Insta-click send-a-letter (not just an email, but a hardcopy) to all significant government parties regarding the new Canadian copyright bill (which is bad). Register your discontent! You know, if you’re Canadian.

…so this week, my article for TheCourt.ca is about Boumediene v. Bush instead.

It counts because we consider American precedents to be somewhat persuasive!

One of the Harper government’s big national security hullaballooes has been the arrest and trials of the “Toronto 18,” a band of Muslim supposed-terrorists who were conspiring to blow up Parliament. (Of course, they had no idea how to do it until undercover RCMP officers explained to them how to do it, but that is neither here nor there.)

One of the “Toronto 18″ is a youth of 17. At his trial this week, it was explained by the RCMP’s own informant that this young man, a recent convert from Hinduism to Islam, had no idea what the group was planning, and believed that the training camp the group set up was a religious retreat.

But wait, it gets better:

Court has heard how the youth was among a dozen people who attended a military-style camp about two hours north of Toronto in December 2005.

“They sat in the tent terrified,” court heard of the other campers. “They ended up huddled, shivering in the tent.”

Wolf and bear noises.

One of the right-wing Canadian blogosphere’s great causes is their opposition to human rights tribunals, mostly because of the hate speech provisions these human rights tribunals sometimes take up. (To hear them complain, you would think human rights tribunals spend the majority of their time censoring people, when in fact most cases heard by these tribunals concern basic workplace equality. Not that they like that either, mind you, but.) Their current hobbyhorses are Mark Steyn (who was found innocent at his Ontario tribunal because hate speech is more than just the simple, dimwitted racism Steyn exudes, but never you mind that apparently in Steyn’s case the system worked - it’s the principle of the thing) and now an Alberta minister named Stephen Boissoin, who wrote a mean letter-to-the-editor about how he hates them fags.

The text of the letter can be found here - I refuse to endorse the schmuck even backhandedly by reproducing it in full, and loath as I am to give Kathy “I Proudly Admit I Am A Bigot” Shaidle traffic, I really couldn’t find anybody less objectionable who was willing to publish it. Which tells you something, really, and the gleeful insouciance with which they republish this dreck tells you something else.

(They’ll claim to be defenders of free speech, but I don’t see ‘em republishing, say, excerpts from Catcher In The Rye or Lady Chatterley’s Lover or The Anarchist’s Cookbook or any other famous books frequently banned. Heck, if they want to go at it from a conservative angle, they can always reprint a portion of The Adventures of Huckleberry Finn, frequently the target of misguided liberal censorship. But no, they’re desperate to republish bigoted crap.)

I’ve given hate speech law a lot of thought, precisely because although I applaud its aims, I do have concerns about its practical application. Those who know me know that I generally favour freedom of expression as a rule. I don’t need to go into the reasons why I favour freedom of expression; these should frankly be self-evident to any reasonable reader and if not, go read some Thomas Paine or something.

But as a society, even before we ever considered tabling hate speech laws, we recognized that freedom of expression could be used to harm, and acted appropriately. We don’t recognize threats as speech (despite what some Metafilterites might think about this). Likewise, consider defamation, and our slander and libel laws. As a society, we understand that malicious and deliberate harm to one’s reputation through falsehood is that which should not and cannot be allowed, lest we inappropriately empower those with access to greater voice in our society. (And yes, I recognize that the Internet has managed to even the playing field somewhat in this regard, but it has not created a situation where libel and slander laws are outdated. Rupert Murdoch still has a bigger megaphone than me and can use it for great harm.)

But slander and libel law can only be applied to the defense of individuals. What happens when language is used to slander or libel groups? And before you say “well, isn’t most racism just opinion and therefore not validly applicable to groups,” let me excerpt a piece from Boissoin’s rant.

From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by homosexual and pro-homosexual educators. Our children are being victimized by repugnant and premeditated strategies, aimed at desensitizing and eventually recruiting our young into their camps. Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system; all under the fraudulent guise of equal rights.

Is that just opinion? Let me put it another way.

From kindergarten class on, our children, your grandchildren are being strategically targeted, psychologically abused and brainwashed by Chris Sims. Our children are being victimized by Sims’ repugnant and premeditated strategies, aimed at desensitizing and eventually recruiting our young into their camps. Think about it, children as young as five and six years of age are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance by Chris Sims; all under the fraudulent guise of equal rights.

If I said that in seriousness about Sims, he’d be quite able to bring a defamation tort against me. I could assert a fair comment defense, but to do so I would have to prove that the statement is based on proven fact.

Taking this back to Boissoin, there’s a number of claims in just those few sentences that are highly questionable. “Physiologically damaging” likely qualifies as verifiably false. “Psychologically abused” and “brainwashed” toe the line; Boissoin might argue them to be mere invective, but abuse and brainwashing are extreme language that carry specific connotations along with them.

But hate speech law isn’t just about defamatory claims (although they do play a large element). It’s also about eliminationist rhetoric, the attempt to use speech to not only defame a group but also to dehumanize them - which in turn encourages violence against them, because if your opponent is seen as less than human, violent reaction against them becomes easier to justify. Encouragement of violent behaviour is seen - rightly - within our legal systems as invalidly qualifying as “speech” and the protections granted to speech, because despite what Bigot Central might think, hurting people you don’t like has no valid purpose within a just society.

Kathy Shaidle and her ilk have no problem condemning such rhetoric when it’s spouted by fundamentalist Muslim extremists, but apparently Stephen Boissoin is a cause celebre for writing

Come on people, wake up! It’s time to stand together and take whatever steps are necessary to reverse the wickedness that our lethargy has authorized to spawn. Where homosexuality flourishes, all manner of wickedness abounds.

or

It’s time to start taking back what the enemy has taken from you.

Those are direct calls to action, nothing less, and the Shaidle wing will pooh-pooh them by saying that Boissoin hasn’t explicitly said “hey, go kick a fag to death.” This lackspittle defense relies on the belief that all men who would work evil through speech are morons. The implicit call to arms is there, and Boissoin’s choice to not limit action (”whatever steps are necessary”) is quite deliberate.

And that is the crux of hate speech law in Canada - we look to dampen defamatory and inciting rhetoric, recognizing through both history and common sense that some speech is not worth contesting in the court of public opinion, because speech is dangerous - indeed, far more dangerous than any mere weapon. It’s a natural extension of defamation law, a concept which has been with us for centuries. As a society, we choose to recognize that although the freedom of speech is important, and indeed vital to the health of a functional democracy, that absolute freedom of speech by its nature will conflict with other rights, such as liberty or freedom from persecution, which are equally important in Canadian constitutional law.

Now, this doesn’t necessarily mean that human rights tribunals don’t require reform - they do tend to be somewhat patrimonious and they’re built with pre-Internet statute and are frequently outdated in their handling of cases. But that doesn’t mean the job they perform isn’t worth doing; it just means they need to do it better.

EDIT TO ADD: In comments, Joe Helfrich expresses his discomfort with hate crime law, which is a somewhat different kettle of fish than hate speech law. I fully disagree with the concept of hate crime law, which takes ordinary crimes and attempt to divine hateful intent in action to create a more punitive sentence; we have trouble enough in criminal law determining intent (indeed, the search for mens rea is the defining element of most criminal law trials) without going a step further and attempting to prove one’s motive.

That having been said, there’s a longstanding tradition in speech law that end effect is more important than original intent - if I libel you without malicious intent and you get screwed because of it, I’ve still committed libel regardless of me not intending to. Critics of this tradition have suggested it forces people to be more careful about what they say; proponents have suggested it forces people to be more careful about how they say it.

Scott asked me for my take on the new Canadian DMCA (and make no mistake, that’s what it is).

Most people know I tend to be somewhat “copyleft” when it comes to my attitudes on copyright; I favour lower terms of private ownership of copyright for a larger public domain, flexible and relatively wide-ranging fair dealing laws, and legal systems that encourage trial use rather than full immediate purchase of intellectual property. Canadian statutory law contains no protections under fair dealing for parody or transformative use; the protections that exist for me when I use Photoshop to make Iron Man say “fuck” exist solely in jurisprudence, and every serious intellectual property law expert in the country has recommended to a number of governments that, hey, maybe we should enshrine that in statute.

Needless to say, Jim Prentice’s bill does none of these things. Michael Geist has already explained at length how the expansions for fair dealing contained within the bill (and fair dealing in general) are almost wholly nullified by the digital lock provisions. This bill makes most fair dealing illegal simply by having the original producer of content put a basic digital lock or DRM on their material. (Or, more simply, your right to make a copy of a song on a CD that you own ends the moment the CD has a simple DRM on it. The tools to evade that DRM? Illegal as of this bill.)

In short it’s a terrible, terrible bill - a sellout to American lobbyists that completely ignores all the effort Canadian citizens made earlier this year to say “hey, this is a shitty bill and we don’t want it.” With any luck, it will be voted down in Parliament. (Of course, the Harper government may go ahead and make it a confidence vote, in which case Stephane Dion will likely run from his own shadow.

Michael Geist has more, of course.

My second post at thecourt.ca this week is about the sentencing of a fairly notorious asshole.

It’s worth noting that sometimes, in criminal justice, you have situations where judges are looking for a legal excuse to really nail someone to the wall. This is, I think, one such.

As always, my weekly TV column is up at Torontoist.

Also, this week I’m pulling double duty at TheCourt.ca, starting off today with a post about R. v. Walker and its implications for judicial reasoning requirements in criminal trials.

This week from me at The Court: brief commentary on the Supreme Court’s decision in R. v. J.H.S., a case about the necessity of preserving the principle of “beyond reasonable doubt” in the jury instruction process in criminal trials, and what that necessity requires.

Another week, another posting from me at The Court - this week is a critique of the recent ruling in Canada v. Khadr, which should be of interest to some of my American audience, seeing as how it concerns a Guantanamo Bay detainee.

A new post from me at TheCourt on Lake v. Canada (Minister of Justice), which is primarily an example of judicial deference to federal exercise of powers, but I threw in some stuff about American mandatory minimum sentencing for drug offenses to keep it interesting.

This week’s contribution from me at TheCourt.ca is a bit on Loving v. Virginia and its influence on high-level Canadian jurisprudence.

I continue to spawn and recreate myself elsewhere on the internets; now and for the foreseeable future, I’m a senior contributing editor at TheCourt.ca, Osgoode Hall Law School’s group blog covering the decisions of the Supreme Court of Canada, where I’ll be posting once a week (at least for the summer).

Granted, my writing there will have a lot less swears than my audience here has come to expect from me, and the topics may not be of interest to all and sundry, and needless to say there’s no Photoshopping, and that’s all fine - but it’s important stuff, and I’m glad to be writing it.

Sad to say, I just missed all the discussion of the drug sniffer dog cases the week prior, so my first piece for the site is a brief summary of R. v. Mathieu, which is about whether trial custody can count towards a jail sentence (see? Thrilling).

Over at Obsidian Wings, commenter Sebastian (not ObWi poster Sebastian Holsclaw, but an entirely different Sebastian) made the following comment, which needs greater spreading-about because it is completely true. So:

Yoo is legal realism taken to its natural endpoint.

So when you say ‘invented, whole cloth, justifications’ you are talking about what lots of lawyers do. They know that the general understanding of the law says one thing, and they create confusion to get the opposite result. They create the confusion and then point to it and call it ‘unsettled’.

Okay.

Look, I get that comics fans, if there is even the slightest hint of having their precious weekly comic flow interrupted, will throw a collective hissy, not unlike a three-year-old who has not yet gotten his juice. (Actually, this is unfair. Juice is a lot more important than comics are.) And I understand that a lot of comics fans have the legal sense of your average groundhog.

But, for the life of me, I don’t understand this argument, which I have seen advanced numerous times around the internets:

“Siegel and Shuster’s heirs do not deserve to control the rights to Superman, because they had nothing to do with his creation.”

See, that first part is fine. It’s a perfectly reasonable - if someone brutal - argument for expiry into the public domain upon creator’s death, and I actually agree with the general thrust of it, seeing as how I think public domain rights are being steadily trampled in favor of corporations. The problem is that the unspoken (or, hell, even spoken) corollary of this argument is:

“DC Comics deserves to control the rights to Superman.”

There is nobody working at DC Comics today who was involved in the development of the key elements of Superman, you know. Not a one. They’re all dead, or extremely, extremely retired. I can understand the argument that the Siegel estate doesn’t deserve a share of Superman at this point; the co-argument that a legal fiction does, however, completely contradicting the basis of the first argument, is just stupid.

The decision came down yesterday that the estate of Jerry Siegel has won the copyright to Superman - specifically, “all Superman material in Action Comics #1.” I’ve already seen in a few places people worrying about how this may BANKRUPT THE COMICS INDUSTRY BY SETTING A PRECEDENT!!!!one!!1! Or, more amusingly, the legion of retards commenting on the Newsarama blog getting indignant that the Siegel estate is trying to “destroy Superman” and that Siegel and Shuster’s estates are simply greedy bastards trying to steal money rightfully not theirs.

(Inevitably, whenever Newsrama posts a legal story, it gets a shitload of comments. Equally inevitably, the level of ignorance from people who think the law is just as simple to define as a Green Lantern power ring’s weakness is displayed in full force.)

Don’t worry. The implications are smaller than you think. The decision - which, incidentally, is really quite readable for non-lawyers - can be found here.

The core of the Siegel lawsuit is that Siegel and Shuster created Superman before they began working for DC. (He was originally intended for a comic strip, but they decided to sell him to DC for publication later.) Changes to the United States Copyright Act in the mid-70s gave creators one-time rights to request control of copyrighted works they sold in the years prior (on the basis that, given the change in copyright law - notably the extension for which works remained in private domain - they might have chosen not to sell). The Siegel case has been an example of this sort of attempted recursion.

The Superboy and Superman lawsuits over the past twenty-plus years have been (and this is personal opinion, having studied the case previously) basically one long case of DC Comics being moneygrubbing assholes, because on the merits of the case Siegel had this one in the bag (Shuster has a tougher case due to some contractual issues), and DC/Time-Warner have simply been fighting a stall game for as long as possible on the basis that the $1 billion (yes, billion) per year Superman franchise generated more money than it cost them to pay lawyers to stall.

In terms of implications for the comic industry as a whole - not much, because this isn’t a landmark decision or anything. Most of the major contentious or potentially contentious work-for-hire properties have been settled by contract or established in caselaw - Joe Simon on Captain America, Bill Kane on Batman, etc. (Maybe Steve Gerber’s estate can make a case for Howard the Duck, as I’ve heard he invented the concept independently of Marvel, but for most properties in comics it will generally be very hard to prove that the work was not created on a work-for-hire basis, if not contractually invalidated right from the get-go.)

In terms of the implications for Superman, they too are less than you think. Yes, the Siegel estates now control, to an extent, the copyright of Superman, but copyright for most of Superman’s fellow-concepts - such as Jimmy Olsen, Lex Luthor, Metropolis, The Daily Planet, et cetera - rest firmly in DC’s hands. (Copyright in this regard is a bitch to navigate - Superman’s copyright covers his relationships with the aforementioned, but not necessarily the aforementioned. Lois Lane, who unlike most of the Superman mythos first appeared in that fateful first issue of Action Comics, may fall to the Siegels.) More importantly, DC Comics completely controls and owns the trademarks for Superman - the big red S, the curvy-text Superman logo, the costume, and so forth. Siegel’s estate is not going to take Superman away from DC; it’s functionally impossible to do so until Big Blue passes into the public domain, which won’t be for about another twenty years (barring another corporate-inspired extension of private domain rights, of course).

The major point is that Siegel’s estate will now be owed back pay, I believe, on their rights as owners of the Superman copyright - the amount of which, of course, be contested by DC as well, and on reasonable grounds (namely the “look, we did all the work for all those years” argument, which is not invalid). Also note that DC retains exclusive control of Superman’s international copyright - the Siegel decision merely reflects domestic copyright.

However, DC will have to start forking over monies generated by Superman, most notably those from Smallville - prior to this decision, DC was holding out that Smallville was a show about a “young Superman” rather than “Superboy,” to evade paying the Siegels their share of profits from the show in the wake of the decision that put the rights to Superboy in the hands of the Siegels last year. The point, obviously, is now moot. Of course, they won’t fork over everything, because DC is responsible for producing the show and the Siegel estate doesn’t want to bother with that work. It’ll be a straight-up profit-sharing deal.

Of course, maybe DC will just change his costume. Then again, we know how well that worked out the last time they tried it.

After discussing the Adbusters case previously mentioned here in class, my constitutional law professor sent me an email elaborating on the subject, and since I thought it was interesting (and since said professor is one of the top constitutional law scholars in Canada), I thought I’d pass along the relevant parts.

The relationship between s.2(b) of the Charter and broadcasting law/policy is a fraught one; optimists would say it is largely unexplored territory, pessimists would say that s.2(b) is going to have little impact in the area.

It is clear that the CRTC is part of the executive branch of government and is thus subject to the Charter pursuant to s.32 (the Adbusters ruling did not address this issue; it did address the question of whether the CRTC could be added as a party to the claim, which is a different issue having more do with [civil procedure rather] than constitutional law).

Even though the CRTC is subject to the Charter, the federal court has tended to say, on appeals of decisions dealing with licensing restrictions or cancellations, that s.2(b) is not violated when the CRTC imposes negative consequences on broadcasters who have failed to comply with the terms of their licences or Canadian broadcasting policy. A good example is the Federal Court ruling in the case challenging the cancellation of the CHOI FM licence a few years ago: see Genex Comm Inc v. Canada 2005 (leave to
appeal to SCC denied)…

The reasoning re s.2(b) in cases like Genex is, to put it charitably, unsatisfying, yet the SCC has shown no inclination yet to try to articulate the scope of freedom of expression on the airwaves. It will have to someday. The approach in the US is far more tolerant of restrictions on expression in broadcast media (think Janet Jackson) than in other contexts.

Melodyne’s Direct Note Access system changes absolutely everything about music production. No, really, it changes everything.

The greatest upside is that transformative use just became completely unstoppable. Of course, this will leads to bold new worlds in copyright litigation as artists go to court to claim that a minor-chord variation of, say, “Hot In Herrre” by Nellt isn’t transformative use. But take mashup technology and multiply it by one thousand, and that’s what Celemony have done here: created the ability to create new music out of the shards of shattered old music, completely unrecognizable and distinctive from the original.

Not, of course, that this will stop lawsuits from flying, which is why most countries desperately need to add a transformative use clause to the fair dealing exemptions of their copyright law, and have for some time. (Of course, Canada still doesn’t have legislative protection for parody, time shifting and format shifting, so I suppose we have to manage one thing at a time.)

The big downside of the Melodyne system which I think has gone mostly unnoticed is that it removes the requirement for actual musical skill from, say, an attractive-looking young band. Granted, this requirement was mostly gone anyway, as audio engineers and producers can turn a bunch of untalented shits into the next U2 given enough time and the opportunity to maybe play a few of the band’s instruments in the studio for them - but Melodyne makes it even easier and simpler.

The legal decision for Adbusters v. CBC just became available to read, and it’s… interesting.

The case, in brief, is thus: Adbusters, which for those not aware is a public advocacy organization with an anti-consumerist bent, tried to buy advertising time on Global Television and the CBC for their “buy nothing” ads. CBC aired one of them once; Global refused to air any of them. Adbusters then sued both of them, saying that the two had violated their Charter right of freedom of expression by not airing the ads. (Press release here.)

“But wait,” you say, “only the governments of Canada and the provinces and their various creatures of law, such as territories and municipalities, are bound by the Charter.” And in this you are correct. Adbusters attempted to argue that the CBC is a governmental body by virtue of the fact that it’s a crown corporation, but that one fails the smell test pretty quickly; simply being funded by the government doesn’t automatically qualify an organization as a creature of government. Universities are publicly funded, and they’re not subject to the Charter either - the Charter’s primary purpose of existence is to define the protections Canadian citizens have from the government. (Which, incidentally, for those not well-versed in Canadian constitutional law, is a huge topic of debate - the argument over the worthiness of negative freedoms versus positive freedoms is continual and ongoing. And loud, at least within a law school.)

So that argument was bad, and it probably tainted Adbusters’ (IMO) better argument: that since the airwaves are public, broadcasters are de facto maintaining a public resource. If Adbusters had gotten the judge to agree on this point, it wouldn’t be inconsistent with existing law either; Canadian jurisprudence recognizes that private organizations performing governmental duties are subject to the Charter. (Hospitals are an excellent example: most are privately maintained corporate bodies, but as the primary deliverers of government-funded health care in Canada, they’ve voluntarily undertaken a statutory duty and are thus agents of the government. Witness the difference between this and the CBC - there’s no legislation saying there has to be a CBC, after all, as any number of right-wing media watchdogs will complain repatedly.)

Of course, the judge struck down that argument too - I won’t get into the details, but suffice it to say Adbusters didn’t have a good argument for suing private entities, and the judge was referring to Canadian caselaw that I’ve studied in a first-year constitutional law course, so you know this wasn’t exactly advanced legal reasoning here.

However, there’s probably a case to be made for suing the government, because the government’s the one putting this policy (or lack thereof) in place which restricts public expression on the airwaves. The problem here is that Adbusters asked to add the CRTC as a defendant, and the CRTC isn’t a crown agency. It’s an unincorporated commission. In Canada, if you want to sue the federal government, you’re suing the Crown (or, well, Parliament really, but you get the gist) or an agency it’s created under statute and given power (the Army, the RCMP, et cetera). The CRTC isn’t a creature of statute, hence you can’t sue it. This was honestly kind of a dumb mistake (and in the writeup of the decision, I note that Adbusters withdrew the motion to add the CRTC as a defendant when the judge pointed this out, which is as close as the legal world gets to an admission of having fucked up).

So, moral of story: Adbusters is currently trying to portray the failure of their relatively weak (and in at least one respect pretty stupid) line of legal attack as a victory for the status quo. They’re obviously going to appeal the decision; if they’re smart, they’ll attempt to add Parliament or the Ministry of Heritage as a defendant, because that’s who they should be suing. However, the problem with Adbusters is that although I happen to agree with a great deal of their politics, they are sadly a bunch of self-righteous schmucks who think they’re a lot more clever than they really are.

Breaking news: New Jersey has banned the death penalty.

Unfortunately for criminals, this means now instead of death they will get life in New Jersey.

THANKYEW THANKYEW I’M HERE ALL WEEK TRY THE VEAL LADIES AND GENNELMEN IT’S DELISH

There is a case, universally known to all law school students, called Carlill v. Carbolic Smoke Ball, which is a case that absolutely every introductory contracts teacher uses for two reasons:

1.) It’s a good example of a case that shows how to distinguish an offer from an invitation to treat, and also sets the precedent for formation of a unilateral contract.

2.) It is called Carlill v. Carbolic Smoke Ball. It is about a small ball that smoked, which you were supposed to stick up your nose as a medical aid against the flu. Indeed, a reasonable Web fascimile of the original advertisement (with an animated GIF and everything!) can be found here. You quickly understand why this is such a popular teaching case - it has a silly name and the invention is downright stupid. (In fact, the Carbolic Smoke Ball would have probably increased your chances of getting sick.)

So when I found out that there was an online store named after the infamous Carbolic Smoke Ball, I was enthused! Surely there would be tons of nifty lawyer-themed crap on there than I would want to own!

Sadly, this is not the case. The crap at carbolicsmokeball.com is not fun crap. It is, at best, mediocre crap. A surfeit of standard lame catchphrases (of the “I can only please one person per day and today is not your day” variety), a few vanity items for the lawyer’s office, and… yeah, that’s more or less it.

There is no “Lawyers Do It In The Standard Befitting A Reasonable Person” T-shirt. There is no “I Drank A Ginger Beer With A Snail In It And All I Got Was A Legal Precedent For Punishing Negligent Behaviour” beer cozy. There is no “What You Know About Tax” musical keychain.

There is not even a replica Carbolic Smoke Ball, for crissake! The site is named Carbolic Smoke Ball and there is no Carbolic Smoke Ball!

Honestly, there has to be a way to get the name away from these people and make a decent law-themed-crap-for-sale site. It would make dozens of dollars. Maybe even ten dozens.