board is another matter, bringing up the eternal question that conservatives can expect to be revisiting frequently after January: What, exactly, is the point of the Republican party?
Illinois is attempting to resurrect what the state’s politicians pretend is a privacy-protecting anti-surveillance law; in reality, it is the nearly identical reincarnation of the state’s earlier anti-recording law, the main purpose of which was to charge people who record police encounters with a felony, an obvious and heavy-handed means of discouraging such recording. Illinois’s state supreme court threw the law out on the grounds that police do not have a reasonable expectation of privacy when carrying out their duties, though police and politicians argued the contrary — apparently, some part of the meaning of the phrase “public servants” eludes them. The new/old law is, by design, maddeningly vague, and will leave Illinois residents unsure of which encounters may be legally recorded and which may not.
Here is the solution: Pass a law explicitly recognizing the right of citizens to record police officers. It is important to note that such a law would recognize a right rather than create one: Government has no legitimate power to forbid free people from using cameras, audio-recording devices, or telephones in public to document the business of government employees. The statute would only clarify that Americans — even in Illinois — already are entitled to that right.
Kevin D. Williamson, “Prairie State Police State”, National Review, 2014-12-10.
January 7, 2016
QotD: The right to record police officers
December 29, 2015
QotD: The health benefits of moderate drinking
Should we consider mandatory graphic warning labels on bottles of booze? Our science reporter Tom Blackwell reviewed various Canadian discussions of the idea in these pages yesterday, suggesting that it is being looked at behind the scenes by addiction researchers. Labels with colour images of diseased esophagi on liquor labels would, of course, mimic the approach Canada has already taken toward cigarettes. So, well, why not? They say if you have a hammer, everything looks like a nail: by a similar token, if your field is addiction, no doubt everything that has addictive qualities looks like an unsolved problem.
But there is one very obvious way in which liquor is not like cigarettes: scientists are reasonably sure that light drinking has positive public-health consequences. If you don’t believe me, you can look up articles like the one I have in front of me here from a 2013 issue of Annals of Oncology: its title is “Light Drinking Has Positive Public Health Consequences.” As a layman I obviously can’t be certain I have summarized this editorial correctly, but you’ll have to trust me.
Colby Cosh, “The real problem with liquor warning labels — there’s such a thing as good drinking”, National Post, 2015-12-17.
December 28, 2015
QotD: Nuremburg revised
It takes a while, sometimes, for news to reach me from Kampala, Uganda. But a correspondent alerts me, this morning, to the result of the Review Conference of the International Criminal Court, declared on Saturday, 12th June, 2010. It is big news indeed: signatories have agreed to make starting a war into a grave international criminal offence. Henceforth, anyone who starts one goes straight to The Hague, to be disciplined for his improper behaviour. This means he could face years of hearings. Surely, knowing that will stop aggressors dead in their tracks.
How relieved one feels, to know there will be no more wars.
As my correspondent mentions, this may seem a small thing in the labour of ages. But it is a first step, a “baby step,” decisively in the right direction.
I entirely agree, and look forward to further efforts by the United Nations, on behalf of the ICC. For I think they should also have laws against earthquakes, floods, and tornadoes.
David Warren, “Nuremberg revised”, DavidWarrenOnline.com, 2014-12-05.
December 24, 2015
So what about that Mens Rea stuff anyway?
Scott Greenfield on an important legal quirk:
The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.”
So why do some laws lack a mens rea requirement? They tend (though are hardly so limited) to be regulatory laws that are backed up by criminal sanctions. There are tens of thousands of laws that demand people do or not do some remarkably inconsequential act, such as not throwing undersized fish over the side of a boat.
The way Congress compels compliance with these trivial regulations is to enforce it with a criminal sanction, such as “failure to do X is a felony punishable by up to seven million years imprisonment.” And there are, literally, tens of thousands of opportunities to visit Club Fed.
These laws have been subject to strict liability, not because they are so evil and harmful, as they are almost invariably malum prohibitum laws, wrongs only because Congress says so, not because they reflect some inherent immorality. The problem, as was made clear in the fish case or the Gibson guitar case, is that no one knows all the tens of thousands of regulations the government enacts, creating a trap for the unwary when there is no rational reason to believe that conduct is wrong, no less criminal.
Of course, as the DoJ points out, the maxim that “ignorance of the law is no excuse” (except if you’re a cop) has been around for centuries. What hasn’t been around for centuries, however, are the tens of thousands of trivial regulations that can land someone’s butt in prison just as well as a nice drug conspiracy. So Main Justice didn’t show Sensenbrenner’s bill the love.
If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.
By “countless,” she means too few to count. Or she means nothing other than a new law would limit prosecutors to only those defendants who deserved to be prosecuted. That would cause sad prosecutor tears.
December 20, 2015
When the police are afraid to investigate crimes
In the town of Rotherham, the local police have been effectively hiding a massive criminal conspiracy for fear of being accused of racism:
Fifteen years ago, when these crimes were just beginning, the Stephen Lawrence Inquiry into the conduct of the British police was made by Sir William Macpherson a High Court judge. The immediate occasion had been a murder in which the victim was black, the perpetrators white, and the behaviour of the investigating police lax and possibly prejudiced. The report accused the police – not just those involved in the case, but the entire police force of the country – of ‘institutionalised racism’. This piece of sociological newspeak was, at the time, very popular with leftist sociologists. For it made an accusation which could not be refuted by anyone who had the misfortune to be accused of it.
However well you behaved, however scrupulously you treated people of different races and without regard to their ethnic identity or the colour of their skin, you would be guilty of ‘institutionalised racism’, simply on account of the institution to which you belonged and on behalf of which you were acting. Not surprisingly, sociologists and social workers, the vast majority of whom are professionally disposed to believe that middle class society is incurably racist, latched on to the expression. MacPherson too climbed onto the bandwagon since, at the time, it was the easiest and safest way to wash your hands in public, to say that I, at least, am not guilty of the only crime that is universally recognised and everywhere in evidence.
The result of this has been that police forces lean over backwards to avoid the accusation of racism, while social workers will hesitate to intervene in any case in which they could be accused of discriminating against ethnic minorities. Matters are made worse by the rise of militant Islam, which has added to the old crime of racism the new crime of ‘Islamophobia’. No social worker today will risk being accused of this crime. In Rotherham a social worker would be mad, and a police officer barely less so, to set out to investigate cases of suspected sexual abuse, when the perpetrators are Asian Muslims and the victims ethnically English. Best to sweep it under the carpet, find ways of accusing the victims or their parents or the surrounding culture of institutionalised racism, and attending to more urgent matters such as the housing needs of recent immigrants, or the traffic offences committed by those racist middle classes.
Americans too are familiar with this syndrome. Political correctness among sociologists comes from socialist convictions and the tired old theories that produce them. But among ordinary people it comes from fear. The people of Rotherham know that it is unsafe for a girl to take a taxi-ride from someone with Asian features; they know that Pakistani Muslims often do not treat white girls with the respect that they treat girls from their own community. They know, and have known over fifteen years, that there are gangs of predators on the look-out for vulnerable girls, and that the gangs are for the most part Asian young men who see English society not as the community to which they belong, but as a sexual hunting ground. But they dare not express this knowledge, in either words or deed. Still less do they dare to do so if their job is that of social worker or police officer. Let slip the mere hint that Pakistani Muslims are more likely than indigenous Englishmen to commit sexual crimes and you will be branded as a racist and an Islamophobe, to be ostracised in the workplace and put henceforth under observation.
December 5, 2015
A life of crime … derailed
At American Digest, Gerard Van der Leun recalls how his budding teenage life of crime was brought to a sudden halt:
As a teenager my addiction to science fiction paperbacks often came into conflict with my ongoing cash-flow problem. To wit, I hadn’t any. But, for a few brief, shining weeks I did discover a resource better than cash for acquiring science-fiction paperbacks — my pants.
Yes, at some point it dawned on my tiny teenage brain that, if I could just get these piles of paper down the front of my pants and walk without a waddle out the door of the store, the latest Asimov or Heinlein would be free. What was even better was my discovery that I could, after reading these stolen gems, take them back to the bookstore from which I boosted them and sell them back to that dull owner for a credit to buy other paperbacks. Cost of stock: $0, Price received: $0.25, Profit — infinite. What a business! I was a confirmed capitalist. I even thought of a name for my company, World Wide Pants, and was quite upset years later when David Letterman stole it from me.
Of course I knew on some level that stuffing things down my pants, waddling out of a store and then coming back later to sell the purloined items back was …. a teeny bit wrong. But the bookstore owner had so many science fiction books and I had so few. “From bookstores according to their stock, to me according to my need to read,” seemed to be my moral code at the time. Besides, I wasn’t “really” stealing them because I “returned” them for a fee. It was a way of letting the bookstore owner sort of reverse-rent them to me.
I started small — maybe a slim collection of short stories like The Green Hills of Earth, or a novella such as “Children of the Atom,” would find their way to their temporary home between my belt and my underwear. But then I decided to expand. After all, it seemed to me that my pants had room to spare especially if I let my shirt tails hang out. Once that was in my mind, I started to up the ante and began to go for multiple copies of Ace Doubles. My pants became, in effect, a small bookshelf.
The owner of the bookstore down in the slums of Sacramento was, I was certain, clueless as to what was going on. He was a wispy simulacra of William Burroughs with the gray haze of alcohol hovering about him and a tendency to give me a smile that was a little too warm whenever I came into the shop. He’d often disappear into a curtained nook with the sign “Special Titles — Ask for admittance” thumbtacked to the bookshelf next to it.
My undoing came one day when I think I had probably added a full two inches to my waistline in the science fiction section. I waddled to the cash register with one tattered copy of some space opera and slid my quarter across the counter. He looked at it, looked at me, took the quarter and slid the book into a flimsy paper bag and handed it back. “See you soon,” he said with a wink. I turned and had gotten out the door and a couple of steps down the sidewalk when the bony hand of retribution clutched my shoulder. “I see you’re gaining a little weight,” he said in a voice that betrayed an unhealthy interest in Lucky Strikes. “I think we need to talk to your parents about this. Come on back in.”
There’s no way to describe the churning, burning hunk of fear that forms in your stomach the first time you’re busted. If, at that moment, you could chose between death and juju, death would win every time — but only because you don’t know that you’ll get death only after juju.
Los Angeles comes up with a new way to use technology to make life worse
Nick Selby on a new Los Angeles initiative to come up with the worst possible use of technology:
… the monumentally over-reaching idea posed by Nury Martinez, a 6th district Los Angeles city councilwoman, to access a database of license plates captured in certain places around the city, translate these license plates to obtain the name and address of each owner, and send to that owner a letter explaining that the vehicle was seen in, “an area known for prostitution.”
Councilwoman Martinez feels that prostitution is not a “victimless” crime, and that by discouraging johns, the incidence of the crime can be reduced. Martinez told CBS Los Angeles, “If you aren’t soliciting, you have no reason to worry about finding one of these letters in your mailbox. But if you are, these letters will discourage you from returning. Soliciting for sex in our neighborhoods is not OK.”
The Los Angeles City Council voted Wednesday to ask the office of the City Attorney for their help implementing the plan.
Have Ms. Martinez and the Los Angeles City Council taken leave of their senses? This scheme makes, literally, a state issue out of legal travel to arbitrary places deemed by some — but not by a court, and without due process — to be “related” to crime in general, not to any specific crime.
There isn’t “potential” for abuse here, this is a legislated abuse of technology that is already controversial when it’s used by police for the purpose of seeking stolen vehicles, tracking down fugitives and solving specific crimes.
December 4, 2015
Don’t bet on Quebec recapturing all that gambling money
Michael Geist on the Quebec government’s latest attempt to limit the freedom of Quebec internet users:
If there is a first rule of the Internet in Canada, it is “thou shall not block.” Canadian Internet service providers face a wide range of policies that have implications for accessing content including net neutrality rules and the copyright notice-and-notice system. Yet in virtually all cases, blocking or removing content is simply not done (the lone exception is a limited, private sector led initiative to block child pornography images).
My weekly technology law column […] notes that unlike other countries which have dabbled in mandated takedowns or Internet filtering, Canada has largely defended an “open Internet”. Canadian law does not mandate that Internet providers take down content due to unproven allegations of copyright infringement or allow them to alter or change content. In fact, the Telecommunications Act stipulates that “a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.”
Despite the clear legal mandate to avoid blocking, earlier this month the Quebec government introduced unprecedented legislation that would require Internet providers to engage in content blocking. The new bill targets unlicensed online gambling websites as part of the government’s efforts to increase revenues from its own online gambling service, which has thus far failed to meet expectations.
December 2, 2015
What did the ministry officials tell new minister Mélanie Joly about copyright?
Michael Geist commends the federal government for transparency when they published the briefing information provided to new Heritage minister Mélanie Joly, but points out that the information isn’t complete:
Last week, Canadian Heritage posted the Ministerial briefing book that officials used to bring new minister Mélanie Joly up-to-speed on the issues in her portfolio. The proactive release is a great step toward further transparency. While the mandate letter from the Prime Minister provides insight into government policy priorities, the briefing book sheds light on what department officials view as priorities and how they frame key issues.
The copyright presentation is particularly revealing since it presents Minister Joly with a version of Canadian copyright lacking in balance in which “exceptions are always subject to certain conditions” but references to similar limitations on rights themselves are hard to find. Department officials present a frightening vision of emerging copyright issues, pointing to mandated Internet provider blocking, targeting copyright infringement that occurs on virtual private networks, and “hybrid” legal/illegal services that may be a reference to Canadians accessing U.S. Netflix. The suggestion that Canadian Heritage officials have identified site blocking or legal prohibitions on VPN or U.S. Netflix usage as emerging copyright issues should set off alarm bells well in advance of the 2017 copyright reform process.
So what didn’t officials tell Minister Joly? The reality is that the Minister would benefit from a second presentation that discusses issues such as:
- the emergence of technological neutrality as a principle of copyright law
- how Canada may be at a disadvantage relative to the U.S. given the absence of a full fair use provision
- the growth of alternate licensing systems such as Creative Commons
- how term extension for sound recordings was passed even though the issue was scarcely raised during the 2012 reform process
- why extending the term of copyright (as proposed by the TPP) would do enormous harm to Canadian heritage.
Yet none of these issues are discussed in the briefing.
December 1, 2015
A Canadian “Swatter”
Cory Doctorow on the intersection of adolescent rage and police militarization, complicated by an international border:
“Obnoxious” is the online name of British Columbia teenager who spent years destroying the lives of women who had the audacity to create popular, lucrative channels on Twitch in which they streamed their amazing video-game play.
Obnoxious would get their IP addresses, dox them, DDoS them, try to blackmail them into befriending him and then to performing on-camera sex-acts for him, he would order pizzas and other crap to their homes, and then he would swat them.
“Swatting” is when you call someone’s local police force and pretend that you are a crazed gunman/bomber in their house, so that the cops show up locked and loaded, fingers on the trigger. At best, you terrorize your victim and her family; at worse, you get the police to murder one or more of them.
Jerks and people with emotional problems have used bomb threats and similar methods for decades. I went to a school where one kid — who was already in and out of residential psychiatric facilities — would routinely call in bomb threats. The precautionary principle applied — we’d go stand on the lawn and the cops would search the building — but there was none of today’s auto-immune disorder, no MRAPs parked on the lawn and cops in Afghanistan-surplus military gear hup-hupping through hallways with their fingers on the triggers.
Shutting down “Obnoxious” proved to be nearly impossible. The jurisdictional problems of getting Canadian cops to care about crimes in America, combined with American cops’ ignorance of “cyber” and tendency to blame the victims (a cop told one survivor of repeat swattings was told to stop playing games and “just pick up a book” to avoid more trouble), combined with the diffused nature of the crimes meant that Obnoxious operated with near-total impunity as he attacked more and more women.
November 28, 2015
“Free speech” means more than just allowing speech you happen to agree with
Brendan O’Neill reminds us that being a supporter of free speech requires you to support those who don’t always agree with you or express themselves in ways you’re comfortable with:
It’s the 21st century and Europe is meant to be an open, enlightened continent, and yet a man has just been sentenced to jail — actual jail — for something that he said. Will there be uproar? It’s unlikely. For the man is Dieudonné M’bala M’bala, the French comedian, and what he says — that Jews are scoundrels and the Holocaust is a fiction — is deeply unpleasant. Yet if we’re serious about freedom of speech, if we are truly committed to ensuring everyone has the liberty to think and say whatever they please, then the jailing of Dieudonné should outrage us as much as the attempts to shut down Charlie Hebdo or the jailing of a Saudi blogger for ridiculing religious belief. We should be saying ‘Je Suis Dieudonné’.
Due to the regimen of hate-speech laws in 21st-century Europe — which police and punish everything from Holocaust denial to Christian denunciations of homosexuality — Dieudonné has been having run-ins with the law for years. In 2009, a French court fined him €10,000 for inviting a Holocaust denier on stage during a gig. In March this year, a French court gave him a two-month suspended prison sentence for saying he sympathised with the attack on Charlie Hebdo and with the anti-Semite who murdered Jews at a Parisian supermarket a few days later. Now, this week, a Belgian court has given him an actual prison sentence: a court in Liège found him guilty of incitement to hatred for making anti-Semitic comments during a recent show and condemned him to two months in jail.
In all these cases, Dieudonné has been punished simply for thinking and saying certain things. This is thought-policing. It’s a PC, spat-and-polished version of the Inquisition, which was likewise in the business of raining punishment upon those who said things the authorities considered wicked. To fine or imprison people for expressing their beliefs is always a scandal, regardless of whether we like or hate their beliefs. Dieudonné really believes the Holocaust is a myth, as much as a Christian fundamentalist believes that people who have gay sex will go to hell or American liberals believe Hillary Clinton will make a good president. He is wrong, massively, poisonously so; but then, so are those Christians about gays and those liberals about Hillary. If every person who says wrong, malicious or stupid things were carted off to jail, Europe’s streets would be emptied overnight.
[…]
It is incredibly illiberal for the state to police hatred. Hatred might not be big or clever, but it’s only an emotion. And officialdom has no business telling us what we may feel — or think, or say, or write. Allowing the state to monitor belief represents a brutal reversal of the Enlightenment itself. John Locke, in his Letter Concerning Toleration (1689), set the tone for the Enlightenment as an attempt to ‘settle the bounds’ between the business of government and the business of morality. ‘The business of laws is not to provide for the truth of opinions, but for the safety and security of every particular man’s goods and person’, he wrote. That ideal is now turned on its head. Across Europe, governments ‘provide for the truth of opinions’, and in the process they silence those they don’t like and patronise the rest of us, reducing us to imbeciles incapable of working out what is right and wrong, and of speaking out against the wrong.
All hate-speech laws should be scrapped. Dieudonné should be freed. And a continent whose governments argue against the imprisonment of bloggers in Saudi Arabia while jailing comedians at home needs to take a long, hard look in the mirror.
November 20, 2015
Canada’s dubious gains from the TPP
Michael Geist gives an overview of the pretty much complete failure of Canadian negotiators to salvage anything from the Trans-Pacific Partnership agreement:
The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.
My weekly technology law column […] notes that as Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.” [a video of my recent talk on this issue can be found here].
In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.
In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.
November 19, 2015
“Changing Canada’s copyright term … means two decades where zero historical work enters the public domain”
There may be good parts of the Trans-Pacific Partnership deal, but there are emphatically bad parts, as Jesse Schooff describes in the particular case of the arbitrary extension of copyright in Canada from fifty years to seventy years:
One of the TPP areas of scope which is critical to discuss is the section on copyright. At this point, several notable bloggers* have covered the TPP’s copyright extension provisions in great detail. But what do those provisions mean for you? Let’s bring it down to the ground. For example: folks in my demographic seem to love seeing old-timey photos of their city. Here in Vancouver, exploring our retro-downtown through old photographs of various eras is practically an official pastime.
A quality source of such photo collections is a city’s municipal archives. Traditionally, an archives’ mandate is to store physical objects and documents, which include the physical “analog” photos taken during most of the 20th century. “Great!” someone might say, “the archives can just digitize those photos and put them up on their website, right?”
Let’s ignore the fact that the solution my strawperson proposes has a host of logistical issues attached, not the least of which is the thousands of work-hours required to digitize physical materials. Our focus is copyright — just because the archives has the original, physical photo in their collection doesn’t mean that they own the rights to it.
You have to remember that our newfangled, internet-enabled society is relatively new. When I was a child, if a person wanted to see a historical photo from a city archives, they would actually have to physically GO to said archives and ask an archivist to retrieve the appropriate fonds containing the photo. Journalists and other professionals likely did this regularly, but for the most part, the public at large didn’t usually head down to a municipal building and ask an archivist to search through their collection just to look at a few old photos.
Today, things are much different. If a municipal archives has digitized a significant portion of, say, their collection of 19th and 20th century historical photos, then those photos can be curated online; made accessible to the public at large for everyone to access, learn from, and enjoy!
[…]
Some of the photos, we’ll call them “Group A”, were explicitly released into the public domain by the photographer, so those are okay to use. Another bunch, “Group B”, are photos whose photographer died more than fifty years ago (1965 and before); any copyright on these photos is expired. Some “Group C” photos were commissioned by a businesses, or the rights were specifically sold to a corporation, which means that the archives will have to get permission or pay a fee to make them available online. Most frustrating is the big “Group D”, whose authorship/ownership is sadly ambiguous, for various reasons**. It would be risky for the archives to include the Group D photos in their collection, since they might be violating the copyright of the original author.
So already, knowing and managing the tangle of copyright laws is a huge part of curating these event photos. Hang on, because the TPP is here to make it even worse.
It’s been long-known that the United States is very set on a worldwide-standard copyright term of seventy years from the death of the author. Sadly, such a provision made it into the TPP. Worse still, a release by New Zealand’s government indicates that this change could be retroactive, meaning that those photos in my hypothetical “Group B” would be yanked out of the public domain and put back under copyright.
November 16, 2015
The Ontario government’s anti-SLAPP legislation
At Techdirt, Tim Cushing looks at the positive and not-so-positive aspects of newly introduced Bill 51:
Good news for Canadians! Well…some of them. This good news only applies to a) Ontario residents who a.1) aren’t vexatious litigants who use BS defamation lawsuits to silence critics.
Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.
The bill contains a provision that “would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant,” said Yasir Naqvi, Ontario’s Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. “It will extend qualified privilege in defamation law under the Libel and Slander Act.”
In other words, it’s an anti-SLAPP law. A handful of states in the US have recognized the damage bogus litigation can do to defendants even when plaintiffs clearly don’t have an actionable case. Laws like these also neutralize the chilling effect of bogus legal threats. Holding frivolous litigants responsible for legal fees tends to greatly reduce the number of questionable cease-and-desist demands issued by would-be litigants.
That such a law would be passed in Canada is somewhat of a coup considering its courts’ bizarre decisions in defamation cases. In some cases, courts have come to rational conclusions (Google is not a “publisher” of defamatory material simply by linking to it in search results). In others, courts opened up brand new avenues of liability, like in the case of blogger Michael Veck, who was ordered to pay $10,000 to the defamed party despite only re-posting what another writer had actually written.
November 12, 2015
Small claims court case with wider copyright implications
Michael Geist discusses a recent small claims court judgement:
… the case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.
While this does not sound like a copyright case, the Ottawa court ruled that the man had violated Canada’s copyright rules by breaching the publication’s paywall (an act it described as a circumvention of a digital lock) and awarded $11,470 in damages plus an additional $2,000 in punitive damages.
The Canadian digital lock rules were enacted in 2012 under pressure from the United States, which wanted Canada to mirror its safeguards on e-books, DVDs, and other digital content. Those rules typically cover circumvention of popular consumer products, but rarely involve website access. In fact, there are several U.S. cases that have concluded that sharing a valid username and password combination with someone else does not constitute circumvention for the purposes of the law.
Yet in the Blacklock’s Reporter case, the president of the CVA did not even try to access the publication’s site with someone else’s credentials. Indeed, it is difficult to see how asking for a copy of a lawfully obtained article could possibly be considered circumvention of a digital lock. Moreover, there is also a strong argument based on several Supreme Court of Canada decisions that providing the copy qualifies as fair dealing under Canadian copyright law.
As a small claims court ruling, the case has no value as precedent (and could still be appealed). However, it places the spotlight on the restrictive digital lock rules that have already caused a chilling effect within Canadian educational institutions, which often fear that circumvention for legitimate, educational purposes may violate the law.
