bob tarantino

"the last resort for us"

Buried in this story about a SOCAN action seeking unpaid public performance royalties from the Air Canada Centre is a telling nugget about just how dysfunctional the courts have become:

The 80,000-member Society of Composers, Authors and Music Publishers of Canada, formed to force commercial outlets to pay when they use copyrighted music, has put Toronto's Air Canada Centre in its sights.

SOCAN has gone to the Federal Court to claim that the centre's owner, Maple Leaf Sports & Entertainment Ltd., owes it millions of dollars -- from tariffs on ticket sales for concerts staged at the centre over the past seven years.

"It is not the venue's obligation to pay these fees, it is the concert promoter's," said Robin Brudner, lawyer for Maple Leaf. "We didn't have knowledge of the non-payment until we were sued by SOCAN."

Almost two years ago, SOCAN filed a statement of claim against Maple Leaf for those tariff fees, but the complex case is progressing slowly -- it is still in the discovery stage -- and it may be several months or even a year before the case goes to trial. [emphasis added]

That's insane.  Despite the editorial comment by the Globe that the case is "complex" (based on what's being reported, the matter is hardly all that complicated), that parties could see an action take nearly three years before even getting to trial is ridiculous.  Compare that to, say, the English copyright infringement case against Dan Brown, author of The Da Vinci Code, which went from filing to decision in less than six months.

"Graham’s nonsensical comments"

Andrew Mitrovica has an interesting article in The Walrus (discount for political bias as you see fit) on the Maher Arar saga, with particular reference to how the media and journalists handled the matter (hat tip: Daimnation!).  He names names, accusing some journalists of what I suppose is the equivalent of professional malpractice.  Over the course of a couple of thousand words, however, what I find most interesting is who he spares from any venom: namely, the Liberal governments and ministers of the Crown who were ultimately responsible for what happened to Arar.  Oh, he mentions that Bill Graham carried water for the dictatorial Syrian government when he went on the record and said that  “he personally totally rejects all allegations of torture” (which serves the caveat audiens purpose of confirming that we can completely ignore everything that Bill Graham ever says about anything); and he obliquely avers that Jean Chretien stonewalled on any calls for an inquiry; but, really, there's very little anger or even questioning directed at the government of the day.  Not once is any member of the Liberal government (other than the journalists! - shush, ed.) unequivocally condemned for their actions or inactivity on the file (compare this to the treatment of reporter Juliet O'Neill, who, it is strongly hinted, deserved what she had coming to her).  "Protecting scoundrels", intones Mitrovica, "is no substitute for journalism" - undoubtedly true, but then, which scoundrels are being protected, and why?

Mama Weer All Nationz Now

And so the contagion spreads:

We do hereby petition the Parliament of Canada, to declare the fans of the Colbert Report a nation (hereafter referred to as "the Colbert Nation"), in a united Canada.

(as the man says, "if Canada must come to an end, let's at least have some fun")

"the fraudster problem is unworkable"

There's a few rules of thumb you learn in law school.  One is that the banks always win.  Nine times out of ten, if you have a bank involved in a case, somewhere, somehow, they come out ahead.  The second thing you learn is that there are times when judges don't have the faintest clue what the real world effects of their judgments will be, and even when the deleterious effects are pointed out to them, they still don't really care.  Those, and number among them vast swathes of the commentariat, who have recently decided that judges can not ever do anything wrong and that to question either their decisions or their appointment process in even the most marginal fashion is to commit a sin greater than what in previous centuries would have been termed heresy, would do well to acquaint themselves with the Ontario Court of Appeal decision in Household Realty v Liu, wherein the court, in its wisdom, decided that people should get screwed out of their houses, if at all possible.

To recap the decision: Lik Liu owned a house.  His wife was a gambling addict who forged a power of attorney in Liu's name, and used it three times to grant mortgages to three different lending institutions (TD Bank, CIBC and Household Realty).  Two of the mortgages went into default, and one day Lik Liu wakes up to discover that the banks are foreclosing on his house, on the basis of mortgages obtained via fraudulent means, of which he had no knowledge.  His house, in other words, was taken out from under him.  Because the mortgages had been registered on the government's land titles registry, the court (evidently in reliance on the first rule of thumb I mentioned above), decided that, out of everybody who deserved to suffer in this situation, it was clearly Lik Liu who deserved to suffer the most, and ruled in favour of the banks.  Lik lost his house.  Whatever gets registered on the system, said the court, governs; of course, there's nothing to stop anyone from registering a fraudulent conveyance on title.  So the system is egregiously deficient, and it is the innocent homeowner who is forced to bear the heaviest burdne.

Now, the facts of the case may not be as cut and dried as some would like, since some would argue, and have, that Lik should have known that his wife was going through hundreds of thousands of dollars in gambling losses, he should have known, etc. etc.  But in reliance on the Household Realty decision, even more heart-wrenching, for those who need them, cases have resulted (see here for some): where a homeowner who had no knowledge of or connection with a con artist loses their house because a fraudulent mortgage or other fraudulent conveyance has been registered on the title to the property.  Try to imagine the stress involved in losing your house, or in trying to fight against a system which is completely stacked agains the innocent homeowner.

So, what has the incompetent government of Dalton McGuinty done to address this situation, more than a year later, and in the face of a rising tide of fraudulent transactions which have been enabled by the Ontario Court of Appeal decision?  Nothing.  Oh, they've made some marginal changes to a provincial compensation fund which mean that instead of spending years (plural) trying to get money to compensate you for the loss of your house it will only take you around a year (singular) (plus the thousands of dollars in legal fees you'll likely need to pay in order to obtain the compensation in the first place).  They've tabled legislation to provide for increased penalties against the con artists (who are rarely caught and even more rarely made to pay the penalty), but they've done nothing to actually help people get their houses back.  Compare this to the situation earlier this fall where they were able to move within less than 48 hours after a car crash to introduce a new seatbelt law which will likely accomplish nothing, but will make them feel better about themselves - but if you're house gets stolen out from under you, well, McGuinty and his gang are too busy doing... well, doing something, but it's not entirely clear what... to help you.

So it's been left to yet another victim of fraud and the Ontario Court of Appeal decision to go through the emotional and financial stress of trying to fight this through the courts.  Based on the report of the arguments which occurred yesterday, it doesn't sound like the Court of Appeal is inclined to reverse its earlier decision.  So everybody gets let down by not just the enabling courts, but by the negligent government as well.

"within hours, he was replaced"

Permit me a few comments on last night's Parliamentary motion recognizing "les Quebecois" as a nation within a united Canada.  On my way to work this morning, I noted that the war headline on every single paper was something to the effect of "Harper loses Cabinet minister - pwned!" (somewhat bizarrely, even the Toronto Sun went with "Revolting", implying a caucus rebellion).  Let's take a moment to observe two things: one, when Joe Comuzzi quit Paul Martin's Cabinet in order to vote against Martin's same-sex marriage legislation, it was not treated by any newspaper as the most important thing that happened on June 28, 2005, to say nothing of ever-in-the-history-of-the-universe - the disparate media treatment between the two Cabinet losses is instructive for those paying attention; two, the papers, in their perhaps bovine assessment of what happened yesterday of importance, have managed to buttress the argument that some of us have been making over the last few days: the resolution itself is almost entirely meaningless, and will have somewhere south of zero impact on any "rights" given to les Quebecois, Quebec or any combination thereof.  The most important thing that happened yesterday was that some Cabinet minister you've never heard of quit so that he could abstain from a vote?  Sounds good to me.

UK Copyright Term Extension?

The BBC is reporting that a British independent review panel is set to recommend that the copyright which performers hold in their recorded performances not be extended from the current term of 50 years.  This is to be distinguished from the copyright which composers hold in their musical compositions, which is currently set at a term equal to the life of the author plus 70 years.

British star Sir Cliff Richards has been leading a campaign to secure an extension of the copyright from 50 to 95 years - his earliest recorded tracks will begin to come out of copyright in 2008, and so he will no longer be entitled to receive royalties on their performance or duplication.  A fact sheet setting out the arguments of the British Phonographic Industry for an extension of the term can be found here [note: link is to .pdf document], which essentially turn on the lack of congruency in the terms of copyright accorded to different participants in the song creation process: the composers (and their heirs) are entitled to royalties for the aforementioned "life + 70" term, while the performers themselves are stuck at 50 years.

Canada only recently introduced a similar concept to that which the British are talking about, as part of the "neighbouring rights" reforms of the 1990s.  The current term for Canadian neighbouring rights protection sits at 50 years.

(hat tip: Michael Geist)

BT Review: Writing for Comics with Peter David

Writing for Comics with Peter David, by Peter David (2006) (Publisher: Impact Books)

Rumour has it that a new high water mark has been hit for Hollywood screenwriters: $4 million for the sequel to The Da Vinci Code.  Peter David repeatedly makes the point in this tome that comic books have increasingly adopted the idiom of motion pictures, so pointing out what the top of the market is in terms of paycheques seems appropriate.  Paycheques also come into play when reading this book, or at least the echo of them does: most of what needs to be said about this book can be gleaned from the fact that the name of the author is about three times the size of the title on the cover.  Impact Books has also published Draw Comics with Dick Giordiano (boasting a much more plausible author-to-title font size ratio), so clearly we're looking at one of a series of books aimed squarely at that segment of the book-buying market desperate to obtain "inside" information on how to break into the comics industry.

Under Arrest - Getting Here (Pt 1)

Hold onto your seats.  This is the first of an occasional series of posts tracing the backstory to one of the primary reasons for me getting back into blogging: the scheduled June 2007 publication of Under Arrest - Canadian Laws You Won't Believe, brought to you by the good folks at Dundurn Press.  Set aside reading time now! Buy lots of copies! Feel the love! Woooo!

The story begins with one condition, two sources of inspiration and some cartoons.  (Since this entire series of posts is an exercise in unrestrained self-adulation, you'll forgive the fact that they may be staggeringly indulgent.)

The condition is compulsive writing.  Always wanted to write.  Can't explain it.  Need to write.  I'm not afflicted by any sort of retrograde Vedder-esque I'm an artist, maaan hang-ups, and thus am completely unconflicted about the notion of making money from writing - but I've also been virtually incapable of actually making money from the endeavor.  Happily, that changed a couple of years ago when I was able to leverage the miniscule attention paid to my blogging efforts into a couple of paid articles.  I said above that we would be dealing with one condition; I'll need to amend that to two conditions.  Editors, like the rest of us, generally prefer to keep aggravations in their environment to a minimum, so once they're relatively satisfied that you can (a) come up with a decent idea on which to hang an article or column and deliver it on deadline, and (b) string sentences together in a fashion which puts you somewhere above the average monkey with a keyboard, you can often count on them to be at least open to hearing about new ideas with which you may come up.  Let's call this the "Fool me once..." condition of the editing universe.

Before I get to the sources of inspiration, we'll need to deal with the cartoons.  You may recall them.  If you need a refresher, this CTV news story and this National Post story should bring you up to speed.  Back in January and February of 2006, Canada's Western Standard newsmagazine decided to publish eight of twelve cartoons which had originally been published in Denmark, and which were argued by some to be offensive to Muslims.  All kinds of brouhaha erupted: Indigo refused to stock the magazine, Air Canada refused to place the issue in their lounges and histrionic crank Mohamed Elmasry of the Canadian Islamic Congress thundered that he was going to seek to lay "hate crimes" charges against the magazine's publishers. 

All of which led me to ponder, Fine, but how can I get some action out of this?

The way the brain works is funny.  Every once in a while, a long-forgotten tidbit of information burbles to the surface, sometimes for no discernible reason, sometimes because relevant circumstances prompt it.  This was one of those times.  You're certainly not taught this in law school, and I can't say that I open the Criminal Code with any regularity during my practice, but at some point during one of those Criminal Law lectures or while passing time searching desperately for anything but what I was supposed to be studying, I came across Section 296 of the Criminal Code - which makes it a crime to publish a "blasphemous libel".  This, I thought, this would make an interesting column.  I'll leave it to you to decide whether that was an accurate assessment [note: link is to .pdf document; also available in .pdf at the articles page].

So I emailed the editor of the National Post and pitched the idea.  He had published some of my stuff previously, the "Fool me once..." condition operated as it should, and he, bless him, fell for it.  The piece was published on February 13, 2006.

[Next time: the sources of inspiration, the (purportedly) on-going series and the sweating begins]

Dreams Die Hard

You can't keep a good man down.

Pam Anderson Files for Divorce from Kid Rock

"Where do you go from here?"

James Bow has posted an interesting article/interview (Part One here, Part Two here) with Canadian author Kenneth Oppel.

Chart Stroll 11.26.06

Sources: Billboard, MTV News, Canoe

US Top 10 (for the sales week ending November 19, 2006)

1. The Game, Doctor's Advocate (debut) (358,000 copies)

2. Akon, Konvicted (debut) (284,000)

3. Now That's What I Call Music! 23 (194,000)

4. Josh Groban, Awake (150,000)

5. Hannah Montana sountrack (114,000)

6. Keith Urban, Love, Pain & the Whole Crazy Thing (103,000)

7. Sugarland, Enjoy the Ride (81,000)

8. Tenacious D, The Pick of Destiny (debut) (81,000)

9. Beyonce, B'Day (68,000)

10. +44, When Your Heart Stops Beating (debut) (66,000)

Other noteworthy debuts: Fat Joe, Me, Myself & I (#14, 60,000); Staind, Singles, 1996-2006 (#41, 27,000)

Comments - You know that hip hop has become the reigning mode of the music-purchasing market segment's cultural expression when two mediocrities like The Game and Akon can hold the top two slots with their debuts.  This is roughly like if Warrant and Faster Pussycat had planted their flags in a slow week in 1988 (for the record, that never happened, because neither band hit ever hit such chart highs (Warrant hit #10 with their debut and #7 with Cherry Pie; the highest Taime Downe and crew managed was #48 with 1989's Wake Me When It's Over) - but they released their albums in the era pre-SoundScan, when the charts were open to more manipulation and less reflective of actual sales).

Sales have started ticking upwards as the Christmas season approaches (a 4.5% increase over last week), but we're still seeing a pretty weak chart when by the time you hit the tenth position you're at less than 70,000 units sold.  It's also interesting to note that a joke band (and I think they'd take that in the best possible way) like Tenacious D can score a higher debut than a band (+44) that is functionally two-thirds of the late Blink-182, one of the biggest selling rock bands of the last decade.  We'll have to see what Jay-Z can pull off when Kingdom Come appears on the next set of charts - if The Game can sell 358,000 copies, you'd have to figure that anything less than 750,000 for Hova would be a disappointment.

Canada Top 10 (for the sales week ending November 23, 2006)

1. Josh Groban, Awake

2. The Game, Doctor's Advocate (debut)

3. MuchDance 2007

4. Akon, Konvicted (debut)

5. Sarah McLachlan, Wintersong

6. Eva Avila, Somewhere Else (debut)

7. Gregory Charles, I Think of You

8. +44, When Your Heart Stops Beating (debut)

9. Big Shiny Tunes 11

10. Keith Urban, Love, Pain & The Whole Crazy Thing

Other noteworthy debuts: Tenacious D, The Pick of Destiny (#31), George Michael, Twenty-Five (#46)

Comments - Josh Groban trumps The Game? Whoda thunk it? Solid Canadian common sense relegates The D to a more rational debut position. George Michael's hits collection debuted at #1 in the UK, and forty-five slots lower in Canada - maybe on this side of the pond people have a better handle on the fact that you can pretty much buy Faith and have just about everything worth hearing out of the guy?

Bonus - Just as an example of how the bottom has fallen out of the singles sales market (i.e., the purchasing of a single on CD), and how, therefore, miniscule sales amounts can result in you ending up on the chart, take a look at last week's Canadian singles sales chart.  Two songs you've never heard by Nine Inch Nails occupy slots 7 and 11, the latter being tied with an Iron Maiden tune.  Ensconced at #8?  "The Sons of Odin", the latest by metal band Manowar (occasional claimant to the title "Loudest Band in the World").

50 Bloggers, 2 Weeks Away, 1 Night Only

We call it a blogstravaganza.  If you're not there, know what they'll call you? Sucka.

On Friday, December 8, 2006 on the second floor of Fiddler's Green (27 Wellesley Street East in downtown Toronto, right across from the Wellesley subway station on the Yonge line), will take place the greatest gathering of the tribes the Toronto blogging community has ever known (... or something like that).  Proudly co-presented with Joey (Accordion Guy) deVilla and Jason Cherniak, we issue a call to all bloggers, blog readers and blog hangers-on to meet for drinks, food and fights - whatever your political stripe, whatever you blog about, come on down and join in the frivolity.  An advance team (mostly consisting of me and Brooks glaring at each other) will be there from 6pm, so feel free to show up any time after that - if past events are any indication, people will start showing up en masse after 8pm.

(Please note that everyone is encouraged to purchase all their food and drink from the bar and server on the second floor - we've reserved the room, and we will need to hit a minimum tab of $500 over the course of the evening, or else I will be chained to a cutting block in the kitchen.)

Money For Nothing, Chicks For Free

A question that sometimes comes up in my practice relates to the kind of royalties that music acts make when their songs get played on the radio.  This isn't exactly apropos of nothing - Jann Arden achieved a pretty remarkable feat in 2005:

Singer Jann Arden was honoured at the 2006 SOCAN songwriting awards after six of her singles reached radio-play milestones. ... Arden wrote and recorded six of the 11 songs that were played at least 100,000 times on domestic radio in 2005. They were Sound of, Sleepless, Wonderdrug, Good Mother, Could I Be Your Girl? and Will You remember Me?

The phrasing of that piece could stand a little clarification (the songs weren't played 100,000 times in 2005 alone, they had been played 100,000 times over the lifetime of their release, and happened to hit the mark in 2005), but the point remains: that's a hell of a lot of times for a song to get played on the radio.  So... roughly how much is that achievement worth to Jann Arden?

"jubilant at the effective nullification"

I always hesitate to point out the obvious, but the various purveyors of histrionics about Stephen Harper's motion to recognize "that the Québécois form a nation within a united Canada" (note, not "Quebec", but the "Quebecois"), would be well-served by recalling that, just after he nearly lost the country in the 1995 referendum, Jean Chretien introduced the following motion in Parliament (that's the best source I can find at the moment):

Whereas the People of Quebec have expressed their desire for recognition of Quebec’s distinct society;

1) the House recognize that Quebec is a distinct society within Canada;

2) The House recognize that Quebec’s distinct society includes its French-speaking majority, unique culture and civil law tradition;

3) the House undertake to be guided by this reality;

4) the House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly.

The motion, on its face far more dangerous and a complete and utter abdication to the separatist demands then extant, resulted in... well, nothing, really.  Which is likely what the current motion will result in.  As you were.

The Slate Review

Good stuff at everyone's favourite online magazine (okay, my favourite online magazine):

• an Explainer on how airlines set their ticket prices
• Howard Dean's future at the DNC
• where lawyers, advertising and sex intersect
• magazine editors evidently believe that the colour green on a cover will result in lower sales
• Timoth Noah admits he wants to read OJ's book

"Judge Trafford called the offences 'serious'"

Another sentencing decision, handed down by a member of the judiciary, that sacred class of divinely-inspired paragons who, pace the Toronto Star and Globe and Mail, you are not allowed to question or criticize.  So we will refrain from so doing.

Lorne Cook, a former UCC teacher, molested a 12-year old and a 13-year old.  Ontario Judge Brian Trafford handed down two one-year "sentences", to be served concurrently, and to be served under house arrest.  The story is an odd one.  Cook fondled the boys while "conducting a mock kidney transplant operation in a classroom".  At this point, let's turn it over to the Star to continue the description:

Cook placed a catheter on the boys after peeling down their underwear. ... The judge said that in one instance Cook pulled back the foreskin of a boy's penis and held the shaft to stabilize the penis while using his other hand to put the catheter on the tip of the penis. In both cases, Cook was alone with the boys when the touching occurred. Neither youngster consented to Cook's actions.

In short, in separate incidents in 1991 and 1993, the man took a child into a classroom, took down the child's underwear, then applied a catheter to the child's penis.  Needless to say, neither child consented.  But it's okay!  In one of the all-time great swerves, according to Cook's defence counsel, he just got "caught up in the moment".

We should also clarify that "house arrest" doesn't really mean "house arrest", in any sense a layperson would understand it.  It means this:

Cook must remain in his residence for the next 30 days, unless to attend church or for medical advice or treatment. Then he must regularly report to a supervisor while he serves out the remainder of his sentence at home.

So, thirty days of what any normal person would understand as "house arrest", then he has to "report to a supervisor".  Now, let's take a look at why Judge Brian Trafford thought 30 days spent at home was an appropriate sentence:

He said Cook, by all other accounts, was an esteemed teacher with no previous complaints against him and is not a threat to public safety. There is little likelihood he would re-offend, partly due to his age, and there were no victim impact statements produced

Notice anything missing?  Any mention of punishing the offender for the crimes committed.  But it's all good - as reported, Jean's wife "broke into a broad smile" when the sentence was read out.  You don't say...

The Day The Music Died

I'm like, f*** critics / you can kiss my whole a**hole

- Jay-Z, "99 Problems"

November 21, 2006 was a sad day for music fans.  It saw the commercial release of Jay-Z's "post-retirement" album Kingdom Come.  And there's just so much wrong with everything in the preceding sentence.  We just about had the perfect career: an artist at the top of his game, millions in pocket, everything worth accomplishing duly checked-off the "to do" list, removing himself from the fray on his own terms, leaving a varied, sometimes-perfect, sometimes cringe-worthy, but ultimately human and exceptional discography.  And then he went and ruined it.  We barely even need to hear Kingdom Come to arrive at that conclusion: unless it was friggin' spectacular, it wouldn't warrant Jay-Z stepping out of "retirement" (sneer quotes entirely warranted because he was almost as prolific with collaborative projects during the period in question as he was during the peak of his solo career).  As with Chuck Klosterman's faux Chinese Democracy review:

There is really only one way for Chinese Democracy to avoid utter and absolute failure: It needs to be the greatest rock album ever made.

Chinese Democracy is not the greatest rock album ever made.

Substitute Kingdom Come, and you've got the situation in which Jay-Z finds himself.

Some of our most high-profile celebrities don't seem to do well with closure or retirement, the latter, in its meaningful sense implying some sort of finality.  Michael Jordan is the poster child (in the bad way) for this - but at least with Jordan there was a never-voiced rationale which seemed to make sense: that Jordan missed the roar of the crowd, the adrenalin rush that accompanied stepping onto the court.  The same can't be said with Jay-Z: he was almost as consistently in the public eye and performing live during his vacation as he had been previously.

It's also an odd choice of format to mark his return.  Hip hop as a form doesn't necessarily lend itself to fully-realized albums (of course there are exceptions - off the top of my head: Ice-T's O.G., Dr. Dre's The Chronic, LL Cool J's Mama Said Knock You Out, any one of Ice Cube's or Eminem's first three albums).  Ever since hip hop seized the pop culture moment, it has been a study in moments: the sample, the turn of phrase, the hook, the song title, the look, the step... at the outside, a hip hop artist can stake a claim on a whole song, but oftentimes that much isn't required.  It's hard to sustain a serious of hold-everything moments over the course of album, and it really doesn't look like Jay has managed to pull it off.  Considered reactions are not, thus far, favourable (see here) or kind (see here - subtitled, on the Slate main page, "Memo to Jay-Z: Please Retire Again").  Fertheluvvagod, there's a Chris Martin collaboration on the bloody thing.

It turns out that a twenty-two year-old (!) LL Cool J had the better of it when he belted out "don't call it a comeback", with one exultation cementing his status - because he hadn't let himself be backed into a corner where people could call it a comeback, and if they dared to, he stepped up to prove them wrong.  Jay-Z seems to have gotten it backwards - among his 99 problems, one is that he's let us down.

IP Developments

A couple of interesting articles in The Lawyers Weekly over the past couple of issues on IP-related issues.

First up, an article by Navin Khanna and Julie Catzman critical of one of the fundamental premises underlying the recent Supreme Court of Canada Robertson decision (judgment available here), which addressed copyright in collective works (the case revolved around articles written for the Globe and Mail by a freelance journalist, which articles were subsequently included in CD-ROMS and online databases without either the permission of or compensation to the author).  There are a number of problems with the majority decision in Robertson, which I'd like to write about in further detail at some point, and the article highlights one of them in this paragraph:

The rights of a publisher in its compilation coexist with the rights of the contributing authors. Authors have the sole right to reproduce their articles. A publisher has the sole right to reproduce its selection or arrangement of the articles. But a publisher does not have the right to reproduce the articles, except as permitted by the authors. Copyright in the compilation should not override an author’s exclusive right to control reproduction of her article, even if it forms a part of the compilation. [emphasis added]

As I said, I think there are a number of concerns with the Robertson reasoning.  I'll be moderating a panel discussion on it tomorrow, and will hopefully have a summary of the discussion written up shortly afterwards.

Dan Burnett wrote a few weeks back about the need to reform Canadian defamation law.  Here's the clincher:

The Americans inherited the same common law of libel from England that Canada did, but American courts concluded that the law had to be reformed to protect free speech. In cases involving matters of public interest, the plaintiffs now bear the onus of proving falsehood, fault and damage, and statements of opinion are immune from liability. ... For those who prefer British and Commonwealth role models, it is noteworthy that in the past dozen years or so, the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada. [emphasis added]

Read the whole thing.

'at's not punk, dis is punk

People say to me "Bob! Where will you be Saturday night?"

I say, here:

Ladies and gentlemen, one night only: The Moods!

(I know it's the Mods.  Trust me, though, that joke is hilarious.  Seriously.)

UPDATE: Further details here.

New Article

I've added a new article to the articles page: "We Know Where You Live - BC Privacy Commissioner Provides Guidance to Producers on How to Collect Residency Information from Cast and Crew" (originally published in Ontario Bar Association Entertainment, Media and Communications Section Newsletter, Vol. 16, No. 2  (November 2006)) - really only of interest to producer's counsel, but there you have it.

UPDATE: Is the text above looking strange to anyone? Multiple font sizes, etc?  If so, please let me know.

"pounding on the door in Pall Mall"

People love their poppies.  Chris Selley weighs in with pertinent questions on the matter, contrasting the approaches of the Canadian and British Legions to the use by third parties of their registered poppy marks.  For previous discussion on this matter, see here.

16 Years Too Late...

... David Peterson finally catches on:

"Guys like me are passé," says David Peterson, the former Ontario premier and honorary national co-chair of Ignatieff's campaign.

Surely you jest...

Passing By 11.19.06

One of the best things about living in downtown Toronto is the opportunity to observe the warp and weft of graffiti, especially the attempts at political relevance.  A few years ago, there was the illiterate who markered every National Post box in sight with "facist" - but he or she seems to have gone back to whatever suburb of disaffection from which they were spawned.  Or perhaps they just morphed into the "Lies" guy, who typically brands Post, Sun and the occasional Globe box thusly (Star boxes mysteriously don't get the same treatment (*cough*)):

But then someone, armed with a letter "F" and clearly counterrevolutionary instincts, made an unholy mockery of that bold statement.

Politics, especially the zealous brand practiced by the "Lies" guy, doesn't generally deal well with humour, so it's the best way to disarm them.  The incidence of "(f)Lies" tagging seems to have dropped off markedly.

Anyways, we're all becoming lazier as technology advances, and it's no different for your local speaking-truth-to-power types, so the most recent development appears to be the use of stencils - mostly painted on sidewalks (there appears to be a preponderance around U of T, go figure).  Of course, this all might be some sort of dada comment on graffiti and propaganda, since this new line of commentary seems to be willfully opaque.  The first one I came across was this:

An image from the widely-circulated and widely-debunked Mohammed al-Dura footage, purportedly showing the killing of a Palestinian child by Israeli soldiers (do a Google search on "al Dura" and you figure out the truth), accompanied by the statement "both sides shoot children".  So - what is the stencil saying?  I mean, it takes a certain amount of political engagement to even recognize the image as being from the low-level war between the Israelis and Palestinians - but assuming the viewer is conversant with the image, is this a denunciation of the Israelis?  Most likely, but why use such a contested image, which would inevitably raise charges of fabrication?  It could also be a knock against the Palestinians - sort of a "you try to say the Israelis are killing your children, but you do the same thing - even going so far as to make it up".  Or something.  Is it a charge of moral equivalency? An argument that the justness of one side's cause is enhanced by the depravity of the other side? Or a claim that the justness of one's side cause is not mitigated by the fact that it shoots children? Are we against shooting children or for it?  Maybe it's no deeper than the surface statement, and we're angry at everybody involved.  Or just angry.

Then there's this one:

A tank, with the ominous "coming soon".  A warning of impending fascism? War? A reference to those hilarious Liberal "Soldiers with Guns. In Our Cities." ads from the 2006 federal election?

This one, though, is my favourite by far:

Not the faintest clue how to read this one.  Is it "stop playing around bush,"? Or "bush, stop playing around"? What's with the paper airplane? Is it meant to be threatening?  Who's afraid of paper airplanes? Or is the paper airplane meant to be a comment on the notion that George W. Bush treats war like some kind of game? Whaaa?  Anyways, yes, Bush, stop playing around, dammit.

Readers are encouraged to forward photos of other interesting graffiti as they see fit.  You send 'em in, I get to decide what to do with 'em, though.

Mad World

So you've got your YouTube.  You've got those who think that Google, recent purchasers of the site, are about to become the target of innumerable lawsuits for all kinds of copyright and trade-mark infringement claims.  There's also those who argue (with considerable merit) that YouTube has nothing to worry about.  Then there's those who aren't suing YouTube, but rather the so yesterday MySpace.  You figure it out.  Without pronouncing on the ins-and-outs of the legal issues involved, let's just say that any website that allows viewers to check out this song and its accompanying video, on demand, deserves to stick around:

You Think You Know, But You Have No Idea

The window had become nearly opaque with the rain pelting against it.

The voice came again from behind me, irritatingly measured.  "So you think there's something missing?  In your life, I mean."

I sighed.  Again.  "I don't think it, I feel it."

There was a pause, as if the speaker was casting his eyes upward in a silent plea for patience.  "Can you describe what it is that you feel is missing?"

"Not really... It's more that I can describe what the missing itself feels like."

A throat-clearing.  "Okay.  Well, why don't you describe it to me..."

The drumming of the rain on the window lessened for a moment, and instead of my reflection, I glimpsed the hillside.  "It feels... like... it feels like Sunday morning.  Sunday morning coming down."

"Like Sund...!? Oh, for f***'s sake, now you're just ripping off old Kris Kristofferson songs.  At least be original."

More rain.  I turned towards the voice.  "You know what?  It doesn't feel like Sunday - it feels like

FRIDAY!

DECEMBER 8th!

at FIDDLER'S GREEN

BLOGSTRAVAGANZA!

Proudly co-presented with Joey (Accordion Guy) deVilla and Jason Cherniak, please join us on Friday, December 8, 2006 at Toronto's Fiddler's Green, 27 Wellesley Street East - right across from Wellesley subway station on the Yonge line (so don't be a dumbass and drink and drive) for the latest blogstravaganza, a gathering of the tribes of bloggers, readers, friends and enemies.  The second floor bar has been reserved for us - so we'll have our own room and our own dedicated server. 

It's all full freight - there's no cover (but donations are appreciated - there's a $50 charge for reserving the space), but we're not providing y'all with anything either: just a gathering place.  Drinks and food are on you.

As in the past, it usually makes sense to start showing up a little after 8 - but there's people who work downtown who will probably be there earlier to grab dinner, so pretty much show up whenever the hell you want.  And if you don't recognize anyone at first - don't leave.  Just ask around, we'll eventually find you.  Last time around, we did a pretty damn good job at packing place, with people from across the political spectrum, along with bloggers who don't have time for politics and cover everything else under the sun - wherever you stand, whatever you blog, read or talk about - come on out.  We need bloggers from the left! the right! the centre! people who hate politics! people who blog about cats! and every! body! in! be! tween!  It'll be good times.

On a personal note, this promises to be one of the most economically punishing blogstravaganzas I've ever attended.  I owe Kathy Shaidle ten bucks for her accurate bet that I would return to blogging before the end of 2006.  I owe Taylor a beer for making essentially the same wager.  Selley is due a pint for my egregious blog sniping.  Since I'm in an expansively generous mood, one more beer is on offer: first person to correctly identify the source for the tagline which makes up the title of this post gets a free pint. See y'all there.

Music Sales

Perhaps inexplicably, Queen's Greatest Hits is apparently the best-selling album in British history.  It's evidently sold approximately 5.4 million copies.  I know the numbers in this post are extremely rough, and don't take account of relative populations through time or different methods of calculating sales, but I think we find something interesting, nonetheless.  Let's say the UK has a current population of roughly 61 million people.  Compare that to the US, whose population is about 300 million, and where the supposedly best-selling album of all time is the Eagles' Their Greatest Hits 1971-1975, with 29 million in sales.  So, if we ignore the fact that a single owner of either album might have purchased multiple copies (upgrading, say, from LP to CD), approximately 9% of the British population owns the biggest album in the land, and about 9.7% of the American population owns the biggest album in that land.  I haven't been able to find a quasi-definitive estimation of the biggest-selling album in Canadian history, but it may be telling that the highest level of certification which the Canadian Recording Industry Assocation offers is 2X Diamond, evidencing 2,000,000 copies sold (well, not sold sold - like the RIAA certifications, these are more of a guesstimate of copies shipped).  The question becomes: is a 10% penetration rate the highest that a popular album can expect to achieve?

Cuban Copyright Case

The vagaries of copyright law are just compounded when you step across international borders, and even moreso when you try to reconcile disparate conceptions of private property (like, say, a rights-based capitalist conception with a nationalizing communist conception):

A U.S. company has lost a six-year legal battle to win the copyright to a collection of Cuban songs that was taken over by the Cuban government.

Peer International Corp. had claimed ownership of 600 tracks, some of which were made famous by the Buena Vista Social Club.

A London high court said Thursday it has rejected Peer's contention that Cuba's Editora Musical de Cuba had claimed copyright unlawfully, but also rejected a claim by EMC for larger royalties for the composers.

More information on the decision is available here.  Must have been a hell of a trial: though Peer is American-based, proceedings evidently had to take place in England and Cuba because of US prohibitions on trading with Cuba - Peer International claimed that it had been prevented from making royalty payments after the 1959 Cuban revolution due to American prohibitions on money transfer to Cuba.  The Cuban state-owned music publisher had transferred their rights to a British-German publisher.  Interestingly, the court did uphold the enforceability of certain contracts, but declined to grant a sweeping declaration that Peer owned copyright in all the songs to which it asserted a right - in other words, it appears that contractual relationships can survive a nationalization.

"Some people may call me crazy, but I really love to play"

When it comes to the new technology that the kids are all excited about, I'm the latest of late adopters - I just got around to acquiring a PlayStation 2 last weekend.  There are, however, advantages to being a bit behind the curve [emphasis added]:

Days of waiting paid off for Sergio Rodriguez, one of the relatively few able to buy Sony's PlayStation 3 when the coveted console went on sale early Friday.

He was among the die-hard gamers and entrepreneurs across the country who braved foul weather and heckling by passers-by all week for the chance to shell out $500 or more for the sleek game machine.

With shortages resulting from production problems, many had camped out for days without knowing if they'd be going home empty-handed. At some stores, the crowds got rowdy and stampeded for the shelves, injuring a man in Wisconsin and forcing authorities to shut down a Wal-Mart store in California.

In Connecticut, two armed thugs who got wise to the PS3's high price and tried to rob a line of people waiting outside a Putnam Wal-Mart store at 3 a.m. One person who refused to give up the money was shot, state police said. In Lexington, Kentucky, four people waiting outside a Best Buy were hit by BB pellets, though none was seriously injured, according to television station WKYT, whose own reporter was hit as she interviewed buyers.

Nice.

"fermented horse urine"

I haven't seen Borat, so I don't really have much to say about it (though from a legal standpoint, see this post on the releases signed by participants in the movie).  But I'm willing to bet this line from a Toronto Star story about Sacha Baron Cohen is at least as funny as anything on-screen [emphasis added]:

"I think part of the movie shows the absurdity of holding any form of racial prejudice, whether it's hatred of African-Americans or of Jews," said Baron Cohen, a devout Jew who keeps kosher and the Sabbath when he can.

"Actual risk to O.J."

OJ Simpson's story and the reactions to it (to his trial, to his acquittal, to his subsequent actions and attitude) speak volumes about morality, legality and race relations in modern America.  This post has nothing to do with those things.  Instead, if you've been wondering about whether OJ could wind up with his can back in the, uh, can, because of his loathsome upcoming Fox "If I Did It" special, Explainer explains all.

Chart Stroll 11.15.06

[Herewith, the inaugural edition of a weekly feature - a quick rundown of the new music charts.]

Sources: The Billboard Top 200 Albums; MTV News

The music industry presents us with a number of mysteries.  Who, f'rinstance, the f*** are all those people who are buying Black Eyed Peas and Fergie albums?  Just as puzzling, who is buying the Now That's What I Call Music! series?  The most recent North American edition (the 23rd) will debut at #1, selling 337,000 copies.  The mystery doesn't arise from the quality of the compilation - chart-topping singles are properly popular.  What's confusing is that, based on what we've been hearing from the music industry, compilations should be dead in the water.  Aren't the post-Napster generations supposed to have been intent on stealing all the music they can get their hands on, leaving record companies and artists crying poor?  And what could be more disposable than a singles compilation?  If the "illegal downloading is killing the music business" thesis were true, nobody should be buying compilations: it would be easier and cheaper to just rip whatever singles you wanted and create your own compilations.  But 337,000 copies is nothing to sneeze at - and with the likes of Fergie, Justin Timberlake and Nickelback making up the track listing, we can be fairly certain it isn't the middle-aged tech-wary consumers who are picking up the latest in the series: it's most likely exactly the industry's target market (pre-teens and teens with disposable income).

Josh Groban pops up at #2 with 270,000 copies - also quite a haul for a guy whose ouevre consists of bellowed pop.  It'll be interesting to see how long he manages to stay in the Top Ten - without a huge hit single, I'm guessing it'll be a one or two week run.  Country pop artists take up slots 3, 4 and 8 (Keith Urban, Sugarland and Carrie Underwood, respectively) - although this may just be a blip in light of last week's Country Music Awards show, it's still worth noting that country can command such a big chunk of the upper reaches of the charts nearly fifteen years after the Garth Brooks-fueled resurgence of the genre.

The Dave Matthews Band, one group whose popularity completely mystifies me (overly precious granola ersatz-rock? er, no thanks...), rings in at #10 with a hits collection - but only manages to sell 65,000 copies.  That's bad both for the band, but also for the industry: if you've slipped below six digits and you're not even out of the Top Ten, things are pretty dire.  Oh, and it's only six or so weeks until Christmas.  Sales will tick up after Thanksgiving as stores fill and higher-profile releases come out, but this shouldn't exactly be a slow sales season - the industry seems to have taken an order of magnitude hit.

Speaking of mystery's, here's another: who was possessed to think that a Ricky Martin Unplugged album was a good idea?  It bows at #38 with 28,000 copies.

Kevin Federline's debut drops out of the Top 200, selling 1,200 copies in its second week, for a total of less than 3,000*.  By way of comparison, William Hung managed to sell around 200,000 copies of his debut...

UPDATE: * Lies! Lies! Apologies all around - I mistranscribed my own notes.  Federline hasn't sold less than 3,000 copies, he's sold less than 8,000 copies (around 6,500 in his first week on sale, plus around 1,200 in his second week).  Granted, my mistyping resulted in a, what, nearly 200% error, but even so, the song remains largely the same...

"productive for the country"

Howard Knopf calls for a Canadian copyright commission to determine the future of our Copyright Act - which is probably a good idea.  The Copyright Act is in desperate need of revision, for a variety of reasons, among the most important of which is that in its current iteration it is completely unwieldy, difficult to navigate for both lawyers and laypersons, and encumbered with terminology and concepts that are decades out of date (if you're ever bored, try to figure out what you can do with those wedding photos you commissioned, or determine who the "author" of a movie is).  I have a lot of time for those, like Knopf and Michael Geist, who are on the front lines of ensuring that attempts to torque or over-extend our current copyright legislation in favour of what I'll call "distributors" (e.g., the larger entertainment conglomerates) at the expense of creators and end-users, but I wish our leading academics on the topic would spend a little less time critiquing the status quo (or the proposed changes of others) and more time constructing: I still have little to no idea what a copyright system that would meet the approval of a Knopf or a Geist would look like (other than that it wouldn't include something like the DMCA).  That's a pity, because in the absence of concrete proposals from some of the leading voices on the topic, what will likely fill the void will be the well-funded arguments of the distributors.

"None of this, of course, is being put forward for purely altruistic reasons"

I'm happy to admit that at around 2:05pm today, I was gamely clicking on garth.ca, eager to see what kind of dirt Garth Turner was going to be dishing.  No pictures of politicians with bewildered-looking goats, no copies of letters threatening excrutiating tortures to be visited on family members for failing to toe the party line.  All a bit disappointing, really.  But I wholeheartedly agree with these sentiments from Kady O'Malley at Maclean's:

... some of the ideas that Turner put forward on making the House of Commons more friendly to independent MPs might actually be worth examining in more detail.

For one thing, he's absolutely correct when he points out that independent MPs are out in the cold when it comes to much of the business of the House. On House committees, for instance, seats are allotted according to how many seats a party has in the House of Commons; no party, no spot on the committee. And in the chamber itself, any independent MP who wants to grill a cabinet minister during Question Period depends on the discretion of the Speaker, who decides whether or not to officially "see" that frantically waving hand in the backest of benches. ...

... He also wants changes made to the electoral process itself, to level the playing field between party candidates and those who want to go it alone. Under current election finance laws, independent candidates aren't allowed to offer tax receipts to campaign donors, putting them at a definite disadvantage when it comes to campaign fundraising; Turner plans to introduce a private members' bill to even things out, and he also plans to seek "expert legal advice" to look into ways to loosen the chokehold that political parties have over the democratic process.

Yep.  I can't begin to imagine what sort of "expert legal advice" he's hoping to receive, but all of the items mentioned in there merit further attention.  The fact that independent candidates can't issue tax receipts is unconscionable.  Mavericks are good - here's hoping he can effect some changes in the system for the better.

"What makes perfect sense in one musical setting, however, sounds terrible in another"

Jody Rosen delves deep (and I mean deep) into the current status of the musical duet.  It's a lot more involved than you might imagine.

Take a look at last week's Top 40: Fully one-quarter of the songs, and three of the Top 5, are duets.

Read it all.  I consider myself a music geek, but even I was surprised at the number of recent duets - though, as he points out, some barely qualify for the title (Beyonce's "Crazy in Love" was not a duet, no matter how many verses Hova had).  Rosen neglects mentioning one of the worst (in the sense of annoying and yet annoyingly catchy) recent duets - Nelly and Tim McGraw's "Over and Over", which on the weekend managed to insinuate itself somewhere into my frontal lobe due to a stray listen while switching stations, and, as a result of the act of creating that link, now probably won't leave for another couple of days...

Passing By 11.14.06

I like to think of libraries as one of the more important threads that make up a community.  It especially helps when, as in Toronto, many of the buildings either have historical significance, or are throughtful, interesting pieces of architecure unto themselves.  Standing guard at the entrance to the Lillian H. Smith library is the above gryphon (also spelled griffin, though I prefer the former); it spends its days staring down .  Across the street is the University of Toronto campus (the real campus, not the Mississauga and Scarborough interlopers), and just down the street is the superlative ein-stein pub, home to the best wings in Toronto that I've ever discovered.  Lillian H. Smith is home to the Merril Collection of Science Fiction, Speculation & Fantasy, one of the best non-internet geek-out experiences available free of charge.  Also the site of a recent reading by James Bow.  Spot the monkey in the picture for extra points.

"did not spare their victims"

A good indication that federal Justice Minister Vic Toews is doing the right thing is that his proposals inevitably send all the right people into blinding conniption fits of rage. Witness his proposal last week to add one more appointee (drawn from law enforcement ranks) to the Judicial Advisory Committees, bringing their total to eight.  This prompted an outcry from the Chief Justice of the Supreme Court, the Canadian Bar Association and, most amusingly, the Globe and Mail, which war-headlined the proposal on its front page and screeched its way through an editorial denouncing the temerity of it all.  Quite how the judiciary became the sacred cow that it has become for large swathes of the semi-official Canadian commentariat remains a mystery, but let it be said that they do not approve of even beginning to question the functioning of the judiciary.

Chris Selley, whose intellectual incisiveness I have nothing but the highest respect for, nonetheless seems to generally share the general view of the Globe and Mail on Vic Toews: that he’s up to something, and that whatever it is, it's bad.

Selley offers a run-down of the most recent contretemps over at Maclean’s, and events have conspired to lay bare the hypocrisy and ill-informed nature of the Globe’s position.  Here is the Globe, as quoted by Selley:

The Globe's editorial was much less conciliatory, calling Toews' proposals "a misguided populism that harks back to the Reform Party roots of the governing Conservatives. It is exactly what Canadians outside the core Conservative constituency feared from the Stephen Harper government: an attempt to change the justice system's colours by challenging the supposed hold of the bleeding-heart, soft-on-crime, gay-rights-supporting, Charter-of-Rights-respecting (and probably café-latte-sipping) judges."

The Globe having found religion on the latter point is rather charming, considering that they weren’t exactly in the frontline of this issue over the past few years, when some of us were bellowing rather loudly that the process for appointing judges is in need of overhaul.  But set that aside for the moment: if they’ve become convinced of the need for an overhaul of the system just because a Conservative (and conservative) justice minister has them shaking, so much the better.

Here’s the funny part: “challenging the supposed hold of the bleeding-heart, soft-on-crime…”.  The entire passage is meant to be read with a sneer – as if, they are saying, there are these “bleeding-heart, soft-on-crime” judges.  But unfortunately there are.  And Toews proposal is an attempt to at least inject one countervailing voice on the panels which assess judges.  Just one voice, mind you – and not even a binding one, since the Minister retains his or her discretion to appoint who he or she sees fit.  But again, set that all aside.  Selley queries the “motives” of Vic Toews in making such an apparently outrageous proposal.  Here’s a hint – maybe he’s hoping to shine one small ray of light onto a judicial culture which enables things like this travesty:

Winnipeg police and justice officials have called the case one of the worst they've ever seen, and it has drawn comparisons to the shocking sex murders of two Ontario schoolgirls by Paul Bernardo and Karla Homolka.

The 25-year-old woman, who was convicted of three counts of sexual assault and forcible confinement, was to be released Tuesday after Justice Gerald Jewers gave her a sentence equal to the two years she spent in pretrial custody.

Her common-law husband, who was convicted of eight charges including kidnapping and sexual assault, was sentenced to seven additional years in prison.

The reporting of stories like this inevitably involve some obfuscation, since the reporters (and their editors) evidently don’t want readers to understand everything.  Set aside the fact that the female perpetrator is only getting two years in jail.  The “seven years” for the male perpetrator isn’t actually “seven years” – at most it will be more like five (perhaps less, since it's unclear the extent to which pre-trial custody is being credited against the sentence), due to statutory release laws which mandate the release of convicted criminals.  Why? Who knows?  But it gets better.

What is it that these people did?

One young victim, a 12-year-old cousin of the woman, testified she was held as a sex slave by the couple for several months, given pills and alcohol and tied to a bed and raped.

The victim, now 14, said she was twice abducted off the street, including one time that involved her being thrown in the trunk of a car.

Another victim, now 20 years old, testified she was 13 when she started going to the couple's house, where she was offered free liquor. The first time, the man raped her while the wife held her down, she said.

Fear kept her going back to the house, every weekend for a year or two, because the man told her he knew Hells Angels members and he would torture and kill her and her family, she said.

Got that?  So, at a minimum, we’re talking multiple rapes, kidnappings, forcible confinements, assaults, death threats.  Let’s turn it over to the Crown prosecutor:

Crown prosecutor Jill Duncan had asked for sentences of up to 18 years for the man and up to eight years for his spouse. … "The extent of the depravity and perverseness of this case is rarely seen."

Again with the obfuscation.  See that “18 years”?  That’s code.  For a prosecutor to ask for an 18 year sentence is… almost unheard of.  We’re talking about the worst of the worst here.  Prosecutors generally won’t even ask for such a lengthy sentence, since they know that judges will almost literally never hand one down.  (Again, we need to put to one side the fact that even this artificial limit of 18 years is a judge-created distortion of the system: the Criminal Code allows for longer sentences for serious crimes, but the judiciary has decided that it is essentially going to “cap” sentences at about 18 years.  Why? Who knows?  And don’t ask, ‘cause you’re not allowed to criticize the judges, remember.)  These crimes must have been ferocious for the Crown to even try for 18 years.

Justice Gerald Jewers handed down his laughably light sentence in light of the foregoing, and in light of this: neither of the criminals showed any remorse, and the man even “aimed a smile towards some of the victims' relatives and rubbed his hands together” as he was being led away.  On what conceivable basis were such sentences handed out?  Well, Jewers was evidently swayed by the fact that the woman “did not have a prior record and the man had only one dated, minor conviction”.  So, maybe on the next set of horrific crimes these two commit we’ll end up with a judge who has an interest in punishing the criminals.

You want a “motive” for why Toews is doing what he’s doing, and why some of us support him so ardently?  Because of cases like this, and the decisions of people like Gerald Jewer.  Perhaps the Globe’s editors can go back to laughing at the supposed bogeyman of bleeding-heart judges – the rest of us will just need to continue hoping we don’t bear the fallout of their actions.

The T-Shirt The Kids Are All About

People sometimes say to me, "Bob, is intellectual property law interesting?"  Well, no one says that to me, but I sometimes get the sense that the question is lurking behind their glazed-over eyes as I fulminate on some IP-related issue.  Anyways, if someone were to pose that question, my response would invariably be something along the lines of "not only is it interesting, it's hilarious".  Bear with me.

You may have heard about the Entertainment Software Ratings Board.  They're the folks who come up with the ratings for videogames which are evidenced those little indicia containing an off-kilter letter inside a black-and-white box, ranging from "eC" (early childhood) to "AO" (Adults Only).  There's an "E" rating, about which more in a moment.  Here's the "Teen" rating, for illustration purposes:

So, what happens?  Some enterprising young folks came up with a slight modification: with a big "E" in the middle, instead of saying "Everyone" at top, it says "Your Mom" - across the bottom, the text has been replaced with "Rated E for Everyone".  Then they put this on a t-shirt.  A sample can be found here.

This, understandably, has caused some consternation over at the ESRB, along with some guffaws elsewhere.  One of those elsewheres is the gaming site kotaku.com, where they posted a picture of the offending t-shirt, which prompted a demand letter from counsel to the Entertainment Software Association, which founded the non-profit ESRB, requesting removal of the image, on the basis that it infringes the ESA's copyright and trade-mark rights.  kotaku.com has declined the request.  The Davis & Company video game law blog has a good primer discussion about the strength of the various claims.

"madcap schemes and daring ruses"

This piece, by Anne Applebaum, offers some reflections on the recent beneficence that the former head of East Germany's foreign intelligence service had passed away.  It's a good reminder of a couple of principles worth bearing in mind - first, that evil always turns in on itself:

And yet, for all his preening, Wolf and his comrades did not win the Cold War. Nor, for all the CIA's ham-handedness, did the agents of communism even win the intelligence war. Invariably, Western agents received their best information not through psychological manipulation and complex schemes, but because Soviet and Eastern European defectors offered themselves up voluntarily. Col. Ryszard Kuklinski, the Polish Warsaw Pact liaison, passed 35,000 pages of mostly Russian documents to the West because he'd seen plans for a Russian invasion of the West, during which Poland would be completely destroyed. Oleg Gordievsky, a KGB officer who worked as a double agent for British intelligence, did so because the 1968 Soviet invasion of Czechoslovakia had gutted his faith in Soviet propaganda.

- second, that what will help win an ideological struggle is, er, well having a better ideology:

Even as he fought on behalf of the Soviet Union and its client states, Wolf—who had spent his boyhood in Stalinist Moscow—knew perfectly well that the West was more just, more affluent, and more humane than his own cramped, repressive society. Most ordinary people knew it, too. As we now debate torture, or domestic spying, or other dubious methods that will allegedly help us defeat radical Islam, it's worth remembering that the West won the Cold War not by matching the nastiness of Markus Wolf—though some certainly tried to do so—but by being, and remaining, a more open society.

Quite.  We have a culture and society of immense resiliency and attractiveness - not because if you packaged it up and presented it to someone they'd say "Hey, what a fantastic, learned culture y'all have - look, Paris Hilton's new album!", but because it's incapable of being compartmentalized like that.  People get itchy to learn more when they grow up in the exurbs of Toronto or Baltimore - imagine how ready to rock you'd be if you came of age in, say, one of the neglected quarters of Nairobi.  Our polyglot culture will out because it's stronger, more adaptable, more sympathetic, more enjoyable, more... well, given some of the theofascist available alternatives, its just better.

BT Review: A Feast for Crows

A Feast for Crows, by George R.R. Martin (2005; paperback 2006) (Publisher: Bantam Dell/Spectra)

It really, truly, deeply, pains me to say this, but if this book is any indication of the future of this series, A Song of Ice and Fire has become Jordanized.  Anyone who has read epic fantasy over the past decade or so hopefully trembles a bit in abject terror at the allusion: Robert Jordan's squandering of the enormous reservoirs of goodwill he had built up by writing what was, until the advent of Martin's series, the leading contender for the modern fantasy masterwork - The Wheel of Time.  WoT (as us nerds call it) was breathtaking in its scope and riveting in the execution... for about the first three or four books.  Then it sprawled into an unholy mess of endless pointless sequels, populated by increasingly annoying characters who accomplished a decreasing amount as the page-to-interesting-reading ratio plummeted precipitously (WoT is tentatively scheduled to shudder to a much-deserved end with Book 12, ferthaluvofgod).  After reading A Feast for Crows, there seems to be a real danger that Martin is treading the same path.

There's no getting beyond the fact that Martin is a grandmaster at this craft.  The attention to evocative detail, the richness of the backstory, the finely drawn characters - all are joys to read.  Each chapter adopts the point of view of one member of the recurring cast of characters, and watching Martin's style shift from chapter to chapter to match the circumstances (intellectual, moral and emotional) of the character is fascinating.  But compared to previous installments, the story-telling itself is turgid beyond belief.  978 pages gets us... well, not much farther ahead than we were before.  Sure, various threads of the plot have advanced some, but not nearly enough given the wordcount.  Entire characters could have been excised from this text without the readers being any worse off: Brienne's story in particular is mostly pointless.  New characters are introduced, and while normally this would be cause for heightened interest among readers as we get to follow one more thread in the tapestry, at this point, for this reader, this is just frustrating: now we have to wait that much longer to get back to characters we care about, and more importantly, to some sort of resolution for the larger story.  (For those keeping track, there's more than fifty pages of appendices which just list the characters and their relations to one another.)

At this point the series reads like it needs a firm editorial hand.  Martin himself describes the book simply as one-half of the volume he actually wrote - the next installment (A Dance With Dragons) will contain the stories of all the characters who were squeezed out of this one due to space constraints.  Martin appears to be projecting three more volumes before the series is concluded, but on the evidence presented by A Feast for Crows, that seems optimistic.  This has become a case of too many characters with not enough compelling story to fill the pages - there's more than enough story here, but I'm not sure there's enough interesting story.  Someone needed to pull back Martin's hand a bit, in terms of both content and style: the gritty rococo which he spins so well has become an end unto itself, serving neither the story nor the reader.  A minor quibble: there's way too much use of the word "fuck" in this book for no apparent reason.  Anyone who knows me can attest to the fact that I liberally sprinkle my speech with swearing, but the omnipresence of the word in this volume (unlike in its predecessors) seems nothing more than laziness (that, or someone took the eye-rollingly lame Detroit Free Press blurb on the back cover ("a fantasy series for hip, smart people, even those who don't read fantasy") a bit too much to heart).

No one can begrudge either Jordan or Martin giving in to the temptation they face: a string of massive bestsellers, a dedicated fanbase, an open-ended world which lends itself to freeform story-telling - it would be tough to draw the strings closed on a money-maker like that.  But if the notion of a story having any sort of integrity in and of itself is to have any meaning, it means that the reins need to be pulled a little tighter and this story needs to be ended sooner rather than later.

Rating: B-

"trying for years to get the religion recognized"

You want fascinating?  I'll give you fascinating.  It seems that some Wiccans in the US are aggrieved (rightfully, frankly), that a Wiccan pentacle is not an approved symbol for military headstones:

The widows of two combat veterans sued the government Monday for not allowing Wiccan symbols on their husbands' military headstones.

The U.S. Department of Veterans Affairs allows military families to choose any of 38 authorized headstone images. The list includes commonly recognized symbols for Christianity, Buddhism, Islam and Judaism, as well as those for smaller religions such as Sufism Reoriented, Eckiankar and the Japanese faith Seicho-No-Ie.

The Wiccan pentacle, a five-pointed star surrounded by a circle, is not on the list, an omission that the widows say is unconstitutional.

The CNN story is a little bit off: you can apparently put whatever you want on a military headstone, but they will only pay for headstones carrying certain pre-approved images - so if the widows in question want to have the Wiccan pentacle on there, they have to shell out for it themselves.

Here is the list of approved symbols, comprised of 38 designs, some of which are, as the article noted, decidedly obscure: they include Eckankar (a religion evidently led by Harold Klemp ("the Mahanta, the Living ECK Master"), the United Moravian Church and the "Humanist Emblem of Spirit".  Best-design-from-a-1940s-pulp-sci-fi-magazine award goes to number 16: "Atheist", with its forlorn "A" trapped in what appears to be a doodle from a high school student's science lab notebook.

IP gurus out there will especially appreciate discontinuous items 97 and 98, the "Christian Scientist (Cross & Crown)" and "Muslim (Islamic 5 Pointed Star)" designs, since the designs are apparently super-secret: only the rather dismal notation "Not shown because of copyrights" marks their place.

All of this is a relatively recent phenomenon: according to this history from the Department of Veterans Affairs, it wasn't until some time between 1930 and 1941 that even a Christian cross was allowed on headstones.  The next addition to the approved list appears to have been the "Buddhist emblem" added in 1951.  It was all, as they say, downhill from there.

"a tough time proving his case"

Another $29 million for Borat, another series of people angry at being duped (some to the point of threatening lawsuits).  It's a basic CYA rule for movie producers that no one should appear on-screen in a motion picture without having signed some sort of consent and release.  What did the various folks appearing in Borat sign?  And will having signed those documents prevent them from successfully bringing a claim?  Helpfully, Slate has a brief Explainer on the topic, along with copies of the releases.

The Ill Sh*t

I was a latecomer to YouTube, but I'm pretty sure I can pinpoint the moment I fell in love: finding footage of Axl Rose and Izzy Stradlin playing "Salt of the Earth", off of Beggars Banquet (the opening salvo in the Stones' grand slam of albums), with the Rolling Stones in 1989.

Maybe there's a cooler musical moment out there, but I can't recall one off-hand.

published stuff

You may notice that at the top of the right-hand column there are links to pages called books and articles.  These are intended as handy collections of links to various things I've managed to sucker people into publishing over the years, and will be updated from time to time as new material becomes available.  You will note that the books link is somewhat painfully lame - consisting of only mention of the "forthcoming" Under Arrest - Canadian Laws You Won't Believe.  The goal is to fill that up with more items.  I swear.

Again with the Poppies

In 2005, Pierre Bourque received a letter from the Royal Canadian Legion asking him to remove the image of a poppy which he had put on his site to commemorate Remembrance Day.  I wrote a piece which was published by The Lawyers Weekly, which outlined the legal basis for the action taken by the Legion - as I explained in a post at the time on Let It Bleed, the Legion really doesn't have much choice in the matter: in order to protect their trade-mark rights in the poppy image, they basically have to protest whenever there is an unauthorized use of the poppy.

This year, the Legion, our cultural heritage and intellectual property rights are intersecting once again, as this story in the Globe and Mail relates, this time with respect to white poppies:

The Royal Canadian Legion is threatening to bring out its big guns — the lawyers — in a war with peace activists over poppies.

Veterans say the activists are unlawfully selling white poppies in a fundraising drive that violates trademark rights to the scarlet poppy, which they say belongs to the Legion.

Already, an Edmonton store owned by Michael Kalmanovitch that has been selling the so-called “poppies for peace” has been shipped proof by the Legion's intellectual property lawyer that the veterans association owns the image, regardless of the flower's colour, and has been asked to stop.

“If he [Kalmanovitch] doesn't, then we will proceed with further legal action,” explained Steven Clark, the Ottawa-based remembrance co-ordinator who oversees the poppy trademark for the Legion.

Oliver Kamm offers some background on the "white poppy" initiative (hat tip: Damian Penny).

Like We Never Even Left

Fine.  So I owe Kathy Shaidle ten bucks.  I'm back to blogging.  For those of you with fond (or... other) memories of the late Let It Bleed, this current iteration of ramblings will be slightly different.  To the extent that the political can ever be stripped out of anything, this blog will be somewhat less about "politics" per se, and more about law, culture, history, photography, interviews, music, writing, movies... just more about more stuff (with an emphasis on the stuff, moreso than the more - I can't promise a posting schedule to match that in the early days of LIB).  Of course, every once in a while I'll feel some unavoidable tug to point out that Haroon Siddiqui is a shmuck, so for fans of LIB, keep an eye out.  For those who otherwise have an ardent desire to know what I think about various items political, well, you should've been around from late 2003 to mid-2005 - you snooze, you lose.

So what have I been doing since May 2005?  Working, mostly.  Reading.  Getting married.  Wrote a book.  Which brings me to one of the other primary motivations in getting back to blogging: as evidenced by the tagline above, I now (or will shortly) have something to sell, so this is as much an exercise in the somewhat loathsome endeavour of self-promotion as anything else.  Plus, I figure it would be helpful to have an online repository of my various published writings, so those will be showing up here as well.  The story of how Under Arrest - Canadian Laws You Won't Believe (scheduled for publication in June 2006 by Dundurn Press) came to be will be the subject of an ongoing series of posts, which will hopefully give some inspiration/guidance to others who are as desperate as me to get published.

Anyone interested in getting in touch with me can send an email by clicking on the link at the top left of the page.  This is still a bit of a work in progress, so the format and the contents on the sidebars will be changing over the next little while as I figure out where to put everything.  Oh, and a blogstravaganza seems appropriate as well - if I can pull it together, expect one before Christmas.  Let's do this.

Books

Under Arrest - Canadian Laws You Won't Believe (Dundurn Press) (August 2007)

Articles

• Legal - Academic

"A Minor Conundrum: Contracting with Minors in Canada for Film and Television Producers" (originally published in 29 Hastings Comm. & Ent. L.J. 45 (2006))

"We Know Where You Live - BC Privacy Commissioner Provides Guidance to Producers on How to Collect Residency Information from Cast and Crew" (originally published in Ontario Bar Association Entertainment, Media and Communications Section Newsletter, Vol. 16, No. 2  (November 2006))

"Poppy trade-mark argument reveals unique amalgam of rights" (originally published in The Lawyers Weekly, vol. 25, no. 37, February 10, 2006)

"The latest thing - blog and legal liability" (originally published in Ontario Bar Association Entertainment, Media and Communications Section Newsletter, Vol. 15, No. 2  (March 2006))

"Moral Rights: Proper Attribution - Dolmage v Erskine" (originally published in Ontario Bar Association Entertainment, Media and Communications Section Newsletter, Vol. 14, No. 1 (October 2004))

"I've Got This Great Idea for a Show..." - Copyright Protection for Television Show and Motion Picture Concepts and Propsals (originally published in 17 Intellectual Property Journal 189 (2004))

• Legal - General

"The Free Speech Myth" (originally published Wednesday, January 30, 2008, National Post, page A16)

“Film industry suffers impact of Canada’s cultural concerns” (co-written with Ken Dhaliwal), The Lawyer’s Weekly, October 12, 2007 page 15

"Lurching Towards Sensible Laws" (originally published Saturday, March 17, 2007, Ottawa Citizen, page B7)

lex cetera, five-part series published in National Post (1: Crime Comics, Wednesday, July 5, 2006; 2: Duelling, Thursday, July 6, 2006, page A14; 3: Crimes Against the State, Friday, July 7, 2006, page A12; 4: Errata, Tuesday, July 11, 2006, page A12; 5: Intellectual Property, Wednesday, July 12, 2006, page A10)

"Blasphemy - And Other High Crimes" (originally published Monday, February 13, 2006, National Post, page A15)

• Politics

"Five Principles for Conservative Victory" (originally published in an edited form in Canadian Conservative Review, Vol. 3, No. 3, Summer 2005, p. 6)

“Blaming Him Solves Nothing” (originally published Thursday, May 26, 2005, National Post, page A20)