The Other Google Spot, and Florida Divorce Attorneys

By: Omar Ha-Redeye · February 8, 2010 · Filed Under Family Law, Humour, Marketing/PR in Law, Pop Culture · Add Comment

Google’s ad last night attracted quite a bit of attention.

Kenneth Corbin of Internet News said,

For Google, Super Bowl Sunday was something of a departure.

In the third quarter of the game, Google (NASDAQ: GOOG) aired a nearly full-minute ad promoting its search engine, marking one of the few television appearances for the company that rarely advertises and its first spot during a Super Bowl.

At it happens, the ad, “Parisian Love,” had been online for several months, posted on Google’s “Search Stories” page on YouTube where it has been viewed more than a million times.

Dan Goldgeier of AdPulp points out that so has this parody from Slate:

Florida divorce attorneys almost make the cut. Is Google trying to tell us something? Is Slate?

h/t Paull Young

An Interview with Quebec’s first black lawyer

By: Contributor · February 7, 2010 · Filed Under Diversity in Law, Law Career, Law School · Add Comment

Anthony Morgan, a McGill law student and president of the Black Law Students’ Association of Canada, interviewed Frederick Phillips, McGill’s first black law grad and Quebec’s first black lawyer.

You can read the interview on inFocus online, McGill’s news magazine.

Post tags: Anthony Morgan, Black Law Students’ Association of Canada, Frederick Phillips, inFocus

Liebeck v. McDonald’s Restaurants – Redux

By: Omar Ha-Redeye · February 7, 2010 · Filed Under Health Law, Torts · Add Comment

Aimee Green of The Oregonian reports,

An attorney for Aurora Hill filed suit in Multnomah County Circuit Court Wednesday afternoon — stirring memories of a controversial 1994 suit in which a jury awarded $2.86 million to an Albuquerque, New Mexico woman who spilled scalding-hot coffee on herself, suffering severe burns that required hospitalization. Upon appeal, the parties settled for an undisclosed amount.
…She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.

See our previous posts:

Criminal Defence Lawyers Need Not Apply

By: Joel Welch · February 6, 2010 · Filed Under Criminal Law, Diversity in Law, Politics · 3 Comments

Newsflash – the Ontario Government is looking for outstanding members of the public to sit on 27 separate police services boards throughout the province. Criminal defence lawyers need not apply.

What? Did I read that right?

Strangely yes. On the Ontario Government Public Appointment Secretariat’s website found at: http://www.pas.gov.on.ca/scripts/en/upcomingVac.asp, there are nearly 200 postings for various positions on provincial agencies, boards and commissions.

But in the requirement section for the police services board postings, it states, “No judge, justice of the peace, police officer or person who practises criminal law as a defence counsel may sit as a member of a board.”

Presumably this restriction is present because of a perceived conflict of interest by the enumerated professions. But in the case of criminal defence lawyers, I don’t see it.

Is it suggesting that criminal lawyers are blindly partial to criminals and that they do not want to live in safe communities? Or perhaps they are too inclined towards Charter rights, fairness and the rule of law?

Unlike the police and members of the judiciary, the defence bar is not paid through government salaries. If they are paid government money at all, it is by piecemeal legal aid certificates. But if you think about it, it is in everyone’s best interest including defence lawyers for the police to do a good job.

Let’s be clear, police services boards exist for effective administration of police organizations. They do not, or at least should not, direct or participate in police operations. Their role is to set administrative and fiscal policy.

Accordingly, a defence lawyer serving on a police services board is not in any conflict of interest.

Neither is it a general conflict for other professions like chartered accountants, business owners, or Commedia dell’Arte clowns for that matter to serve. The question that should be asked is who best can serve in the required capacity.

To say that criminal defence lawyers are in conflict because they make their living representing “criminals” is to miss the point. Having a thorough understanding of the criminal justice system is an asset and indubitably would be a positive influence on the effectiveness of police services boards.

Post tags: Criminal Law, police

The Politicization of Justice Reform

By: Ryan MacIsaac · February 4, 2010 · Filed Under Criminal Law, Legal Reform, Politics · 1 Comment

This afternoon, Julian Falconer gave a talk at the Empire Club of Canada titled “The Politics of Punishment: Depoliticizing Justice Reform.” He focused primarily on the Harper government’s “tough on crime” agenda, and made some most interesting observations.

Canada spends $3.5 billion per year on crime. It costs $108,000 per year to incarcerate one inmate. Stephen Harper is proposing $5 billion in “tough on crime” spending, with none of the increase earmarked for crime prevention.

There is a systemic dilemma: in politics, proponents of judicial reform are forcibly grouped into one of two camps; Falconer referred to this division as “hug-a-thug vs. Law and Order.” If a politician questions the “tough on crime” approach, they are instantly categorized as weak, as someone who would embrace the criminal threatening your family.

Falconer compared Harper’s agenda to similar “tough on crime” agendas implemented decades ago in both California and New York State (largely part of the War on Drugs). Incarceration rates were dramatically increased, and today California houses 170,000 prisoners.

The American experiment has failed. While incarceration rates increased dramatically in the US compared to Canada, the crime rates of both countries remained similar. The US now has a financially unsustainable prison population, and nothing to show for it. Arnold Schwarzenegger has abandoned the “tough on crime” approach in favour of funding schools.

Studies have shown that incarceration raises an individual’s disposition toward crime. Incarceration disproportionately affects native communities, the poor, the mentally ill, and other disadvantaged groups. Yet instead of seeking to remedy the causes of crime, instead of seeking to ameliorate the conditions of these groups, we have the newly-minted Senator Bob Runciman crowing,

“For too long, the Ignatieff Liberals have abused their majority in the Senate by obstructing law-and-order bills that are urgently needed and strongly supported by Canadians. Today, this abuse comes to an end.”

This despite the fact that crime rates have been dropping for years. This despite empirical evidence that tough-on-crime has failed in the US. The politicization of dialogue creates the false illusion of irreconcilable extremes. The reality should not be “hug-a-thug vs. Law and Order” – there is a solution that rests without the extremes.

Post tags: Julian Falconer, Stephen Harper, tough on crime

The Unrepresented: An Update

By: John Magyar · February 4, 2010 · Filed Under Family Law, Legal Reform, Politics, Pro Bono, Uncategorized · 5 Comments

A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.

I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.

Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..

Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.

Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.

Post tags: John Magyar, Justice R. John Harper, justicenet, Legal Aid Ontario, mottahedin, unrepresented

Dr. Gabor Maté of Insite

By: Omar Ha-Redeye · February 3, 2010 · Filed Under Health Law, Politics · 2 Comments

Democracy Now has an interview with Dr. Gabor Maté of Insite,

AMY GOODMAN: The Obama administration’s budget proposal for the Office of National Drug Control Policy sets aside nearly twice the amount of funding for law enforcement and criminalization than for treatment and prevention of drug addiction. Out of a total of $15.5 billion, some $10 billion are used for enforcement. National Drug Control Policy Gil Kerlikowske praised the numbers as reflecting a “balanced and comprehensive drug strategy.”

Well, just last year, the newly appointed drug czar and former Seattle police chief had called for an end to the so-called “war on drugs,” raising hopes among advocates of harm-reduction approaches to curbing drug use. In an interview with the Wall Street Journal last May, Kerlikowske said, “People see a war as a war on them. We’re not at war with people in this country.”

Well, I’m joined right now here in the Democracy Now! studio by a doctor who has spent the last twelve years working with one of the densest populations of drug addicts in the world. Dr. Gabor Maté is the staff physician at the Portland Hotel, a residence and harm reduction facility in Vancouver, Canada’s Downtown Eastside. Dr. Maté also treats addicts at the only safe-injection site in North America, a center that’s come under fire from Canada’s Conservative government led by Stephen Harper.

Dr. Gabor Maté is the bestselling author of four books. His latest, just out in the United States, is called In the Realm of Hungry Ghosts: Close Encounters with Addiction…

DR. GABOR MATÉ: Well, the first point to get there is that if people who become severe addicts, as shown by all the studies, were for the most part abused children, then we realize that the war on drugs is actually waged against people that were abused from the moment they were born, or from an early age on. In other words, we’re punishing people for having been abused. That’s the first point.

The second point is, is that the research clearly shows that the biggest driver of addictive relapse and addictive behavior is actually stress. In North America right now, because of the economic crisis, a lot of people are eating junk food, because junk foods release endorphins and dopamine in the brain. So that stress drives addiction.

Now imagine a situation where we’re trying to figure out how to help addicts. Would we come up with a system that stresses them to the max? Who would design a system that ostracizes, marginalizes, impoverishes and ensures the disease of the addict, and hope, through that system, to rehabilitate large numbers? It can’t be done. In other words, the so-called “war on drugs,” which, as the new drug czar points out, is a war on people, actually entrenches addiction deeply. Furthermore, it institutionalizes people in facilities where the care is very—there’s no care. We call it a “correctional” system, but it doesn’t correct anything. It’s a punitive system. So people suffer more, and then they come out, and of course they’re more entrenched in their addiction than they were when they went in.

Post tags: Dr. Gabor Maté, insite

Lack of Openness on New Devices Concerning

By: Vitali Berditchevski · February 3, 2010 · Filed Under Technology · Add Comment

I have been noticing recently that there have been decisive steps taken against openness when it comes to new devices, and it bothers me. Before I go into this further, let me explain what I mean by “openness”.

Openness

In order for any device to be useful, it needs some kind of software. This is true of everything electronic, from calculators, to TV’s, to telephones and to most obviously, computers. In the past few years, there has been an explosion in computer-like devices, that is hardware that has an operating system and which can run software other than what is preloaded.

To use an easy example, take a cell phone. Originally, all the cell phone is programmed to do is make phone calls. Then, someone said “why don’t we put games on it?”. Then, “why not a camera?”. Followed by “why don’t we connect it to the internet?”. Lo and behold, we have smartphones. We can now extend the capabilities of our phones and similar devices in ways that were not imagined by their original designers.

Original multi-purpose phones were relatively open. This was done mostly as a convenience to developers: they did not want to reinvent the wheel by writing a new operating system, so they used one that was time-tested: java. This meant that anything that was created using java mobile edition (J2ME) could probably run on a java-enabled cell phone.

Even the original smartphones were open (“smartphone” is a difficult concept. I’ll refer to anything that connects to the internet and allows user-installed programs as a “smartphone”). Windows Mobile (used to be called Windows CE) allowed developers basically unlimited flexibility in creating and distributing software for Windows Mobile devices. Installing software did not require any reverse-engineering, hacking or any type of security bypasses.

I use the term “openness” to refer to precisely this flexibility. Openness does not mean open source, does not mean free software, does not guarantee any freedoms to users. However, developers have a lot of freedom that they can choose to pass on to their users (or not). They can distribute their creations in any form, on any website, charge fees or not, etc.

Current State

Since the introduction of the iphone, there has been a trend in the opposite direction. To use the example of the iphone itself, the only (legal) way for software developers to distribute their wares is through a process that is controlled by Apple from end to end. Apple controls what applications can be distributed, it tracks each user that installs the application, and of course, takes a nice commission from the sale of each app. There are obvious problems with such end-to-end control, including this one.

The problem is that this is not limited to the iphone. Blackberry is doing something similar with App World, although I believe it’s still possible to install apps without appworld. Even the supposedly open source Android platform is jumping on the bandwagon with Android Market.

The only holdout thus far is Windows Mobile probably because the users of those phones are way too used to not having any restrictions on them. We will see what happens once Windows Mobile 7 comes out later this year. I would not be surprised if it has new limitations on the type of software that can be installed.

Of course this is not a problem that is limited to phones. For example, the PSP, a device that is theoretically capable of many computer-like features has been completely locked down and can only play games (that you have to buy and where Sony can take a cut). The Wii has bluetooth functionality that can only work with its own wiimote. Why not other bluetooth devices? This is not even considering upcoming hardware such as the Apple iPad that will mimic the iphone in every way in terms of dealing with third party software.

This is a shame

The main reason I don’t like this is that a lot of potential remains under lock and key. If you look at what the latest iPod Touch is, it’s a computer with 800MhZ, 256MB of RAM, and a 32 (or 64) GB hard disk. I had a computer with similar specs in 2002. My computer in 2002 could do a lot more than my iPod today, even though they are technologically similar. The reason has nothing to do with technology, but has everything to do with poor decisions that keep such devices locked down.

Solutions

Unfortunately, the current solutions to this problem are quasi-legal at best (downright illegal at worst). It involves a healthy dose of hacking and looking for exploits. This in turn can lead to serious breaches of security when the same hack that can be used to install an unauthorized program is used to distribute a virus (again, an iphone example).

The easiest way to prevent this is to avoid having as many people looking for these kinds of hacks. The overwhelming majority of hackers are not malicious people and would not be hacking if their phones were open to third party software. And even if they were hacking, there would not be a need for a wide dissemination of these hacks. This means that the efforts of people who mean well would not end up in the hands of the malicious.

The Business Case

I am well aware of the fact that companies that release locked down devices see a business opportunity in controlling the software that can be loaded onto them. Indeed taking a cut of every program sold online is a good revenue model. However, opening up these devices will inevitably increase their sales. This is pure common sense: the more a device can do, the more people it attracts.

By the way, I am not saying that hardware manufacturers have to stop selling software. Indeed it may continue to make a lot of sense to sell through a centralized place where users know and trust the source of the program. Opening up the device up to users “at their own risk” though needs to be done. Users need to have control over their devices.

Conclusion

The PC industry has realized a long time ago that openness is the way to go. It allows devices to what was never intended or imagined by the original designers of computers. Who would have through 40 years ago that computers would be used for live DJing or advanced image creation (Traktor and Photoshop, respectively)? The engineers that created modern computers 40 years ago were looking for advanced calculators and processing power. Openness and ingenious software developers did the rest.

It’s time for the same thing to happen to our phones, games, and other devices.

Cross-posted at Lawyerling.ca

Post tags: openness, Technology

“Bleeding hearts in law school”

By: Ryan MacIsaac · January 31, 2010 · Filed Under Civil Rights, Constitutional Law, Criminal Law, International Law, Law School, Politics · 8 Comments

On Friday, Kory Teneycke, a former top adviser to PM Stephen Harper, was interviewed on CTV’s Power Play about the Khadr decision:

Here’s a transcript of the best parts:

All of the same sob story that we are hearing for Omar with a slightly different spin on it. This guy is a little terrorist, he deserves to stay in jail until he faces a trial. What Omar Khadr’s lawyer would like and some of the bleeding hearts in law school would like to have Omar Khadr come back to Canada and walk free. In fact I think they would take it a step further, like to sue the Canadian government and try to get him millions
…
So, I don’t think that Canadians are going to be offended, this sort of line of “his rights are abused” might win applause at law schools but not with regular Canadians.

Aside from showcasing the Harper government’s ideological approach to human rights, Teneycke’s dialogue serves to remind us of the importance of the Charter with respect to individual rights. As eloquently stated by then-Chief Justice Dickson, the Charter safeguards minorities from the “tyranny of the majority” (R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 at para. 96).

I personally hope that most Canadians would prefer to see an alleged terrorist brought before our functional justice system, rather than lower our justice system to a terrorist-like level of disregard for human rights. But even if the Harper government, and the majority of Canadians, wouldn’t care to see Khadr treated as a human being, there is still Charter-based justification for the judiciary (and the “bleeding hearts in law school”) to seek protection of his fundamental rights.

Post tags: Kory Teneycke, omar khadr, Stephen Harper

Collaborative Family Law v. The Hartshornes

By: John Magyar · January 30, 2010 · Filed Under ADR/Mediation, Family Law, Uncategorized · 2 Comments

Divorce litigation appears to be so wasteful. Precious money, time and emotional energy get consumed in battles that could be resolved so much more quickly through negotiation; and processes that promote settlement out of court like collaborative family law seem so obviously to be the better way.

However, while researching a paper on prenuptial agreements I happened upon the trials and tribulations of the Hartshornes. This is an extraordinary story – They disputed a prenuptial agreement all the way to the Supreme Court of Canada then fought about how to apply the decision, who gets the matrimonial home, how much to pay for the other party’s share of the home and finally over costs. All told they went to Court nine times over ten years.

It occurred to me that a collaborative process would have been very dissatisfying to this most combative couple. Although the notion that litigation should be avoided seems like such a reasonable point of view, it could be very patronizing to push this view on someone who is experiencing a painful marital breakdown and genuinely wants to fight.

No doubt lawyers who practice CFL are keenly aware of this, but the Hartshorne story makes the point so abundantly clear. It’s a monument to post-matrimonial melee. And to their credit, the Hartshornes fought with lawyers rather than fists … but I still scratch my head in amazement. Ten years in court to end a twelve-year marriage. Incredible.

Post tags: collaborative family law, Family Law

CBC and Copyright

By: Devin Johnston · January 30, 2010 · Filed Under Intellectual Property · 9 Comments

Scott Tribe pointed out on his blog today that the CBC has implemented new copyright policies on its online news properties. As boingboing explains, the CBC has signed up with iCopyright, an American service which sells licences to digital content creators to allow them to re-post or re-publish CBC content for a monthly fee. Cory Doctorow points out that this is the same service that purports to sell readers of Associated Press content the ability to quote 5 or more words from AP stories.

As a business strategy, I think this is clearly going to be a spectacular failure. Any company large enough to pay $250/month to re-post a single article can also create its own original content at a lower cost. Consequently, I don’t imagine that the CBC will sell very many licenses.

Of course, selling licenses isn’t really the point of the new policy. The point is scare small, independent digital content creators from sourcing the CBC. As Doctrow observes:

The cherry on the cake? iCopyright offers a reward of up to $1,000,000 for snitching on bloggers who don’t pay Danegeld to Canada’s public broadcaster to quote the works they funded.

On top of that, the licensee must “agree not to criticize the CBC, the subject of the article, or its author.”

This, too, seems like an unsound business strategy to me. When bloggers link to or reference CBC’s online content, it is almost universally the practice of good bloggers to provide a link to the original content. This drives traffic to the CBC’s online properties both directly (through people clicking on the link) and indirectly (through the Google PageRank benefit which accrues from inbound links, causing CBC’s stories to achieve more favourable rankings in search results). The CBC seemed to acknowledge the important role that bloggers play in the online news ecosystem when it introduced features such as their “most blogged” content. Recently, these innovative social media features were removed; now they are being replaced with restrictive copyright policies that discourage bloggers from linking to CBC at all.

The CBC, like any other content provider, has a right to protect its intellectual property within the limits of copyright law. To the extent that other parties wish to re-publish the CBC’s content in full and without comment (by the way, good bloggers never do this anyway), the CBC has the right to dictate the terms and conditions.

However, as the Supreme Court made perspicuous in CCH Canada Ltd. v. Law Society of Upper Canada, there are limits on the scope of copyright protection. The Court is extremely clear on the point that fair dealing is not simply a defence to a claim by a copyright holder; it is a distinct right held by users of copyright material. In other words, “Any act falling within the fair dealing exception will not be an infringement of copyright [emphasis added].”

In determining whether the use of copyright material falls within the fair dealing exception, the court will look at six factors (I have provided short extracts from the case to explain each factor):

The purpose of dealing.. “In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting”
The Character of the Dealing. “If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.”
The Amount of the Dealing. “If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
Alternatives to the Dealing. “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
The Nature of the Work. “Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
Effect of the Dealing on the Work. “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”

On his site, Scott proposes three ways of circumventing the CBC’s iCopyright program. First, he proposes to paraphrase any material he uses from the CBC. Second, he says that he will seek out alternative sources that use more permissive copyright policies. Finally, he references a commenter on boingboing who suggests that one user can purchase a license and then every other user can link that original licensed use. I question the legality of the third option, as this would likely still constitute an infringement of the original work.

Not being a lawyer, I am prohibited from offering legal services or advice to anyone. Personally, though, I will continue to quote from and source CBC’s copyright material on my blog, without purchasing a license (as I did in this post). When I quote from CBC, I will link to the original source. I will also continue to ensure that any use I make of copyright material falls within the fair dealing exception by quoting minimally and supplementing quotations with my own original analysis, commentary, criticism, review, and research. It’s not at all clear to me why I would pay $250/month to exercise my existing legal rights, while also contracting out of my right to criticize the original source.

There is one thing that I will change as a result of CBC’s new iCopyright policy. From now on, whenever I link to CBC, I will use the the rel=”nofollow” construct. This attribute instructs search engines like Google not to index the link as part of its PageRank algorithm. Essentially, the links don’t help their destination sites to achieve higher rankings in search engines. I already use this construct when linking to sources such as the Conservative and Liberal parties (being a New Demcorat, I want to ensure that I’m not giving any advantage, however trivial, to my political opponents). From now on, CBC will not get the trivial benefit they enjoy in terms of search engine ranking when I link to them. This practice will continue until CBC adopts a more balanced and realistic approach to copyright.

Post tags: CBC, copyright