Showing posts with label Canada. Show all posts
Showing posts with label Canada. Show all posts

Wednesday, February 10, 2021

Copyright? I gotchyer Bernie mittens right here, Getty

CC mine, mine, mine
Is any blog complete without a Bernie mittens meme?  

The source photo for the now world-famous Bernie mittens meme is hardly in the public domain, despite what one sees in social media.  The photo was taken by D.C.-based Agence France-Presse photojournalist Brendan Smialowski.  As The New York Times reported in January, Smialowski also took one of the well circulated photos (via N.Y. Times) of a cyclist flipping off the Trump motorcade in 2017.  He's had a good attitude about his latest claim to fame, the Times tells:

"I genuinely enjoy the fact that people are having a lighthearted moment from a political photo," he said. "Things have been pretty tough for the last year and politics can be pretty nasty, and here are people just having fun."

But AFP licenses its photos through Getty Images, where Bernie Mittens (pop-up) can be yours for from $175 for a 0.2 megapixel small to $499 for a 12.6 megapixel large.  Are AFP and Getty as chill about meme culture as Smialowski?  As Fran├žois Larose and Naomi Zener write for Bereskin & Parr, "It’s all Good Fun Until a Copyright Lawyer Gets Involved."

Analyzing the case under Canadian law, Larose and Zener concluded that non-commercial memes are safe from infringement liability, but mittens merch makers had better watch out.  I'm lookin' at you, Etsy.  I am not so sanguine about U.S. fair use analysis, and I think the hypothetical case spotlights the too often yawning gulf between IP law and the reasonable expectations of real people, especially in the internet age.

Sunday, February 7, 2021

Birth announcement: Ontario court is reluctant parent of new tort of 'internet harassment'

UNESCO image CC BY-SA 4.0
The tort world is abuzz with a court decision in Ontario that has birthed a new common law cause of action for online harassment.

The facts that gave rise to the case were extreme.  The defendant was the subject of a New York Times story (subscription) on January 30 about the difficulty of remediating online reputational harm.  The perpetrator of the harassment targeted some 150 victims, including children, spat accusations ranging from fraud to pedophilia, and was adjudged a vexatious litigant and jailed for contempt of court.  Floundering in a dearth of effective enforcement mechanisms, the Ontario Superior Court of Justice (para. 171) recognized a "tort of harassment in internet communications" that means to be narrow:

where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The case is Caplan v. Atas, 2021 ONSC 670 (Ont. Super. Ct. Jan. 28, 2021).  Jennifer McKenzie and Amanda Branch at Bereskin & Parr have commentary.  Hat tip to Dan Greenberg for bringing the New York Times story to my attention.

Friday, October 23, 2020

Canadian privacy advocate deploys anti-SLAPP law in suit by electronic exam proctoring company

John Oliver's Big Coal SLAPP nemesis, Bob Murray, retires

Pixabay by Aksa2011
An IT specialist at a Canadian university is defending a lawsuit against a U.S. tech company over its allegations of copyright infringement and his allegations of infringement of student privacy.

Proctorio is an Arizona-based company offering online testing to academic institutions.  It's similar to ExamSoft, which is used by my law school, the Massachusetts Bar, and other academic and licensing organizations.

Needless to say, businesses in the mold of Proctorio and ExamSoft have taken off since the pandemic.  But these businesses are not without their problems, and their widespread use has brought unwanted scrutiny to their terms of service.

For example, the Electronic Frontier Foundation raised a red flag over ExamSoft in anticipation of its adoption to administer the California bar exam.  Examsoft's terms of service afford the company overbroad reach into the computers of users and, worse, collection of biometric data from studying their faces on screen.  My students have raised legitimate concerns about ExamSoft, and I will not be administering a "closed-book" final exam because I share those concerns.

UBC (GoToVan CC BY 2.0)

Related privacy worries motivated University of British Columbia learning technology specialist Ian Linkletter, MLIS, to tweet out the URLs of unlisted Proctorio instructional videos located at YouTube, meaning to make his case that the company is excessively intrusive of student privacy.  In response, the company sued Linkletter in British Columbia for copyright infringement and breach of confidence.

Now Linkletter has filed for dismissal under British Columbia's anti-SLAPP law.  Linkletter told the Vancouver Sun that fighting the lawsuit for just "more than a month has cost him and his wife tens out thousands of dollars."  Read more in Linkletter's public statement of October 16.

B.C.'s anti-SLAPP law was enacted unanimously by lawmakers in March 2019.  Oddly enough, B.C. lawmakers passed one of Canada's first anti-SLAPP laws in 2001, but quickly repealed it over doubts about its efficacy.  I wrote recently about the dark side of anti-SLAPP laws.  Never have I denied that they are sometimes deployed consistently with their laudable aims; rather, my concerns derive from their ready abuse when deployed against meritorious defamation and privacy causes.   

The case is Proctorio, Inc. v. Linkletter, Vancouver Reg. No. S-208730 (filed B.C. Sup. Ct. Sept. 20, 2020) (civil claim).

Bye, bye, Bob

[UPDATE, Oct. 27, 2020. To be clear, I wrote that sub-headline before this happened: "Coal giant Robert Murray passes away just days after announcing retirement" (Stephanie Grindley, WBOY, Oct. 25, 2020).]

In other, if distantly related, anti-SLAPP news, Bob Murray is resigning and retiring as board chairman of American Consolidated Natural Resource Holdings Inc., successor of Big Coal's Murray Energy.  It was a tangle with Murray that turned HBO comedian John Oliver into an anti-SLAPP champion.  And, I admit again, HBO's use of anti-SLAPP law was textbook and laudable after Murray brought a groundless suit against the network.

While I disagree with Oliver over anti-SLAPP, he's one of my favorite comedians and social activists, and definitely was the mic-drop-best live act I've ever seen.  Here are his key Murray Energy treatments from Last Week Tonight.

The first, June 18, 2017, drew Murray's lawsuit.

The second, November 10, 2019, followed up with a paean to anti-SLAPP, wrapping up with a musical tribute to Murray.

Monday, August 31, 2020

Horrors at Oak Ridge Psychiatric amounted to assault, battery, but lacked intent for IIED, Ontario court rules

From 1963 to 1988, patients involuntarily committed to the maximum-security Oak Ridge Mental Health Centre at Penetanguishene, Ontario, were subject to barbaric experimentation.  (From CBC (2016), above.) Treatments included LSD, other mind-altering drugs, and corporeal maltreatment, such as "the Capsule":

a soundproof, windowless, and constantly lit 8’ x 10’ room, with no furniture and an exposed toilet, where groups of patients, had their interactions monitored through closed-circuit television and a one-way mirror by patient observers outside....

Patients ... were frequently restrained or strapped to each other, and were most often injected with DDT drugs to lower their inhibitions. They were often paired so that patients diagnosed with schizophrenia experiencing a chaotic range of emotions where placed together with patients with antisocial personality disorders....

So egregious were the methods employed at Oak Ridge that 28 former patients now suing the Crown could have made out a fair case for medical negligence.  But the Ontario court was willing to find intentional torts, assault and battery, instead.  Notwithstanding lawful involuntary commitment and seeming express consent to treatment procured from patients, the extreme nature of the medical experimentation rendered the patients' informed consent impossible, the Ontario Superior Court ruled in June.

At the same time, the patients could not prove intentional infliction of emotional distress, for want of "double-duty intent" (my words); that is, although medical staff inflicted emotional distress intentionally in the short term, and notwithstanding the lasting psychological trauma that resulted, the defendants, however misguided, acted with the greater goal, or intent, of making the patients well.

Hat tip to Private Law Theory, which reported an examination of the case against an historical analysis of battery in Canadian common law by Omar Ha-Redeye, executive director of the Durham Community Legal Clinic in Oshawa, Ontario.

The case is Barker v. Barker, 2020 ONSC 3746 (CanLII) (Ont. Super. Ct. June 25, 2020) (Canada).

Watch and read more about Oak Ridge with Canadian Broadcasting (2016) (above) and in other sources.

Monday, December 23, 2019

Comparative law papers span globe, round out 2019

Comparative Law is so rewarding to teach that I'm probably overcompensated to do it.*  The inherently diverse nature of the course content, co-instructor Dean Peltz-Steele and I find, inspires students to creativity in their work in a way that much of law school never manages to do. Moreover, I think, that opportunity to be creative is why students respond favorably to the class, an oasis in the monotonous sea of bar courses.  We learn so much from their projects in Comparative Law, which adds in turn to the rewards of teaching the class.

At risk of pride, I wish to share, with students' permission, the impressive range of projects generated in our class this semester in 2019.  The following excerpts are of my construction, so any roughness in the editing is my fault.  No need to call for reference checks on any of these students; every one has our informed endorsement.  Let the hiring begin!

Markus Aloyan (Instagram), Executive Powers: Rebirth of a Soviet State [Armenia and the United States]. Therefore, the current political climate and constitutional crises in Armenia contain a historically driven, Soviet-Communist basis and more modernly developed Russian influence that came to fruition in the young Republic's 2015 Constitutional Amendments. The Russian-influenced reforms will be compared to the executive powers vested by the American Constitution, and analyzed for their causes and effects on the region. [Footnotes omitted.]

Tyler Hicks, England and United States Fishing and Hunting LawsThe purpose of this paper is to compare the very different histories of England and the United States for wildlife management, and then show how even though these countries have different systems, their overall goal to protect and further wildlife is generally the same in effect. England and Massachusetts generally face the same issues when it comes to enforcement of their laws as well. Both countries value the ability to be able to hunt and fish but understand that they have a duty to hunt and fish both ethically and humanely. In particular, I will compare the fishing and hunting laws of England and the laws of the United States, including Massachusetts.

William McGuire, Prostitution and Human Trafficking [Sweden, UK, US].  Prostitution and human trafficking are two intertwined issues that have prevailed throughout the course of modern history, and an analysis of the different approaches taken by different societies articulates a quadripartite view of prostitution as a whole.  The four views are the moralizing view, normalizing view, the patheticizing view and the victimization view.   These four views have produced three categories of legal systems, the absolute or partial criminalization of prostitution, the regulation and legitimization of prostitution, and the abolition of prostitution.... In this paper, I will articulate the three different legal systems through example.  I will use the Swedish Model to show how the partial criminalization of prostitution has affected Swedish society as a whole.  I will use the United States to show the American model of abolition of prostitution, with the exception of the state of Nevada.  Finally, I will use The Netherlands to show the regulation of prostitution.  I will then discuss the social pressures that led to the adoption of the legal system used in each country, specifically, whether the impetus was to combat human trafficking or not.  Finally, I will conclude by discussing whether there is convergence or divergence on a regional and global level.

Daniel Picketts, [Civil Rights in United States and Contemporary Afghanistan].  The evolution of civil rights has been driven by changing societal sentiments and ultimately cemented in different civilizations through changes in their laws. Currently in the United States, civil rights are the buzzword of the day and the public’s changing sentiment is demanding attention from the nations law makers. The current climate and inclusion of different classes that make up the civil rights of the United States has taken a winding path that has led it away from the oppressive, segregate founding, to the arguable progressive, inclusive current day.... Comparing two vastly different countries with glaring differences becomes productive when the factors that have effected changes in civil rights, while accounting for any differences, cultural or otherwise, are similar. What this comparison sets out to accomplish is to compare two different countries: the United States, and Afghanistan. The similarities in civil rights are few and far between. Instead what will be compared are the events in the two countries that are somewhat similar and the outcomes that resulted in the respective countries....


Christine Powers, A Comparison of the Child Custody Standards in the United States, New Zealand, and Ireland.  This paper is an examination and discussion of the different child custody definitions and terminologies and the standard deployed by the judicial system when making a child custody determination. The paper will discuss the different factors that a judge may or must consider when making a child custody arrangement. Further, the article will discuss whether or not there is a trend towards a unified standard and whether unification of the standard is possible.







Kiersten Reider, I Do But I Don't Want To: A Comparative Analysis of the Criminal Marital Rape Laws of the United States and India.  The aim of this paper is to provide a comprehensive analysis of the criminal rape laws of the United States and India, with an emphasis on marital rape. I will spend time discussing each country individually before drawing a comparison between the two. First, I will discuss the United States, briefly touching on the common law history of marriage, and criminal rape laws at the state and federal level. I will then discuss India, touching on its hybrid legal system, and the history of marriage and criminal rape laws at the state and federal level. Last, I will discuss the similarities and differences between the two systems.

Christina Suh, Comparing the Law to Court-Mandated Divorce Parenting Class Between the United States and South Korea. This paper compares legislative and judicial history in implementation of court-mandated parenting classes during divorce proceedings in the United States and South Korea.  The discussion demonstrates how evolution of social movements in each country changed its customary laws in the area of family law jurisprudence.  In exploring the multiple related causes behind the development of the mandated parenting class, parts of the paper will address how Korea’s high cultural context influenced its revision in laws to focus on the protection of minor children and promote gender equality.  Although there is a lack of strong studies that speaks to the direct effectiveness of the program in each country, the related research demonstrates the importance of educating parents about managing conflict and promoting the health and safety of children.  In conclusion, findings will show why changes in law that educate and decrease adverse child experience (ACE) is an approach that benefits society as a whole, in the long term....

Brittany Wescott, Juvenile Justice Converges on Principles Leading to the International Harmonization of the Juvenile Justice System [South Africa, US].  This paper explores the similarities and differences between two countries, South Africa and the United States, specifically Massachusetts, in relation to the international principles governing each respective juvenile justice system. This paper explains how both the South African system and the U.S. system developed, illustrating the various principles each holds dear. In addition, this paper looks specifically at the value behind setting a minimum age of criminal responsibility, the crimes juveniles can be charged with, the limitations on sentencing, and the handling of juveniles in and out of the court room. Regardless of ratifying the Convention on the Rights of the Child, both countries have made significant progress toward embodying the principles of the international community.

Kyle Zacharewicz, Wish You Were Here: A Comparative Analysis of U.S. and Canadian Refugee Law and PolicyImmigration and refugee policy of various nations has started to move in the trend of “locking down” the border. It has been seen, both with the increase in numbers of refugees and the occurrence of several populist movements across the globe gaining real traction, that many countries have begun to implement a “Nation First” mentality toward the growing threat of “those people,” the nomadic wanderers by happenstance of displacement and inability to return home.... While the exchange of ideas on the treatment of and allowances for Refugees in the greater European community are robust and important, this paper will instead take a deep dive into the myths of how two different countries, the only two neighbors on the continent of North America, deal with and treat refugees and asylum seekers in order to discover how truly they hold up currently.... I find it effective to analyze these two countries as they are connected by their common law systems, participation in international treaty-making, similar legal structure in immigration and refugee procedure, and a border.... It is easy to see how the policy of one can affect the other, and my goal after explaining the reality of how these systems operate today is to show how the United States has clamped down on its immigration policy, and why Canada largely has the potential makings of a similar populist movement toward “locking down” the border.

Congratulations, Comparative Law students!


*Hyperbole.  I'm not overcompensated at UMass, despite an inexplicable vote by the tenured faculty to disallow anyone asking for a raise.  Compare Salary.com with MassLive database.  Nonetheless, I will remain grateful for the opportunity to have worked with and learned from my students.