bob tarantino

"let's be honest here"

Matthew Shogilev's recent argument at The Court that all judges appointed in Canad should be bilingual (Shogilev limits his prescription to Supreme Court justices, but his thesis ("those without a strong command of both official languages ... are not as well positioned to engage in effective statutory interpretation") applies a fortiori to judges at all levels - why would we want only SCC justices to be competent in "effective statutory interpretation"?) was rather adroitly addressed a couple of days later by Christopher Bird in the same forum.  A slightly more humorous riposte, though addressing largely the same underlying motivations, to the argument can be found here.

"a major victory for all of those who release code"

Plagiarism Today posted an informative summation of the recent Jacobsen v Katzer decision [pdf] by the US Court of Appeals for the Federal Circuit.  The fundamental import of the case is this: infringement of the terms of an "open source" license amounts to copyright infringement and not just breach of the terms of a contract.  As Jonathan Bailey at PT lucidly explains, that has very important consequences for the range of remedies available against an infringer.

"overmatched laymen bumbling through labyrinthine court procedures"

The Walrus has published a piece addressing the access crisis which plagues the Canadian legal system.  For my tastes, the proposed solution (guaranteed access a la health care) is precisely the wrong one: because it results in a removal of responsibility from its proper locus - namely, lawyers.

As with any discussion about reforms to the legal system, once the conversation includes lawyers, one topic, peculiarly enough, drops out of sight: meaningful sacrifices on the part of the legal community itself.

What are the problems which have been identified?  Lawyers cost too much and the system is too complicated.  In the abstract, what are the solutions to those problems?  Make lawyers cost less and make the system less complicated.  Talk to the lawyers, however, and what is the solution that they propose?  Give us more money. 

As the article describes, the most innovative and productive efforts arose precisely as a result of a diminution of legal aid funding.  If the only metric which the legal community will consent to use is the market mechanism of pricing, then the bulk of providers of legal services will do the most economically rational thing possible within that framework: namely, chase the most lucrative work and highest-paying clientele, leaving the vast majority of legal needs unaddressed.

We already know that the organized bar cannot be relied upon to effect change within the timeframes which are required (i.e., yesterday).  To take a simple example, since that day a little over twelve months ago when the paladins of justice manned the barricades in defending the precious honour of the legal profession after a newsmagazine used an unflattering word about them, has a single meaningful and effective step been taken to address the threat to our justice system represented by the high cost of legal fees?  Has anyone at the highest levels of the profession done anything which has rendered actual tangible results in the over two years since the Chief Justice of Canada issued her clarion call about the "epidemic" afflicting our courts?  Well, other than holding out their hands and sniffing "more, please"..

Here's a wacky idea: how about the government mandate, as a quid pro quo for the continued state-sanctioned monopoly which is granted to lawyers, that lawyers and/or law firms devote a particular amount of their time/resources to the provision of pro bono or reduced fee legal services to poor and middle-class citizens?

Out in the World 08.14.08

Though it may degenerate into an all-out brawl, thus rendering the proceedings unsuitable for broadcast, I'll be joining Kathy Shaidle, the Flea and Jason Cherniak for a taping of the Michael Coren show on Thursday, August 14, 2008.

Now I Remember

...why I largely stopped reading opinion columnists - because neither they nor their editors can evidently be bothered to indulge in the most rudimentary fact-checking exercises.  Linda McQuaig in today's Toronto Star:

This public obliviousness has allowed the Bush administration, with its disdain for disarmament, to keep expanding the U.S. nuclear arsenal, even openly defying the decades-old ban against weapons in space.

Say what you will abou the Bush administration, but they've done the exact opposite of "expanding the U.S. nuclear arsenal".  Don't take my word for it.  In 2002 the US and Russia signed the SORT treaty, which pledged both countries to the reduction of the number of their nuclear warheads to a maximum of 2,200 per state.  What does the Bulletin of the Atomic Scientists (the good folks who brought you the "doomsday clock", and who describe their mission as "inform[ing] the public about threats to the survival and development of humanity from nuclear weapons, climate change, and emerging technologies in the life sciences") have to say about Bush administration efforts vis-a-vis "expanding the U.S. nuclear arsenal"?  Well, let's look at their Nuclear Notebook - US Nuclear Forces, 2008 [.pdf]:

In 2007, [the US] restarted small-scale production of nuclear weapons for the first time in 15 years, though reduction of the stockpile continues...

The United States reduced its nuclear stockpile to 5,400 warheads.

The Defense Department removed an additional 5,150 warheads from the stockpile for future dismantlement ... An additional 15-percent reduction will be achieved by 2012...

Reduction of the Minuteman III missile force began on July 12, 2007...

Six years after SORT was signed, the air force is gradually reducing the number of warheads on ICBMs from roughly 1,600 in 2003 to approximately 764 today...

As the Bulletin notes, in 2004 Bush committed the US to a 50% reduction in its nuclear stockpile by 2012... a goal which was achieved in 2007, five years early.

Both McQuaig and her editor should be ashamed of publishing such an easily-disproved, incontrovertible lie.

stuff about writing you probably won't care about unless you want to write

Lore Sjöberg offers some helpful (and pithy) guidance on getting published:

The point is that you, the writer, do not pay the agent. You do not pay the publisher. Not for reading the manuscript, not for offering suggestions and certainly not for printing. The agent gets a portion of the money you've already made. The publisher makes a profit from sales. You do not write checks to these people.

As a writer, you're free to spend as much money as you want for your own purposes, like workshops and hand-stitched dream journals and magic feathers. You might even choose to spend some or all of your advance on publicity, once you have the cash in hand. But if an agent or publisher tells you that you need to shell out in order to make the deal happen, you should listen for telltale chittering and examine the person's spine for the subdermal squirming associated with literary scammers.

Yes.

When it comes to "what-havoc-will-technology-wreak-on-this-industry", the music industry tends to garner all the oxygen.  Which is too bad: since the question raises answers just as interesting, I like to think, when applied to book publishing.  Simon Chester, back in May, attended a Writers Union discussion which focused on the issue.

The issue that Canadian authors confront is how to adapt their work and their expectations to shifting business models for Canadian book and periodical publishing which are continually under threat by shifting market forces, and the new technologies. ...

The discussion was then wide-ranging, with particular emphasis being placed on the new announcement by Robert Miller, who recently announced that HarperCollins would be moving to an experimental, and highly disruptive business model:

No more authors’ advances, instead, higher royalties and profit participations.

No more returns. Returns are the dirty environmental secret of the book publishing industry. Of all books printed, between 25 and 35 percent are ultimately returned to the publisher, for a full credit and pulped, recycled, or dumped in landfill. HarperCollins believes that it can calibrate demand much more finely, and if shortages develop, rapidly print substituted goods.

No more additional fees for prime product placement in major book stores. Instead, HarperCollins believes that it can generate buzz in other ways.

Aggressive use of the internet for marketing and promotion, and to build collaborative networks of readers and enthusiasts.

Simultaneous publication in electronic downloadable and digital audio formats.

Speaking as someone who has had only the most fleeting of professional interactions with book publishing, it is a wonder just how reticent the industry is to embrace new delivery mechanisms and jettison existing business models - no more so than other industries, surely, but the public attention focused on those other industries has resulted in endless discussions about innovations which could be implemented on publishing - but little of it seems to have been adopted in a comprehensive manner.  It will be interesting to see if the HarperCollins approach bears imitation.

The Other James Brown

This one should be fascinating to watch:

Former Cleveland Browns player Jim Brown is suing Electronics Arts and Sony for using his image in EA's Madden NFL series without his authorization ... [arguing] that video games had not yet been invented when he was playing football in the NFL, and he therefore never had the chance to make the decision to sign away the rights to his image to be used in video games. (Davis LLP Video Game Law Blog)

EA evidently has an agreement in place with the NFL which presumably purports to grant EA the right to use the name, image and likeness of retired players.  Information on how Canadian legislatures and courts protect the personality rights of individuals (both celebrity and non-celebrity) can be found here (note: the information at the preceding link is slightly outdated) and here.

Under Arrest: Review

The ineffable Dr. Dawg has been generous enough to post a very detailed review of Under Arrest - Canadian Laws You Won't Believe.  He was also generous enough (my cup spilleth over) to include in his review sentences like "Bob Tarantino is one of those lawyer/writers whose lucid style and wit can turn a potentially dreary subject into a genuinely interesting one" and "this is a book well worth the read".  But my selective and self-serving quoting does a disservice to Dawg's thoughtful and perceptive review - so check it out.  Looks like I need to add another beer to the tab I owe him.

Out in the World 08.13.08

I'll be in Montreal on Wednesday at the Intellectual Property Institute of Canada's The Business of Copyright course (I'll be co-presenting the Track 1- Copyright in Entertainment and Publishing - Film and Television Issues seminar at 2:30pm with my colleague Stephen Zolf).  Feel free to come by and heckle.

"a legal profession that fails to respond runs the risk"

Should lawyers continue to be self-regulating?  The answer can only be guided by assessing the metric which is supposed to motivate the principle of professional self-regulation: the best interest of the public which we serve.  Two of our three closest common law sister jurisdictions (namely, England and Australia, with the US being the holdout, except for some minor incursions in the context of securities law) have decided that lawyers should no longer be self-regulating and that regulatory power should be held by the state.  Will Canada venture down the same path?  Paul Paton offered some thoughts here.

“doctrine of mental reservation”

Franco Tarulli posts a thoughtful and link-rich post which ponders: is it ever acceptable for a lawyer to lie to the court?  Thankfully, the consensus position (and the correct one, IMHO) is no, it is never acceptable for a laywer to lie in such circumstances (frankly, it's difficult to imagine circumstances, outside of in extremis theoreticals which would ethically permit a lawyer to lie).  That there are lawyers who think it is necessary to have this discussion should give other members of the profession pause - that they need to rely on bizarre constructions such as that which forms the title of this post should give the moving lawyers pause (but appears not to).  As Tarulli states,

While a lawyer should always act in ways that advance the client’s interests, he or she lawyer should also act so as to strengthen public confidence both in the role of the profession and in the judicial system at large.

Indeed.

"the industry isn't showing signs of a slowdown"

Wired has published a short piece which discusses a few interesting, if countervailing (and largely counter-intuitive), trends: a new study which shows that movie theatres are going to get hit hard by a recession, confronted by continuing strong box office, both in terms of dollar gross and attendance numbers (which might be an indication that, er, there isn't a recession, but I digress), and the question of whether new formats (VHS and DVD, among others) function as a replacement or a driver for theatre attendance.

"Fair Dealing After CCH"

My former classmate, and current Osgoode Hall professor, Giuseppina D'Agostino, wrote a wonderfully comprehensive piece on "fair dealing" in Canada in the post-CCH environment which is now being hosted by Canadian Heritage - of particular interest is that it contains comparative analyses of the concept in the UK and of "fair use" in the US.  An html vesion can be accessed here, and a .pdf version here. (h/t Geist)

Keeping Them By Sending Them Away - Viva Voce

CBA PracticeLink has transformed my "Keeping Them By Sending Them Away - Sabbaticals and Lawyer Retention" article?into a rather nice podcast, which can be listened to or downloaded here.