bob tarantino

On the Radio 01.31.07

Rob Breakenridge has graciously invited me to appear on his radio show, The World Tonight, on Calgary's CHQR 770AM (there is a "Listen Live" option at the link).  I'll be on at around 9:35pm (EST) / 7:35pm (CST).  We'll be talking about some of the copyright/IP stories that have been discussed here recently: possible copyright infringement in Conservative television ads; trade-mark issues at The Court.ca; as well as other news stories, such as Hollywood's contention that Canada is a hub for movie pirates (er, not the Johnny Depp kind).

"would've said no"

And so the worlds collide.

Conservative attack ads fired at Liberal Leader Stephane Dion may end up sideswiping the ruling party after questions were raised about possible breach of copyright laws.

Indeed.  The three ads (which can be seen here) each appear to use footage from the Liberal leadership debates which took place last year.  According to the Star story, "that footage belongs to a consortium of TV networks which pooled their resources to provide live coverage of the debates" (presumably the copyright of the networks arises under section 21 of the Copyright Act (Canada)).  It would appear then that, prima facie, the Conservative ads infringe copyright in the footage (should somebody be entitled to copyright protection just because they plopped a camera in front of some people and pressed "record"? from such questions are law schools essays spawned).

The Conservative response related in the report indicates that the party is, at this point, refusing to say how they obtained the clips.  It's raised as a possibility that a Conservative member filmed the debate(s) him or herself from the audience - unlikely, though, since the cameraperson managed to score a killer angle for most of the shots and kept an awfully steady hand while doing so.  It's also possible that the party obtained the footage from the "marketing or archival" unit of one of the networks involved - if that's the case, the question of infringement will be a function of whatever license was obtained in respect of the footage.

But as with so many things these days, this is an opportunity to reflect on a larger issue: should there even be a possibility of infringement in situations like this?  In Canada, as mentioned above, this appears to be a case of prima facie infringement.  American readers are likely thinking "this is a clear fair use example" - except that, as Canadians are wont to forget, we don't have the benefit of a broad and flexible "fair use" doctrine in Canada.  Instead, we are yoked with a limited, desiccated "fair dealing" concept.  The Copyright Act enumerates certain exceptions to infringement - and if you can't fit yourself into one of them, you've infringed copyright. 

As Michael Geist, who is quoted in the Star article, notes, there is a remote possibility that the use of the footage could fall under one of the "fair dealing" exceptions to infringement outlined in section 29.1 of the Copyright Act (Canada):

Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

That would be a hell of an argument to make.  First, there does not appear to be any attribution in the Conservative ads to the owner of the footage, so the obligation to identify the source has not been met.  More fundamentally, however, is the matter of whether this is properly a case of "criticism".  If so, I think it would represent a novel expansion of the "criticism" concept.  Generally, the criticism has been understood to allow a reproduction in order to enable criticism of the work being reproduced - so, for example, if you're discussing a painting, you should be able to reproduce the painting in the context of your article/essay/whatever, in order to enable the readers to appreciate what it is you're discussing.  But in the case of the Conservative ads, they aren't engaged in a criticism of the work which is protected by copyright (i.e., the recorded footage itself), they're engaged in a criticism of a subsidiary element which is itself embodied therein (this "subsidiary element", i.e., the "performance" of Dion and Ignatieff is unlikely itself to be the subject of copyright protection, but I'm open to arguments to the contrary, which if correct would make the hypothetical Conservative position even more tenuous). 

Assuming the Conservatives could clear the (high, in my opinion) hurdle that their use in fact constitutes "criticism", question of whether the "dealing" is "fair" would need to be addressed.  Per the Supreme Court of Canada's decision in the CCH case, they would then need to satisfy the following tests (see para. 53 of the decision):

(1) the purpose of the dealing;

(2) the character of the dealing;

(3) the amount of the dealing;

(4) alternatives to the dealing;

(5) the nature of the work; and

(6) the effect of the dealing on the work.

Item (1) is really just a reiteration of the question of whether what they are doing constitutes "criticism".  Items (3) through (6) would likely favour the hypothetical Conservative argument (being, respectively, minimal, none (or limited), largely irrelevant and none).  Item (2), however, could, in tandem with item (1), be fatal to the argument, since the Supreme Court expressly mentioned that "multiple copies of works ... being widely distributed" will "tend to be unfair"; it's an open question whether such an analysis merits application in a digital/broadcast context, but, again on it's face, it doesn't look good for the Conservatives.

Assuming you haven't started bleeding out the eyes from boredom at the foregoing, I'll leave the final word to Michael Geist, who I think get the salient issue exactly right:

"Frankly, it should be beyond doubt that they should be able to use short clips of these kinds of public political events that should fall under a fair use doctrine. I think it's unfortunate that under Canadian copyright law there is some level of uncertainty."

"shall we say subtle"

If you haven't scrolled all the way down lately to the "blawgers" list on the right-hand side, you may have missed a recent addition which is worth highlighting: The Court, a blog published by Osgoode Hall Law School which is the leading source for news, analysis and discussion of all things related to the Supreme Court of Canada.  Check it out.

In addition to its general awesomeness, I wanted to draw attention to a recent trade-mark issue that The Court encountered.  Copyright concerns generally attract all the howls of outrage: over the last decade or so, it's been the always-juicy targets of record companies and movie studios that have mobilized their resources in various ways both advised and ill-advised, resulting in all sorts of headlines and sometimes vitriolic discussion.  But trade-marks, their uses and abuses, should attract just as much scrutiny.  What happened to The Court should help illustrate why.

To summarize: up until January 22 (or thereabouts), the banner at the top of The Court's page was graced with a stylized (and really rather striking) rendition of the building which houses the Supreme Court of Canada (a picture of the building can be found here).  This was evidently a problem - it's a bit unclear from The Court's account, but either someone contacted The Court on behalf of the real Court with a takedown message, or someone at The Court realized they might be infringing on a trade-mark of the Supreme Court - so, the attractive drawing of the Supreme Court of Canada building was duly replaced with a somewhat less attractive drawing of a Doric-ish column.

You read that correctly.  The Supreme Court of Canada has four trade-marks, which are referred to as "official marks".  Pursuant to section 9(1)(n)(iii) of the Trade-marks Act (Canada),

No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, ... any badge, crest, emblem or mark ... adopted and used by any public authority, in Canada as an official mark for wares or services

Three of the Supreme Court's trade-marks consist of images of the Supreme Court of Canada building.  Somebody, either representing the Supreme Court or in fear of those representing the Supreme Court, decided that the image which was previously on display at The Court was disturbingly similar to the images of the building for which the Supreme Court itself has sought registration, and so removed the image from the website.

Without putting too fine a gloss on the matter, this is ridiculous.

Setting aside for the moment whether The Court was correct in its anxiety (there's likely a pretty strong argument that the website's use of the image did not fall afoul of section 9 because The Court blog lacks the requisite indicia for the image to have been adopted "in connection with a business"), we should query whether the Supreme Court of Canada, as a government institution, should even be permitted to claim exclusive rights to the image of a building which, if anything, is part of the collective heritage of Canadians.  I had tried to make a similar point, with slightly less clarity, in talking about the various skirmishes which have arisen over the last couple of years in connection with the image of the poppy. 

The number of Canadians (hell, the number of Canadian lawyers) who could correctly identify the building which occupies 301 Wellington Street in Ottawa is miniscule, but even that shouldn't impact on the broader point: absent an attempt to pass off a business venture as being affiliated with or endorsed by a government entity, there should not be a circumstance where the government is entitled to dictate the use of images, especially of buildings, which are government property.  Imagine, if you will, that someone wanted to protest the Conservative government and elected to use a stylized rendition of the Parliament buildings to convey their message.  I don't even want to do a search to find out what kinds of restrictions there are on such a speculative use.  But when a endeavour like The Court, whose sole purpose is educational and informative, is even potentially falling afoul of trade-mark restrictions, we've got an issue which needs attention.

"maintain the status quo"

The lowest point for the entrenched interests of the Canadian legal profession over the last twelve months occurred when former Minister of Justice Vic Toews' mused about adding a police representative to the judicial advisory committees which advise on the selection of new judges.  The entire organized bar, from the Chief Justice through the various presidents of the bar associations, let out a collective shriek, helpfully demonstrating that (a) they will stand for no attempts to modify the existing privileges of the profession, and (b) they seem to really hate cops.  Ezra Levant says most of what needs to be said in this piece, published in Canadian Lawyer magazine.  As Ezra rather viciously points out, "Do you think the [Canadian Judicial Council] would have objected had Toews proposed a representative from the John Howard Society?".  Indeed.

"new manifestos"

Slate answers the burning question: who owns the Unabomber's writings?

Federal prisoner Theodore Kaczynski, also known as the "Unabomber," is suing to keep the government from auctioning off his personal papers to raise money for his victims. Kaczynski wants to donate the manuscripts to the University of Michigan instead. Doesn't the Unabomber have control of his own writings?

... Does the government get the copyright when it seizes a prisoner's personal writings? Some legal scholars think it does, although Kaczynski is arguing otherwise. Even if the feds couldn't transfer the copyright on Kaczynski's writings, they'd probably be able to sell them. That's because they're not trying to reproduce them; instead, they're selling the papers as physical objects, along with other items he owned.

I think that's probably the analysis which would obtain in Canada as well.  Although it's not precisely the same situation, it's worth noting that there are no "Son of Sam" laws in effect in Canada.**  The most recent attempt to pass such legislation (which would have had the effect of transferring a convicted criminal's copyright in their writings to the Crown) was, apparently, in 1998, when Liberal MP Tom Wappel tried to get a private member's bill passed - the proposed legislation was rejected by a Senate committee, after having passed third reading in the House.  This short piece sets out some of the arguments against a "Son of Sam" law.  It appears that a number of US states have "Son of Sam" legislation in force, although the constitutionality of such statutes remains controversial.

UPDATE: ** Wrong, wrong, wrong.  See here for details.

there's a feeling I get when I look to the west

It's the feeling that I'm looking in the wrong direction - because Damian Penny will be coming to Toronto from the east.  Be sure to join a bunch of raging bloggers on Saturday, February 18 17th, starting at 8pm on the second floor of The Fiddler's Green, located at 27 Wellesley Street East in downtown Toronto, just east of Yonge and across from the Wellesley subway station.  All are invited and welcome - bloggers, readers, player-haters and hangers-on.

UPDATE: As Jason helpfully points out in the comments, it's Saturday, February 17th.  The 18th is a Sunday, and Sunday will be used for recovery.

"you can't quantify that"

The Chief Justice of the Supreme Court of Canada, to her immense credit, has made a habit lately of reminding the legal profession that it is rapidly pricing itself out of the market for ordinary Canadians.  The justice system, whether civil or criminal, but especially civil, is becoming the domain of the wealthy and the indigent - the "average" Canadian usually can't afford to retain counsel (or can only do so at great personal economic disadvantage) to assist in either enforcing their rights or settling disputes.  A stark example is offered today, buried in the news of the impending announcement of Maher Arar's compensation from the Canadian government:

The package includes personal compensation of more than $10 million, a $2-million payment for Arar's legal fees, and an official apology, CTV's Ottawa Bureau Chief Robert Fife reports.

Think about that for a moment.  Your (Liberal, for those in the habit of forgetting) government gets you arrested, deported and tortured, and in order to pursue your claim against them, you're forced to ring up two million dollars in legal fees.  That's... lunacy.  (If memory serves, Brian Mulroney faced a similar legal tab when the (Liberal) government dragged its heels on apologizing to him.)  The ultimate danger is that people, unable to access the courts, resort to other mans of resolving  their disputes.

A Credit to the Profession

Good on them:

A lawyer for the virtual world "Second Life" has responded to a parody with something that's quite different from the usual corporate cease-and-desist letter.

... "Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody," Yoon wrote. "Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception."

The Music Post

Do the kids still play guitar?  In any event, here's a pretty cool post which lists the twenty greatest guitar solos ever, with accompanying YouTube video.

Which got me to thinking...  a couple of weeks back, Michael Geist provided a link to this information-rich report on the state of the Canadian music market in 2006.  For someone like me, who's a music chart junkie, that report is just south of freebasing (for example, did you know that the third-best selling album in Canada in the SoundScan era (i.e., from 1995 to the end of 2006), was Big Shiny Tunes 2 with 1,232,738 copies sold?  Or that the biggest-selling artist in Canada in 2006 was Johnny Cash?)

Some of the information is a bit difficult to parse (for example, I'm having trouble making sense of the various breakdowns in the "album sales" category - what's the difference between "Total Album Sales" and "Overall Album Sales"?  And why are the numbers different?), but otherwise it's a goldmine.  Geist and Knopf highlighted the fact that "Overall Music Sales" were up nearly 10%, driven largely by a 122% increase in digital track and digital album sales, but by nearly every other measure, the industry saw a decline (even the phenomenal growth in digital sales needs to be set against the fact that the base they started from is miniscule - while a little over a million "digital albums" were sold, more than 45 million physical albums were sold).

I'm pretty agnostic about the future of major record labels.  I'm also a big believer that just because an industry previously saw phenomenal growth and sales doesn't mean it's a bad thing that said industry is now creaking forward.  One of the most interesting aspects of the splintering of the music industry is the cultural fallout: there are fewer and fewer monster hits which everyone knows or (especially) owns.  As one indicator, note the fact that, since Christmas, it has taken the sale of fewer than 100,000 copies to reach number one on the Billboard US album charts (the current No. 1, by Daughtry, sold around 65,000 copies - a pitiful number) - the last time that happened was apparently in 1991, in the midst of a recession which, if memory serves, had the record industry moaning about its dire straits.

Another indicia is the paucity of "Diamond" awards given out by the RIAA for recent albums.  The Diamond certification level marks sales in excess of ten million copies - so, generally speaking, these are the really big monster hits - your Thriller, Rumours, Hotel California, Cracked Rear View, etc.  A quick spin through the list of Diamond certifications (current to July 31, 2006), reveals that of 100 albums which have received the RIAA's Diamond certification, the following decades account for the following number of slots:

1960s - 4

1970s - 24

1980s - 24

1990s - 41

2000s- 7

Nearly seven years into the decade, and only seven albums have hit that level of cultural saturation (well, really only 6 - OutKast's Speakerboxxx / The Love Below is certified at 11 million copies shipped, but it's a double-album, which, on the RIAA's idiosyncratic accounting, counts double, so it's only shipped 5.5 million copies).  It's worth noting that while albums from the 1960s and 1970s had decades in which to reach the 10 million mark, a huge number of albums from the 1990s have done so - but with the turn of the millennium, the number of albums and acts capable of pulling off that feat has declined precipitously.

"he remained silent"

Somebody, somewhere, should do some kind of study into the phenomenon that the Canadian judiciary, while evidently congenitally incapable of handing down tough sentences, apparently genuinely believe that when they reward convicted criminals with a kiss, they are somehow bringing down the full primordial fury of the law:

Justice Mossip told the court that a penitentiary sentence was necessary to send a strong message to the community that you will "pay a severe penalty"...

Oooo, a "severe penalty".  But a "severe penalty" for what?  Well, a few years ago Daniel Rouleau decided to drink his day away and then drive home.  On the way, he killed a 72-year old pedestrian, who was returning from his evening volunteering at a local bingo hall.

So, what was the "severe penalty" handed down by Justice Nancy Mossip?  Three years.  Which means, with statutory release, that Rouleau will, at the absolute maximum, spend two years behind bars.  Of course, Rouleau had already been previously convicted of impaired driving.

As Daniel Rouleau, 55, was led from the courtroom to begin serving his penitentiary sentence ... [he] turned and smirked at several family members, including Landry's daughter, Marie Wallis.

You don't say...

"primarily to serve the elites"

I hesitate to link to this, because I think people might actually die laughing while reading it.  Kathy, I'm looking at you.  (Hat tip: Cosh)

Under Arrest - Getting Here (Pt 2)

So, where was I... Part 1 of Getting Here, an occasional series chronicling how the book Under Arrest - Canadian Laws You Won't Believe (scheduled for publication in June 2007), can be found here.  We left off the (no doubt thrilling) tale at the point just after the National Post published the column which formed the kernel of the eventual book: some musings on the fact that it is still technically a crime in Canada to publish blasphemous material [note: link is to .pdf document].

A few weeks after that column was printed, while walking through Toronto's Kensington Market, I came across the next building block in the process of writing the book: a used book being sold off a blanket on the sidewalk.

The Contingent Prime Minister

Just after Stephen Harper's Conservatives scored a marginal win in the 2005 federal election, I queried whether Harper would be Joe Clark or John Diefenbaker - would he, to simplify and exaggerate, guide his minority to an early ignominious end leaving the stage as a political footnote, or leverage his fragile government into one of the largest electoral majorities in Canadian history?  We still have no real way of knowing whether the Harper government is simply a Conservative interregnum or something more, but I think part of the difficulty in answering the question is that it is entirely an entirely mechanistic one.

The question concerns itself with the process of electoral results, but not the substance (or lack thereof) which impels them.  Which isn't to say it isn't a question worth asking - but it's an entirely separate question from whether Harper is or will be a good conservative prime minister on a substantive analysis, in the sense of having implemented conservative policies or effected a conservative torquing of the Canadian body politic.  But while the Clark/Diefenbaker question is separate, it is also primary, in the sense that it must be answered before the second question can properly be posed.

Andrew Coyne's latest column touches on the apparent malleability of Stephen Harper's politics:

For there isn't much left of conservatism nowadays, is there? Spending? The Finance minister's fall economic statement projects spending to rise to levels never approached by any Liberal government, and yes, that's after allowing for inflation and population growth. Taxes? The party that once campaigned on a flat tax, then on broad-based tax cuts, now sprays special-interest tax credits hither and yon, such as that for children's sports. (Which sports? Teams of experts have been retained to advise whether the kids are sweating enough to qualify.)

Corporate welfare? Once upon a time conservatives wanted to abolish subsidies to business. No longer. Agricultural quotas? No danger of any reform there. Privatization? Don't make me laugh. Much of this dilution took place in advance of the last election, notably at the party's triumphant founding policy convention in 2005. But the process has only accelerated post-election, in pursuit of the coveted majority.

The more the party has chased the middle, however, the faster it has seemed to recede; with each abandonment of its principles, the opposition and the media, those arbiters of the status quo, simply yawn and move the goalposts a little further down the field. [emphasis added]

I think the emphasized phrase is really the beating heart of the entire matter: absent a majority, we can't fairly ask the question of whether these Conservatives are sufficiently philosophically conservative.  It can't be emphasized enough that Harper is swimming against two tides: the entrenched hostility of the media and the fact that his party has no natural allies in Parliament.  A Liberal minority would have a much less difficult time cobbling together sufficient votes among Dippers and Blocheads (can we use that term now?) to pass legislation, since their broad policy and philosophical leanings are at least broadly in concert - it requires some deft maneuvering for a Conservative government to accomplish the same thing. 

Take a simple example: last year the Tories proposed legislation which would have ended the possibility of house arrest "sentences" for violent criminals.  The pro-crime elements of the Liberals, Bloc and NDP watered the proposal down so much that it essentially accomplished nothing.  Think about that: a fundamentally conservative proposal, one which would presumably have overwhelmingly broad support among the public (I mean, what voters, other than Liberal/Bloc/NDP MPs, would vote against a proposal that is trying to punish violent criminals?), and yet it couldn't make it through a divided legislature.  When such a basic, putatively uncontroversial policy can't get enacted, it's a bit much to ask the Conservatives to start effecting wholesale structural changes.

What kind of conservative is Stephen Harper?  What kind of conservatives are the federal Conservatives?  We can't really know.  That a Conservative minority isn't much different from what a Liberal one would look like is almost entirely a function of the structural impediments it faces (which, to reiterate, would be structural facilitators to a Liberal minority).  Small-c conservatives will need to countenance an awful lot of non-conservative politicking (see Coyne's column for more examples) in order to effect the gamble that a Conservative majority would be fundamentally different from a Liberal one.

BT Review: The Way It Works

The Way It Works - Inside Ottawa, by Eddie Goldenberg (2006) (Publisher: Douglas Gibson Books - McClelland & Stewart)

At some point, I will recover the discipline necessary to sit down and get started on another book (fiction, in case anyone cares).  In the meantime, however, I'm content to satisfy myself with finishing the greatest videogame, like, ever (Splinter Cell) and getting through various books I've been meaning to read.  One of which was The Way It Works, by Jean Chretien's senior policy adviser, Eddie Goldenberg.  The experience wasn't quite what I was hoping it would be.

"CBC News has learned"

As Staples pointed out today, it's an interesting late-breaking trend in reporting that news about the Conservative government must be accompanied by a comparison to the Liberals (usually in the latter's favour).  His example is more egregious, but this CBC story about tomorrow's environmental announcement(s) caught my eye for another reason:

And all are very similar to Liberal proposals in their so-called Green Budget of 2005. [emphasis added]

Now, while I still pay my share of attention to politics, I paid a lot more back in 2005.  And I can safely say that I never heard the Liberal budget of 2005 being referred to as the "Green Budget".  Not once.  Ever.  That is until seeing said CBC piece, wherein the reference to the possibly apocryphal "Green Budget" is made twice, including in the subtitle (or whatever you call it in a news article).  There's a Green Budget Coalition, but that has nothing to do with the Liberals or their 2005 budget.  A Google search on liberal + "green budget" + 2005 doesn't seem to turn up much of relevance.  So, I throw it to the legions of fervent readers: is the notion of a Liberal "Green Budget" in 2005 a smidge of the CBC revisionism?  Or has my memory gone all wonky?

"shave your head, get you drunk, and embarrass you"

For my money (get it? it's all free!) Andrew Potter is one of the most interesting thinkers out there, and, since blogging is a medium suited to the brief but incisive missive, he has one of the best blogs.  He's awfully good at longer-form writing as well: check out this piece from the Ottawa Citizen (which, now that I think about it, has one of the best Op-Ed pages among Canadian newspapers), about sports initiation ceremonies.  Like the best columns, it goes places you really don't expect.

If there is one thing that is sure to get lost in all of this, it is the substantial virtues of initiation ceremonies. One of the most legitimate beefs against liberal democratic culture is that it leaves little room for the heroic dimension of life. The old "warrior ethic" ideals, of the honour that comes with competition, battle, and even death have almost completely atrophied, and while SUVs and iPods and flat-screen TVs give us plenty to live for, we no longer have a collective sense of what would be worth dying for.

Philosophers over the years have used different terms to describe this ethic. Plato called it thumos, usually translated as "spiritedness" or "passion." Hobbes called it pride, Rousseau talked of amour-propre, and Hegel described it as part of our desire for recognition. These are all ways of getting at the same phenomenon, namely, the desire to compete, to assert oneself over and against others.

"an intriguing challenge"

Jeff Jedras has an interesting post about the positioning we're seeing on the environment:

Two interesting stories this morning seem to be setting up an interesting potential political opportunity for Steve: His Sister Souljah moment. ...

Using this desired five times production increase as an impetus (and Natural Resources Canada participated, so he knew it was coming) Harper has the opportunity to say this forces me to bring in tough measures to minimize the resulting environmental impact. If Baird's musings are any indication, he is prepared to give the oil industry some tough medicine. And with Harper's rumoured equalization plans he's already shown he's willing to trade Western votes for support elsewhere.

And by showing the rest of the country he's willing to stand up to his Alberta base, and on the environment no less, he will have established his centrist credentials in the minds of voters, not to mention taking the Green issue away from the opposition. [emphasis added]

Probably exactly what is needed to break into majority territory in the polls.  And the majority of voters, who don't pay all that much attention to politics outside of elections, will recognize the animating principle: even if a good policy is entered into for cynical reasons, it's still a good policy.  The trick, of course, is getting the "good policy" bit correct.

"society would be 'revengeful' if he couldn't get out"

It is worth occasionally reminding people of just how wonderful the Canadian criminal justice system truly is.  First-degree murder is the most serious crime (barring certain treason-related offences) of which one can be convicted under the Canadian Criminal Code.  A conviction results in an automatic sentence of "life", "without the possibility" of parole for a period of twenty-five years.  The sneer quotes are intentional: almost nobody spends the rest of their life in jail, and the "faint hope" clause (currently section 745.6 of the Code) means that after only fifteen years, a murderer is entitled to apply for a reduction of parole ineligibility (i.e., instead of only being eligible for parole after twenty-five years, they can be released after some shorter period).  As stated in this Department of Justice report [link is to .pdf; see page 3 of the report], 81.6% of applicants are granted a reduction in parole eligibility.  At the time of the report, of that 81.6%, 63% had been released (i.e., the reduction in the number of years of parole eligibility lowered the number of years they had to serve below the number of years they had actually served).

You'd think that first-degree murder would entail a pretty harsh set of circumstances.  The typical scenario which many people have in their heads is the circumstances of, say, Paul Bernardo: locked in a cell twenty-three of twenty-four hours a day in maximum security.  As Dan Gardner, an Ottawa Citizen columnist who writes frequently about the justice system argues,

It's simply not true that the criminal justice system is one big marshmallow: In most cases today, serious criminals are seriously punished.

Uh-huh. 

Let's take the case of Kuldip Singh Samra.  Samra was convicted of two counts of first-degree murder, and one count of attempted murder (the third victim was left paralyzed).  Samra then fled the country and had to be extradited back to face Canadian "justice".  So, how does the Toronto Star (not a paper known for taking any kind of hard line on punishing criminals) describe the conditions of Samra's incarceration?

For nearly seven years, Kuldip Singh Samra has been playing chess, baking cookies, preparing his own meals in his residential-style unit, working in his vegetable garden, taking courses in sociology and jogging on a private track at the minimum security facility that isn't surrounded by a high wall or a barbed-wire fence. Ferndale Institution also boasts a tennis court and weight room.

Gosh, that sounds just awful.  Even Samra isn't complaining, describing his time in "prison" as "the most peaceful" time of his life.  I guess, however, that the chess-playing, cookie-baking, gardening life just ain't for Samra - he's applying for early release.  Two murdered, one left paralyzed - and one joke of a justice system.

The Annual Pilgrimage to the Centre of the Universe

Sometimes bloggers don't need even the vaguest excuse to get together for drinks.  Other times, one presents itself:

Damian Penny, a guy whose blog is so huge it takes five contributors just to run the damn thing, is coming to town!

Saturday, February 17th, will see a motley collection of bloggers, blog-readers, blog-haters, blog-reader-haters and assorted hangers-on assemble on the second floor of The Fiddler's Green, located at 27 Wellesley Street East in downtown Toronto, just east of Yonge and across from the Wellesley subway station.  Tell your friends.  Maybe even show up yourself, if you're so inclined...

UPDATE: 8pm is the time.  8pm.  Forgot to mention that.  8.

"a hard time getting worked up"

So, the other day, Cory Doctorow wrote this post at boingboing about copyright in Canada, which prompted this piece at Maclean's.  A little hyperbole never killed anyone, but here are the relevant portions of Doctorow's take:

Canada's about to have a copyright disaster

... Bev Oda (the Canadian Tory Heritage Minister who funded her campaign with money from the big entertainment, software and pharma companies) is poised to bring down new copyright legislation that will plunge Canada into the dark ages, outdoing the USA for sheer boneheaded lunacy.  ... Record companies like Sony, Warner and Universal are terrorizing the world by suing hundreds of music lovers every month. ...

I mean, I guess.  But take some time to look through the boingboing post, and then through the Maclean's piece, and you'll notice something: not the faintest whisper of what proposed amendments to the Copyright Act will actually say.  Because nobody knows (well, somebody knows, I'm sure, but it isn't public knowledge).  The proposed amendments haven't been tabled, and there isn't even any solid evidence (like, say, an announcement by the government) that they will be tabled any time soon.  These are important issues, but fear-mongering in the face of next to no evidence doesn't strike me as being terribly helpful to anyone involved.

On a related note, Heritage Minister Bev Oda will be speaking on Monday to the OBA's Entertainment, Media and Communications Section (of which I am, bashfully, Vice-Chair).  Anyone who is interested is encouraged to register and attend, but we're close to being sold out.  I'll be sure to let y'all know if the Minister says anything bearing on the timing of the copyright reform legislation.

"others dispute such analyses"

On either side of the 49th, very different parties appear to be coming to somewhat similar conclusions:

The [Democrat-controlled] House of Representatives is poised Thursday to play Robin Hood with energy policy.

It aims to cut $14 billion in federal oil and gas tax breaks and other benefits over the next 10 years and give them instead to renewable-energy programs.

... Such a change would represent a noticeable trim in government support for the oil and gas industry at a time when it is trying to boost domestic production. It would provide a huge boost to renewable energy industries as they try to replace fossil fuels with cleaner energy that's also domestically produced.

Meanwhile, up north (hat tip - Staples):

Environment Minister John Baird questioned the wisdom of tax incentives introduced in the 1990s to boost production in Alberta's oilsands, and hinted yesterday the Conservative government might have more to say on the issue when it tables its spring budget.

... As he announced a $230-million investment over four years into research on clean technologies with Natural Resources Minister Gary Lunn, Mr. Baird said he is puzzled by the federal assistance in the booming sector.

"I cannot explain why the Liberal government of [new leader Stephane] Dion made these changes," Mr. Baird said, speaking in French.

The approach is slightly different in either case - the Canadian government is talking about eliminating programs which "allow oil companies to write off their start-up costs with breaks on taxes and royalties", while what appears to be a similar program in the US ("the oil and gas percentage depletion allowance, created in 1916 ... allow[s] smaller, independent oil companies to deduct 15 percent of sales revenue to reflect the declining value of their investment ... [another tax break] permits big oil companies to immediately deduct 70 percent of their "intangible drilling costs," such as the cost of wages, supplies, and site preparation") will remain in place.

In any event, though, the existing breaks seem pretty difficult to justify in the current climate (pun unintentional).  Interesting as well is the attempt by the Tories to play against (incorrectly applied) type, and appeal both to the libertarian-inclined and environmentally conscious (not that those are necessarily mutually exclusive categories).  We can say that when such different parties are undertaking such similar steps we're getting awfully close to a consensus.

The Deep Funk 01.09.07

In 1999, the band Buckcherry released a pretty decent rawk album which contained the absolutely phenomenal song "Lit Up", which, if you're in any kind of bar which is worth visiting, will completely bring down the house when it gets played. 

In a somewhat bizarre illustration of the different American and Canadian audiences for music, in 2006 Buckcherry released a song which, if anything, managed to top their previous effort, and was probably the best rock single of the year.  It sorta revived their career in the US; in Canada, nobody heard it.  Here's the completely gratuitous video, which is wicked, wicked NSFW.  I've been unable to find a version which doesn't censor the lyrics, but it's not like reading Pynchon or anything - you'll get the idea pretty quick.  When I was growing up, this was the kind of band I wanted to be in.  Then I went bald.

"neither an idle nor a rhetorical one"

"Why does anybody hire transactional lawyers?"  That's the question posed by Stephen Bainbridge in this story at TCS Daily.  This seems to be his conclusion:

By selecting the most advantageous structure for a given transaction, and ensuring that courts and regulators will respect that choice, the transactional lawyer reduces the cost of complying with the law and allows the parties to keep more of their gains.

I think that's part of the role that transactional lawyers (of which I count myself one) play, but that is ultimately just a subset of our primary function: to ensure that the interests of our clients are protected.  Everything else flows from that.  Bainbridge provides the following quote:

In his book, The Terrible Truth About Lawyers, Mark H. McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that "it's the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement. Accordingly, I would say that the best way to deal with lawyers is not to deal with them at all."

That's certainly one approach.  But the truth is to be found in his item (1) and final statement, with the emphasis on "seemed like a perfectly workable arrangement".  Emphasis on the "seemed" - it the transactional lawyers job to assess the "perfectly workable arrangement" cooked up by their client(s) and determine whether it is in fact "perfectly workable".  Gently pointing out the elements that are not "perfectly workable" can appear to be "gumming up the works", but is more likely to be the lawyer doing their job.

"no better way of leaving this life"

History buffs should find this fascinating:

A British secret agent who offered to blow up Adolf Hitler at the height of the Second World War was dissuaded from carrying out the assassination by MI5, according to newly released wartime archives.

The offer to kill Hitler in a suicide mission was made by Eddie Chapman, a professional criminal and safe-breaker who was trained by the Nazis as a spy and went on to become one of Britain’s most successful double agents, codenamed Agent Zigzag.

The story just gets more interesting from there.

"he's gone and blown it"

Richard Gwyn does an amazing job of undercutting his own argument in his column today.  Here's his thesis:

It's that the treaty itself [i.e., the Kyoto Protocol] should be an international one that matters. This [i.e., the fact that the treaty is an international treaty] provides the mechanism by which, as public concern about the environment develops in this country, politicians everywhere will be put under increasing pressure to translate generalities into concrete action.

And this is happening.

Got it?  The "dynamic" (to use Gwyn's word) is that Kyoto will magically force the hands of politicians into doing something about "climate change".  "Canadians understand this", intones Gwyn, and for Stephen Harper not to, in Gwyn's locution, "understand that Canadians understand this", is, again in his words, "singularly stupid".  Fair enough.  But let's take a look at the examples which Gwyn provides of how "effective" Kyoto is (these are the examples which Gwyn uses to illustrate his "this is happening" declaration, noted above).

In China, it's becoming politically acceptable for people to complain about environmental pollution. The U.S. performance on reducing greenhouse gas emissions is probably now better than ours, if only because of actions taken at the state level rather than in Washington.

*ahem*

Notice anything about those two examples?  Here's a hint: the US has not ratified the Kyoto Protocol, and in Gwyn's own description, China, while a signatory, is entitled to a "free ride".  Whatever it is that is causing these beneficial changes in China and the US, it ain't Kyoto.  Should we clean up the environment?  Undoubtedly.  Is the magical totem of "Kyoto" the only, or even the best, mechanism for achieving that goal?  Unlikely.

"controversial since it was announced"

I have to admit, I'm baffled at this news:

The Sobol Award, a U.S. literary contest offering unpublished authors a $100,000 US contract, has been cancelled for lack of interest.

I had posted earlier about the Sobol contest here.  Fewer than 1,000 manuscripts were submitted - organizers had expected more than 50,000.  It appears that the US$85 entry fee for the contest, and a slew of criticism sunk the endeavour.  As I mentioned earlier, I'm a little puzzled as to what the concern was - there's no sanctity to the manuscript submission or publication process, so I'm not sure why the need to pay money would have made this any more suspect.

BT Review: Mindscan

Mindscan, by Robert J. Sawyer (2005) (Publisher: Tor - Tom Doherty Associates)

I've been debating for a while whether or not to write this review.  As you can tell, I've decided to do so - and so for the first time since I began writing up my thoughts on some of the books I've read (more than twenty, spread over the now-defunct Let It Bleed and here at the new blog), I'm going to give a near-failing grade to a fiction book and tag it a "Don't Bother" (on the "Buy/Borrow/Don't Bother" metric).  Spoilers after the jump.

It's Almost As If They're Speaking from a Script

To refresh:

...the NDP and the Conservatives will attempt to work together to pass some form of green legislation.  As speculated about here, perhaps this will end up looking something like this: in exchange for concessions on a relatively robust environmental bill, the NDP will support a Conservative budget.  This allows Harper to project a conciliatory image and Layton to continue to burnish his "we-get-results" persona...

And so (hat tip: Greg Staples):

Layton told CBC Newsworld today that he needs to see some "dramatic and significant changes in direction" by the Conservative government before he'll commit to any kind of co-operative arrangement with Harper.

The NDP leader says he wants to see some "tough-minded" emission and pollution controls in the automobile and industrial sectors before he'll even consider helping the Tories pass key environmental legislation.

Layton says Harper needs to demonstrate some humility and willingness to compromise... [emphasis added]

You don't say...

Free Stuff!

Copyrightwatch.ca is a blog which is, unfortunately, infrequently updated, but when it is, it's almost inevitably fascinating.  So, with a tip of the hat to Michael Geist (and particularly the "Must Reads" section of his blog, which genuinely warrants the name), everyone should check out the Public Domain Day 2007 post, which lists dozens of authors whose works have gone into the public domain effective January 1, 2007 (note, however, that for authors whose originals works are not in the English language but have been translated into English (or other languages, for that matter), the translations themselves may still be the subject of copyright protection).  Which means that all sorts of material can now be reappropriated, remixed and refreshed - or, as Wallace McLean rather more lyrically words it, it is an index of material from which "modern-day creative people, historians, academics, and citizens of all interests, can recreate and build on the legacy ... left [to] us."

"All things that the technology utopians say they wanted to avoid"

Speaking of photographs, taking things down from the theoretical world of copyright and infringement thereof, a photojournalist writes a sobering account of how technology has enabled easy infringement of his copyright and appears to run the risk of beggaring him in the process.  There are a few different threads which are run together somewhat willy-nilly (it's as much a rant against "citizen journalism" as it is about the enforceability of copyright and economic rationalization), but it's an interesting read:

Fifteen years ago my sector had over a dozen photo-agencies which worked with freelance photographers, providing images to newspapers and magazines. Some specialized in sport, some in long-term documentary projects, some in hard news. Some were co-ops run by their members, some were big, some were small. In other words, the 'photo-eco-system' was reasonably diverse and a wide variety of imagery was produced by professional photographers earning decent fees.

Nearly all those agencies are out of business and now only a few major image corporations like Getty Images, Corbis - owned by Bill Gates - and Jupiter Images dominate the market and produce 'wholly owned' work - the corporation owns the copyright - either from staff or contract photographers. ...

If wholly-owned or virtually copyright-free (more commonly known as Royalty Free) content can be aggregated into a hub, and the economies of scale means the hub drives out smaller competitors, then huge profits be made.  It's a volume and service business now to such an extent that you could argue that the individual image has been rendered almost worthless. People either won't pay for images, or will only pay a small fee - as little as 50 pence a time for images offered by iStockphoto, an image library owned by Getty Images. All this commodified 'off the peg' stock imagery has infected the attitudes of editors commissioning 'live' photography. These commissioning editors now see photographers as widget makers, and the cheaper the widget, the better.

Pictures and Glass

Checked out the Ansel Adams/Alfred Eisenstaedt Two Photographers. Two Visions. exhibit at the Art Gallery of Ontario yesterday, and it's worth the visit - at least the Adams portion (which is by far the larger) is worth the time.  I only possess a "I know what I like" critical appreciation for photography, but the pairing of these two by the AGO (the Adams portion of the show is on loan from the Boston Museum of Fine Arts) seems to endow Eisenstaedt with a bit more significance than he merits - at least judging by the quality of the prints shown here, Eisenstaedt's work is... rather pedestrian.  Yes, I get that that may be the point.  Perhaps Eisenstaedt suffers from the imposed banality of the pioneer: once his technical and compositional innovations have been adopted by everyone else, whatever his contribution was becomes impossible to discern.  Of course, perhaps I'm an entirely uneducated mook and I'm missing the whole point when it comes to his stuff.

Anyways, the confluence of museums and photographs reminded me of something I've been meaning to post about: the Corning Museum of Glass.  On December 21, 2006, I mentioned that I would be undertaking a road trip to New York City in the near future, and asked if anyone had any recommendations for things to see in upstate New York State along the way.  One helpful reader suggested a trip to the Corning Museum of Glass - which, since it's approximately half way between Toronto and NYC, seemed perfect.

And it was - for anyone who is ever in the Corning/Ithaca/Binghamton area, I highly recommend taking part of a day to check out the Museum of Glass.  This is one of my favourite pieces in the collection:

The facility is brand new and beautiful, and among the thousands of well-displayed pieces in the collection, which covers glass-making from its origins in the Middle East, through Roman, Islamic, Renaissance, Baroque, American and modern iterations are some breathtaking examples of glass as both a functional and decorative art form.  The Museum website recommends setting aside at least three hours to properly view the exhibits, and that seems about right - in addition to the exhibits themselves, the glass-making demonstration, scientific displays and even the gift shop reward attention.

The Museum of Glass is also one of the only museums I've ever been to which allows you to freely photograph whatever the hell you want.  I've set up a separate photo album here for anyone interested in checking out the pictures I took.  A couple of notes on the photographs: the batteries ran out before I reached the "modern" portion of the galleries, so to see some of the most innovative stuff, you'll just need to visit the damn place; I was having a hell of a time figuring out the proper settings to get good shots since the lighting was wreaking havoc with the flash, and most of the exhibits have panes of plexiglass in front of them; and a bunch of the shots in the photo album are poorly focused (that plexiglass thing again), but the colour effects of the pieces were more important than detail, so I've included them anyways.

Since our charter here mandates that a portion of our content be devoted to legal education, I should also point out something which may (should?) strike some lay readers as incredibly odd: most of the pictures in the photo album of modern works constitute infringements of copyright - having reproduced a piece of art in its entirety, the picture itself has violated the copyright of the artist in his or her work.  Ponder that.

Items which you may wish to keep an eye for among the pictures: the glass slipper; the Tiffany window; and the good-looking guy I happened to photograph while he, coincidentally, was also taking a picture.  Hah.

Oh, and yes, all of the pieces you see in the photo album are made out of glass.  Including the slugs.  Go figure.

Since There's Nothing Quite Like Talking About a Show Before It Airs...

here are my two cents on the imminent debut of Little Mosque on the Prairie, which has been drawing attention from a number of my confreres.  I quote from page 13 of the January 4, 2007 edition of Toronto's eye weekly, being the review of the show by eye's TV critic, Joshua Ostroff (review not available online):

[Zaib] Shaikh's delivery is underplayed and the other two leads, Yasir ... and his biracial daughter Rayyan ... also keep things realistic.  Yet the supporting cast overacts and the white folk come off a little too racist to be believed.  There's humour to be found in the school-of-fish-out-of-water story ... but it'd be easier to comically dismantle stereotypes if the characters were a little less, y'know, stereotypical. [emphasis added]

Allow me some understatement: if even the folks at eye are remarking negatively on how the white yokels are portrayed, this probably isn't a show which will count subtlety among its charms.

Truly Random Musings

Substantive posting still to come (I swear), but in ranging through the Canadian blogosphere today, the following are my two favourite statements thus far in this young year.  Your mileage may vary.

• Jason Cherniak: "I saw Khan on [Delegate Selection Meeting] weekend for the Liberal Party. Khan was supporting Joe Volpe and he had organized a private dinner for all Volpe supporters. I thought it was a bit underhanded because you could smell the food all through the voting hall." [emphasis added - I have no idea why I find that so funny, but it's had me in near-hysterics for the last ten or so minutes]
• James Bow: [in making his predictions for 2007] "The Canadian political blogosphere will have its first sex scandal".  And that will have me in near-hysterics for the next ten or so minutes.  I say we open a pool on who the scandal will involve.

The Deep Funk 01.05.07

People say the Bee Gees suck.  People don't know.

No Wonder He Gets Pride of Place on the Op-Ed Page

Jeffrey Simpson on Wajid Khan:

Jeffrey Simpson: Wajid Khan will disappear after the next election. He signed up several thousand Muslims and won the Liberal nomination in a safe Liberal seat. The Liberals will nominate another Muslim against him, and he will likely lose. It gives a government a visible minority presence that it lacks, so in the short term this is good, and it balances a little the optics of a government that had pretty much handed its Middle East policy over to the Canada-Israel committee. [emphasis added]

Eddie Greenspon, you gots some good thinkers working over there.

Over There

What with roadtrips, end-of-year "best of" list commentary, political happenings and various book developments, I have a glut of posts waiting to be written.  What with getting back to work, however, those will mostly need to wait.  In the meantime, a series of thoughts on various issues related to the international scene:

• A Norwegian hotel chain owned by Hilton is facing some kind of massive protest because the hotel has refused to allow a Cuban delegation to stay there, citing the fact that Hilton, as an American company, is subject to the US embargo on trade with Cuba.  In a move which some observers have described as "*cough* hypocritical *cough*", some of the largest trade unions in Norway (including the "300,000-member Norwegian Union of Municipal and General Employees" and the "830,000 member Norwegian Confederation of Trade Unions") are now boycotting the hotel chain.  I assume we can all agree that the US embargo (fully imposed in 1963 by John F. Kennedy and subsequently continued and expanded under Reagan and Clinton) is moronic and should be done away with fortwith, but could people opposed to it at least get their facts straight?  The Norwegian Union of Municipal and General Employees issued a statement demanding that "the [Norwegian] government take steps so that companies ... which clearly abide by the United States' illegal boycott and blockade and not Norwegian law, are barred from doing business in Norway" (emphasis added).  The US trade embargo is not a "blockade", which would require there to be US ships surrounding the island and preventing any passage to or from.  Nor is the boycott "illegal" - a country can decide not to trade with another country without in any fashion violating international law (there may be a vague argument that there is some illegality in the purported extra-territorial application of domestic US laws surrounding the embargo, but I somehow doubt the NUMGE is quite that subtle in its analysis).  As you were.


• The Cato Institute published this interesting analysis of corruption in Venezuela.  Take away from it what you will, but it's interesting to note how endemic corruption has been in Venezuela since its independence in 1821 - it just seems that now corruption is more, er, "democratic".  And since corruption isn't a good thing, the fact that it is now more demographically widespread doesn't seem like much of an advance...


• There was an enormous amount of commentary surrounding Gerald Ford's death, and since he was US President for such a short period of time most of it revolved around the one dramatic incident for which he is remembered: the pardon of Richard Nixon.  Two things to note. First, here is the text of the actual proclamation which pardoned Nixon - which still leaves, for me, the unanswered question: how do you pardon someone of a crime which not only haven't they been convicted of, but they've never even been charged with?  Second, Christopher Hitchens, guy that he is, squawks at the funeral: How President Ford managed to go soft on Iraqi Baathists, Indonesian fascists, Soviet communists, and the Shah … in just two years.


• Finally, a couple of interesting pieces on the demise of Saddam Hussein: Anne Applebaum on Saddam's place in "the pantheon of modern dictators", and Efrain Karsh explaining why some Arabs are upset about Saddam's execution.

New Article

One of the least enjoyable aspects of writing for law journals is the task of coming up with a catchy title for your piece - it's generally supposed to be something which (a) describes the nature of the article, (b) is somewhat clever and (c) is short.  Puns seem to be highly valued, as well.  I've never been good at (c), but there have otherwise been positive words spoken about the title of the newest article added to the articles page - "A Minor Conundrum: Contracting with Minors in Canada for Film and Television Producers", recently published in volume 29 of Comm/Ent - the Hastings Communications and Entertainment Law Journal, put out by the Hastings College of the Law at the University of California.  One minor note: the final printed version contains some wonky footnoting - I think I've cleaned up the minor errors in the .pdf file, but I have had to retain some unnecessary duplication in citations in order to keep the number of footnotes consistent between the versions.

Neighbourhood Watch

Perhaps in honour of a new year dawning (then again... perhaps not), Rick McGinnis is blogging again.  No one could quite MC the secretive gatherings of our movie-watching cabal with the same touch of loathing and archival fetish that Rick manages.  Plus, I'm often slightly startled by what his employers at Metro will let him get away with in his review columsn.  Oh, and trolling through his accumulated writings at his homepage is often good for finding out interesting things (Rick appanrently once partied with Soul Asylum f'rinstance... back in the late '80s, that was a pretty frickin' cool accomplishment).  Finally [the crowd cheers], he's a hell of a writer.  So check him out.